Two steps forward,one step back,or vice versa: the new legal framework of collective labour relations in Turkey 1

Abstract

German

French

Due to the late start of industrialization and development of a working class and democratization in Turkey, all the labour and democratic rights gained through class struggle elsewhere in Europe were introduced in Turkey by the state. This saw the detailed framework of Turkish industrial relations being defined by law, with trade unions not challenging the limits to enhance their rights. Previous collective labour acts had been criticized for decades as a heritage of the 1980 military coup. Following amendments to the 1982 Constitution in 2010, a new collective labour act, the Trade Union and Collective Agreement Act (TUCAA), was adopted in 2012. In this article, the Trade Union and Collective Agreement Act will be examined from the perspective of the triad of the right to organize, the right to bargain collectively, and the right to strike, with the main changes also being reviewed in a general comparison with the previous acts.

Keywords

Unionism collective bargaining strike Turkey Trade Union and Collective Agreement Act

Introduction

A candidate country for joining the EU since the 1960s, Turkey is characterized by low union density, decentralized collective bargaining and an authoritarian state, as well as by hostile labour-employer and labour-state relations. The main actor in the Turkish industrial relations system is the state, with neither a bourgeoisie nor a working class in the European sense having developed in the Turkish pre-Republican period. As a result of statist economic policy in the early years of the Turkish Republic, the state became the leading actor in industrialization, adopting – in its role as the country’s biggest employer – various acts to regulate both individual and collective labour relations. Labour rights gained in Europe through intense class struggle were conferred unilaterally in Turkey by the state (Dereli, 2006: 38), without the involvement of workers and employers, the two main players in any industrial relations system. This in turn led to in-depth legislation non-existent in other European countries.

The current industrial relations system was established during the military regime of the early 1980s while economic restructuring was underway in Turkey. The backbone of the system was new labour legislation, made up of the 1983 Trade Union Act (TUA) and the 1983 Collective Labour Agreement, Strike and Lock-out Act (CLASLA), both based on the 1982 Constitution. Imposing severe restrictions and administrative controls on unions, this legislation remained in force for almost 30 years without any major changes and constituted the main legal framework of Turkey’s present industrial relations system (Uçkan, 2007: 123). Throughout the 1980s, the state actively intervened in industrial relations, moving to control and weaken trade unions and collective bargaining systems. Following the military coup of 1980, the military government banned collective bargaining, strikes and lock-outs until May 1984 and sentenced more than 200 trade unionists and union experts to prison. The National Security Council also suspended the activities of the Confederation of Progressive Trade Unions (DİSK) and its affiliated unions, with DİSK unable to resume its activities until 1992.

Unable to resist de-unionization, Turkish trade unions suffered major membership losses from the early 1980s onwards. The current union density rate is 9.21 per cent and there are 1 001 671 union members according to the latest official statistics published in January 2013 by the Ministry of Labour and Social Security.² Furthermore, collective agreements covered only 761 473 workers in 2011.³ The current number of union members is dramatically low when compared to the 1960–1980 period, the golden era of Turkish trade unionism, with 2 088 219 union members in 1970 and 5 465 109 union members in 1979 (Ministry of Labour and Social Security, 1998: 95). Although these figures were neither realistic nor consistent, the union density rate was still much higher than today.

The Justice and Development Party (AKP), in power since 2002, has also played a major role in the decline of unionism in Turkey, marginalizing labour as an important segment of civil society while emphasizing civil society and democratization more generally. Due to its Islamic roots, the AKP supports the philosophy that the relationship between the worker and the employer involves a duality of duties and rights in the spirit of brother/sisterhood, not class antagonism. However, AKP accomplishments favour employers and fall far short of creating a brother/sisterhood relation between social partners (Yıldırım, 2006). In other words, the AKP government has been more sensitive to the demands of the employers than to those of organized labour. The AKP reforms to Turkey’s legal system, particularly the ones in the realm of social policy, aim to create and protect the institutions supporting the market-based allocation of resources (Özdemir, 2012: 44). The new Labour Act⁴ adopted in 2003, a series of strike postponements, and the commodified social security system in the early 2000s offer clues to the AKP’s business-friendly and market-based policies.

