The Impact of International Labour Organisation on the Development of Industrial Relations in Turkey (A Critical Approach from the Perspective of International Norms on Freedom of Association)
Toker DereliFollowing debate over varios draft proposals and efforts of social dislogue during he past few decades. he Turkish legislatura had finally enacted the labor Unions and Collective Labor Agreements Act of 2012, no.6356. aiming to bringe the lebor relaions law of Turkey into confority with ILO norms on freedom of asssocaition as well as to find solutions to prccical problems of implementation , Act no.6356 carries pofitive provisons , but it also seems flawed in certain respscts (e.g. te loopholes in the protection of the worker against acts of anti-union discrimination, maintenanca of the so-called ‘double criteris ‘ for the union’s authorization for collective bargaining, certain strike restrictions in sectors not deemed to fall into essential servies in the ILO’s strict definition, suspension of stikes and lock-outs for reasons of national security and public health. Despite the intoduction of of various positively perceived positive amndments, therefore tne new Act is likely to be challenged in national and international forums. This article is a generel evaluation of the main chanes brought about by Act no.6356.
Uluslararası Çalışma Örgütü’nün (ILO’nun) Türkiye’de Endüstri İlişkilerinin Gelişmesine Etkileri (Uluslararası Sendika Özgürlüğü Normları Açısından Eleştirel Bir Yaklaşım)
Toker DereliSon on yıllar içinde çeşitli yasa taslaklarının tartışılmasını ve paydaşlar arasında sürekli sosyal diyalog çabalarını takiben yasa koyucu yeni 6356 Sayılı Sendikalar ve Toplu Sözleşme Kanunu’nu 7 Kasım 1912 tarihinde yasalaştırmıştır. Türk çalışma hukukunu ILO sözleşmeleri ile uyumlu hale getirmeyi ve uygulamada karşılaşılan çeşitli sorunları çözmeyi amaçlayan yeni yasa bazı olumlu düzenlemeler dışında aynı zamanda bazı boşluk ve çelişkili hükümler de içermektedir; örneğin işçinin sendika karşıtı ayrımcılık eylemlerine karşı korunmasını düzenleyen hükümlerin yetersizliği, sendikaların toplu sözleşme yetkisi kazanabilmeleri için aranan çift kriterin muhafaza edilmesi, yaşamsal hizmetler kavramına girmeyen bazı sektörlerde grev hakkı üzerindeki kısıtlamaların ve grev ertelemelerinin devam ettirilmesi gibi eleştiri konusu bazı düzenlemelerin, yasanın çıkışından bu yana yapılan bazı değişmelere rağmen kısmen de olsa hala devam ettirilmesi bu olumsuzluklardan bazılarıdır. Bu durumda olumlu yönlerine rağmen, mevcut yasaya ulusal ve uluslararası forumlarda yönetilecek eleştirilerin devam etme olasılığı vardır. Kısmen yazarın ILO’nun denetim organında hükümet sözcüsü sıfatiyle edindiği deneyimlerine dayanan bu makalede yasanın getirdiği temel bazı değişmeler özet niteliğinde genel bir değerlendirmeye tabi tutulmuştur..
The article below is a tribute to the centennial foundation of the International Labour Organization. Following deliberations over various various criticisms by the ILO, the Turkish legislature had enacted the new i legislation of Turkey, i.e. the Labor Unions and Collective Agreements Act of 7 November, 2012, no.6356 which constitutes the present legal framework of industrial relations in Turkey. Aiming to bring the labor relations law of Turkey into conformity with ILO norms on freedom of association as well as to find solutions to various practical problems of implementation, Act no.6356 carries various positive provisions, i.e.simplifying some of the earlier formal requirements; restrenghening the job security of the union shop steward; clarifying the rights of union administrators; abolition of the condition for public notary approval for the worker’s acquision of and withdrawal from union membership. But the Act also seems flawed in certain respects, i.e. uncertainties in the protection of the worker against acts of antiunion discrimination; maintenance of the socalled “double criteria” for collective bargaining authorization, ( that is , while seemingly reducing the first condition to 1/% from the previous 10% cent industry-level representation , making the union’s ability to achieve the authorization certificate more difficult due to forced mergers among industries ; certain strike restrictions in sectors not deemed to fall into essential services in the strict sense of the ILO; and suspension of strikes and lock-outs by the government due to reasons of general healt or national security where, in the absence of agreement between the parties, industrial conflict is to be suspended and the process must result in compulsory arbitration.
More recently with a view to lessen the workload of labor courts, the amendment to the Labor Courts Act by Act no. 7036 dated 25 October 2017, has in the settlement of workers’ claims including reinstatement demands brought the precondition of calling on the process of ‘mediation’ before filing the lawsuit. Although mediation shall not entail a binding decision, it may lead the worker to accepting a lower amount than what he would be awarded under legal action in the court system.As the mandate of the so-called ‘mediation as a precondition for legal action’ encompasses requests for compensation in union-related dissmissals as well, the mediation technique may create consequences detrimental of the protection of freedom of association and as such is likely to be challenged before the Constitutional Court or to be brought to the agenda of the ILO.
Furthermore, coupled with the declining rate of union density in Turkey, the prevalence of the so-called ‘single channel representation’ i.e. the absence of workers’ representatives and/or a works council system at least in workplaces where union shop stewards do not exist, seem lead to various voids which must be filled for the performance of various functions in the Turkish industrial relations system (e.g.collective layoffs) . Therefore this paper advocates the adoption of a ‘dual-channel representation system including labor labor unions and elected employee representatives’ who must be active anyhow as Turkey had ratified ILO Convention 135 in the year 1993.
At a stage where the government’s avowed goal was to launch reforms to bring Turkish industrial relations into conformity with international norms on freedom of association, the outcomes of Act no. 6356 have been rather mixed, in some respects disappointing, in others encouraging. Various dimensions of Act no.6356 are clearly tilted against the interests of workers and labor unions Thus, despite the introduction of various positive elements and certain ameliorations made since the year 2012, Act no 6356 is still likely to continue being challenged in national and international fora.
This article, based partly on the observations of the writer as the government representative in the supervisory organs of the ILO, is a general evaluation of the main changes brought about by Act no.6356 on freedom of association in Turkey as well as on a few a other amendments made after its passage in 2012. Despite the presence of the above-stated weaknesses, , it is clear that the present legal framework of industrial relations in Turkey represents a better-balanced and advanced stage than the previous legislative environments . In reaching this level of maturity, the impact of the ILO and the jurisprudence of the ILO’s Freedom of Association Committee, coupled of course with the contributions of the Turkish social partners should be acknowledged.