Due to the infringements of union rights by both employers and the government, Turkey has been criticized by the International Labour Organisation (ILO) and the European Union (EU), with the latter’s 2012 Progress Report stating that:

There has been no progress in alignment with the acquis in the field of labour law … High thresholds for entering into collective bargaining continue to significantly restrict the possibility of collective agreements and consequently impede the full exercise of the right to bargain collectively. Moreover, the lack of release of data on the number of workers in each sector by the authorities has prevented the conclusion of any new collective agreements for several months. Turkey excessively restricts the right to strike. In May 2012, the government adopted a law excluding also workers in the civil aviation sector from the right to strike. Following their protest against losing this fundamental right more than 300 airline workers were fired. Increasing the number of activities in which workers are deprived of this right takes Turkey a further step away from respecting full trade union rights in line with EU and ILO standards. Turkey also excessively restricts the right to establish or join trade unions as they cannot be set up along professional categories or in certain sectors, for example for civilian staff working for the Ministry of Defence. As a result of the restrictive legislative provisions and difficulties in exercising trade union rights, the level of unionisation and the coverage of collective agreements remain very low (European Commission, 2012: 64–65).

Besides this international criticism, both academics and trade unions in Turkey criticized the TUA and CLASLA as the fruit of the military era (1980–1983). Responding to this criticism, the legislature amended the 1982 Constitution in September 2010, removing a number of restrictions on union rights. The referendum of 12 September 2010 resulted in the acceptance of amendments to 27 constitutional articles. Until 2010, 68 of the total 177 constitutional articles had been amended; with the 2010 amendments, this figure reached 95 (53 per cent) (Kalaycıoğlu, 2012: 1). These latest amendments boosted the trade unions’ ambition for a better and more progressive new collective labour act. After intense and often bitter debates, the new Trade Union and Collective Agreement Act (TUCAA), combining the former TUA and CLASLA, was adopted in October 2012, though without employer and union consensus. However, restrictions to union rights remain and a number of regulations are contradictory, leading to national and international unions lobbying for the Turkish President to veto the Act. The International Trade Union Confederation (ITUC), the European Trade Union Confederation (ETUC) and the Council of Global Unions all expressed their concerns and demands regarding the new Act to the Turkish government and the President. The ILO drafted a memorandum pointing out numerous articles in the Act violating ILO standards, with a particular focus on Conventions 87 and 98. The European Commission similarly declared that fundamental union rights were not improved by the new Act. Despite all this criticism, the new Act was approved, coming into force in November 2012. This article examines the TUCAA from the perspective of the triad of rights to organize, to bargain collectively, and to strike, with the main changes also being reviewed in a general comparison with the previous acts.

The right to organize

In Turkey, only workers and public servants have the right to organize, with the retired, the unemployed and students not allowed either to establish nor to join a union. Therefore, there are two types of labour unions in Turkey. The first organizes mainly blue-collar workers under the jurisdiction of the Labour Act and operates under TUCAA regulations. The second organizes public servants under the jurisdiction of the Public Servants Act and operates under the Public Servants Trade Unions Act regulations (Yıldırım, 2006).

The TUA, the previous act regarding workers’ right to organize, included strict basic requirements for union founders, provisions criticized in Turkey and abroad. The TUCAA took this criticism seriously, deleting most of the provisions relating to the Penal Code and to the Turkish citizenship requirement (Article 6). Trade unions can now set up international trade unions and open representative offices in Turkey (Article 21). The TUCAA also reduces the minimum age for union membership from 16 to 15 (Article 17/1). Besides these amendments, the new Act strengthens the protection of union shop stewards. According to the TUCAA, if the employer terminates the contract of a shop steward without indicating clearly and precisely a just cause for termination, they must either reinstate the shop steward or pay full wages and all other benefits accruing to the steward during their period of office as shop steward (Article 24). Although the TUCAA offers strong protection to shop stewards during their period of office, they lose it on termination, i.e. there are no safeguards for former shop stewards. What is needed here is an extension of the protection period to one to two years after the end of the term of office (Özveri, 2012: 96–100).

Despite all the positive provisions protecting the right to organize, the TUCAA retains the most important restriction on organizing through implicitly prohibiting unions for specific occupations and trades and instead only allowing national industry-based unions. Thus, the TUCAA retains industry unions as the basic organizing model and confederations as the top-level organizations (Article 2). The main aim behind industry-based unions as a compulsory organizing model is supposedly to strengthen trade unionism. However, this justification is not sincere when other limitations on collective bargaining and the right to strike are taken into consideration (see below). Tightening the principle of industry-based unionism, the TUCAA reduces the number of industries from 28 under the old TUA to 20. For instance, the textile, garment and leather industries now constitute a single sector, while the paper industry has been merged with the wood sector and the shipbuilding sector with ports and warehouses. By reducing the number of industries, the legislature aimed to create a clear-cut union structure. If the unions in the now deleted industries do not restructure themselves or merge, they will lose their collective bargaining authorization.

The former compulsory requirement to have an application for union membership signed by a notary public is replaced by an online application system. According to the TUCAA, workers should now apply for union membership / resignation using the online e-government portal (Article 17/5, 19/2). The online application procedure is aimed at preventing fraudulent membership and streamlining the process. However, this new provision could also provoke employers to force workers to resign from their unions without further ado. In other words, the online application procedure facilitates not only membership, but also resignation. Furthermore, employers could exploit such legal loopholes in their union avoidance strategies.⁵ Employers could also manipulate the branch of activity to impede the collective bargaining authorization process. For instance, when the number of union members comes close to the workplace threshold (50%+1), employers can change or manipulate the branch of activity to ensure that there is no collective bargaining authorization. The fact that the e-government system is designed to be under the control of the government also seriously worries trade unions, as this could pave the way for serious complications during the collective bargaining authorization process (Özveri, 2012: 60–63).

Safeguarding union membership is crucial to the right of organizing. As the ILO has stressed repeatedly, legal standards are inadequate if they are not coupled with sufficiently dissuasive penalties to ensure their application. In this respect, the TUCAA has weakened the already inadequate membership safeguards, removing remedies for anti-union discrimination previously available to a significant portion of workers. There are claims that employers dismissed more than 45 000 workers belonging to Türk-İş and DİSK between 2003 and 2008 (Bakır and Akdoğan, 2009: 93). Of 11 173 applications for unfair dismissal, the courts awarded reinstatement in 17 per cent of cases (Türk-İş, 2006: 10).

Although union membership safeguards were weak and inadequate under the TUA, workers dismissed because of union membership were at least entitled to compensation. However, under the new TUCAA (Article 25/5), those without job security are totally devoid of any union membership safeguards. According to the Labour Act, only workers employed under an open-ended (indefinite) employment contract and who have worked at least six months in an establishment with a minimum of 30 workers have job security (Article 18). Consequently, workers who fail to meet these criteria are excluded not only from job security but also from union membership safeguards. In the context of high unemployment rates, weak job security has remained a vital concern for workers, as it makes it easier for employers to threaten dismissal for joining a union. Taking into consideration that small and medium-sized enterprises (SMEs) constitute a major share of the Turkish economy and total employment,⁶ it is possible to say that only a ‘privileged minority’ have a genuine right to join a union. It can therefore be assumed that the union density rate will decrease further in the coming years. Put in a nutshell, the new provisions make it practically impossible to organize workers in SMEs, something that even under the old provisions was already problematic and difficult.

The right to bargain collectively

Although the right to bargain collectively has no long history (only about 50 years) in Turkey, in particular in comparison to EU countries, collective agreements are the main instruments of Turkish collective labour relations, acting as industrial peace treaties between the social partners. Indeed, collective bargaining is the principal activity of unions in Turkey. Though partaking in politics and conducting welfare programmes for their members, such activities are marginal and secondary. Trade unionism is essentially ‘business unionism’, with the business being the negotiation and administration of a collective agreement (Süral, 2003: 37).

In spite of the industry-based structure of unions, collective bargaining in Turkey was decentralized until the adoption of the TUCAA. Whereas the CLASLA allowed only establishment, enterprise and multi-employer (group) agreements, the TUCAA opens the door to industry-level agreements, the so-called framework collective agreements. These are industry-level agreements signed between a trade union and an employers’ association affiliated to one of the confederations⁷ sitting on the Economic and Social Council (ESC)⁸ (Article 2/1(b)). Framework agreements contain only provisions on vocational training, occupational health and safety, social responsibility and employment policies (Article 33/3). Although the new Act opens the door to a multi-layer collective bargaining system, there is no conflict resolution mechanism for framework collective bargaining. Due to this lack of conflict resolution, it could be claimed that framework agreements are little more than toothless tigers. Framework agreements may only be signed between social partners who have already built a successful social partnership. For instance, the MESS (Turkish Employers’ Association of Metal Industries) and the Türk Metal Union have been conducting a joint training and occupational health and safety project since 2000, taking part in the ECBOHS (European Cooperation Bridges for Occupational Health and Safety) Project financed by the European Commission between 1 December 2010 and 30 November 2012.

The TUCAA also discriminates against trade unions not taking part in the ESC by excluding them from concluding framework agreements. Were the new Act to regulate the conflict resolution mechanism for framework agreements and not to discriminate between trade unions, it would be an opportunity to break the wage negotiation focus of the collective bargaining system. In Turkey, trade unions are focused more on labour legislation than on consultation and negotiation. Labour legislation has always been the major avenue for establishing labour standards. In general, the social partners tend to expect more from laws than from negotiation and consultation among themselves. As a result, legislation covers a broad spectrum of issues in Turkey, issues which in other countries are the subject of social dialogue and collective bargaining. For instance, job security, fair treatment, training in occupational health and safety issues, and paid leave are regulated in great detail by law. Therefore, collective bargaining mainly concerns wages (Valk and Süral, 2006: 46) and, consequently, trade union activity in Turkey has been largely one-dimensional (collective bargaining for a collective agreement on the sole issue of wages) (Özdemir et al., 2007: 468). If the framework agreement provision had a complementary conflict resolution mechanism, it could help to build industry-based social dialogue and broaden the content of collective bargaining.

Turkish legislation requires a trade union to be authorized to conduct a collective agreement. As a consequence, the determination of the competent and authorized trade union is rather problematic. Only the industry-based unions have competence for collective bargaining, not the confederations, and competence is a prerequisite for authorization. The CLASLA imposed two major and controversial stipulations concerning authorization: representation of at least 10 per cent of the total number of employees in the industry concerned (the so-called 10 per cent threshold) and representation of more than half of the total number of employees in the workplace concerned. These requirements were probably the most provocative challenges to collective bargaining rights and to ILO Convention No. 98 in Turkey. The TUCAA reduces the industry threshold gradually from 10 per cent to 3 per cent and the enterprise threshold from 50 per cent+1 to 40 per cent, while the establishment threshold remains as it is (Article 41). The reduced threshold seems a positive step for unionism. However, it will be more difficult to meet even these reduced thresholds because of the lowered number of branches of activity (by sector). It can be assumed that this means 10 out of the 50 currently authorized unions will lose their authorization immediately.

The new Act also leads to discrimination between trade unions in the way the industry threshold is introduced. According to the TUCAA, the industry threshold will be 1 per cent until 1 July 2016 and 2 per cent until 1 July 2018 for trade unions affiliated to the confederations taking part in the ESC (Temporary Article 6/1). However, independent trade unions not affiliated to any confederations must reach the 3 per cent industrial threshold by the enforcement date of the Act in order to receive collective bargaining authorization. This provision can be seen as indirect discrimination against independent unions, facilitating the establishment of strong and centralized unions. This legal provision does not however lead to strong unionism but to the violation of collective union freedom. The gradual threshold transition privilege accorded to trade unions affiliated to the ESC member confederations is invoked as a way of eliminating independent and not so strong unions.

The right to strike

The serious limitations and restrictions on the conduct of collective labour disputes, particularly on the right to strike, continue to exist under the new Act. Under the old CLASLA, the mediation process had to be initiated in any collective labour dispute as a first step before taking any strike and/or lock-out action or before resorting to compulsory arbitration (under which strikes and lock-outs were not permissible). The main function of the mediator was to make every effort to help the parties find a solution to their dispute, and, though not mandatory, to offer recommendations (which could then be incorporated into the final report in the event of a failure to reach agreement). However, this mediation system was criticized for its ineffectiveness in settling collective labour disputes, as illustrated by the fact that its success rate has decreased to 15 per cent in recent years. Though accepted as a regular step toward reaching the next stage, mediation is not a viable tool for settling collective labour disputes. Despite all of this criticism of the mediation mechanism, it has been taken over by the TUCAA without change (Article 50).

If the mediation proceedings fail to resolve a dispute, then trade unions have the right to call a strike in Turkey. The CLASLA only allowed and guaranteed the right to strike to collective interest disputes and defensive lock-outs, with political strikes/lock-outs, general strikes/lock-outs, solidarity strikes/lock-outs, sit-ins, go-slows and any other concerted resistance being explicitly forbidden. These restrictions also featured in the 1982 Constitution, but were removed by the September 2010 amendment. Although the TUCAA does not explicitly ban these various forms of strike action, it conversely only allows strikes for collective interest disputes (Article 58/2) and defensive lock-outs (Article 59/2).

Certain activities and areas considered essential and critical to the functioning of the economy and public life (i.e. water, electricity, gas, banking and public notaries, burial services, educational and training institutions, day nurseries and old-age retirement houses) remain excluded from the right to strike and lock-out (Article 62). Nevertheless, the new Act did remove the six-month strike ban in the civil aviation industry in May 2012. The strike ban in civil aviation had been very controversial, having been adopted on the very eve of a strike at Turkish Airlines. The Minister of the Economy declared the intention of the government in issuing the strike ban as follows:

No offense to anyone, strikes will be banned in strategic sectors such as this one! For example, imagine if there is a strike in a bank for three days, it would go bankrupt instantly… The fact that we are stopping strikes is among the elements which made the Turkish Airlines so successful. As a matter of fact, I read in a foreign magazine [that]the Turkish Airlines is better than Lufthansa because there are no strikes. (http://en.internationalism.org/icconline/201207/5059/turkish-airlines-strike-workers-against-bosses-and-union; http://www.hurriyet.com.tr/yazarlar/20782184.asp)

Considering that the strike ban for civil aviation remained in force for only six months, it is possible to claim that it was aimed to break the strike at Turkish Airlines. When the draft act regarding the strike ban of the civil aviation industry was discussed in Parliament, Turkish Airlines workers belonging to the Hava-İş Union went on a go-slow, with the result that the employment contracts of 305 participating cabin workers were terminated. They lodged an appeal against their dismissals with the labour court, and the Hava-İş Union initiated a campaign for their reinstatement. In 26 cases, the court ruled that the dismissals were unjustified and that the workers should be reinstated by 20 December 2012 on pain of Turkish Airlines having to pay at least one year’s wages as compensation to the workers. Proceedings for the other dismissed workers are ongoing (http://www.havais.org.tr/).

According to the new Act, in the event of a strike or lock-out, the city governor is also entitled to take measures necessary to maintain essential services for citizens (Article 74/1). This new provision can be understood as a state-operated strike-breaking mechanism.

One of the most controversial provisions regarding the right to strike, the postponement of legal strikes and lock-outs, remains in the TUCAA (Article 63). A legal strike or lock-out may be postponed for up to 60 days by order of the Council of Ministers for reasons of public health or national security. At the end of the postponement period, if a collective agreement cannot be signed, recourse must be made to compulsory arbitration to settle the dispute. This provision de facto paves the way to transforming ‘postponement’ into ‘prohibition’ (Dereli, 2006: 94–95). The postponement of legal strikes, an accepted legal practice borrowed from the US Taft-Hartley Act, has been a telling feature of Turkish industrial relations, particularly between 2002 and 2005 under the AKP government (Aydın, 2004: 365–421). Moreover, assessments of the degree to which a strike imperils public health or national security are quite subjective in many cases. Similarly, interpretations of the concepts of ‘public health’ and ‘national security’ are subject to misuse in most disputes, despite the parties lodging an appeal with the High Court Administration for the cancellation of the postponement order (Aydın, 2004: 383). The postponement of strikes threatens not only the right to strike but also the right to bargain collectively. Admittedly, the postponement of strikes in Turkey is often used as a way of alleviating pressure put on the government by employers’ organizations, with the government often misusing the legislation to hinder strikes on purely economic grounds (Çelik, 2008: 87). Although serious criticism exists about the postponement of strikes at both national and international levels, the new Act retains this controversial provision.

Looking at recent strike statistics since the AKP government came into power, one can see a steady decline in the number of strikes, though with a small increase in 2004/2005. With this new Act, it can be expected that the number of strikes and their effectiveness will decrease significantly still further.

Table 1.

Strikes 2002–2011.

Years	Number of strikes	Number of workers involved	Number of working days lost
2002	27	4 618	43 885
2003	23	1 535	144 772
2004	30	3 557	93 161
2005	34	3 529	176 824
2006	26	2 061	165 666
2007	15	25 920	1 353 558
2008	15	5 040	145 725
2009	13	3 101	209 913
2010	11	808	37 762
2011	9	557	13 273

Source: Ministry of Labour and Social Security.

(http://www.csgb.gov.tr/csgbPortal/csgb.portal?page=istatistik).

Conclusion

Due to the late commencement of industrialization and development of a working class, as well as democratization, in Turkey, workers there have no tradition of fighting for their rights, with trade unionism based generally on legislation rather than on a class-rooted social movement. The trade union motto of ‘union rights are taken, not given’ applies in reverse in Turkey, with Turkish workers having developed a habit of expecting everything from the state. While labour and union rights were extended and improved in certain periods (i.e. 1961–1980) they were frequently restricted, particularly following the 1980 military coup d’état. The rigid, detailed and restrictive legislation has been mainly used by the state to control the working class and labour rights.

The TUA and CLASLA, in force almost 30 years, were criticized by both trade unions and bureaucrats for decades as the fruit of the military era. Repeatedly criticized in the EU Progress Reports for its failure to implement fundamental ILO Conventions, in particular Conventions No. 87 and 98, Turkey has seen different draft acts on union rights being prepared and discussed at different periods. A number of important restrictions to union rights were removed by the 2010 amendments to the 1982 Constitution, giving hope for improvements in labour and union rights. After long and heated debates, the new Act on collective labour relations, the TUCAA, was adopted in November 2012.

However, the TUCAA has failed to bring any meaningful improvements to union rights. Despite a number of minor changes for the better, it introduces more restrictions on union rights than in the previous acts. The TUCAA also discriminates trade unions and workers, infringing the principle of equality guaranteed in the Constitution. Independent unions not taking part at the ESC are excluded from both the gradual reduction in thresholds for collective bargaining authorization and from concluding framework agreements. Although it is claimed that the Act’s intention is to strengthen unionism, it de facto paves the way for centralized and state-controlled trade unionism. The TUCAA also excludes workers who already lack job security from union membership safeguards, thus further promoting a decrease in union density and limiting union membership to workers in large enterprises. The TUCAA similarly does not remove any restrictions on strikes, instead conferring on the state a strike-breaking right. Put in a nutshell, the TUCAA ushers in a new era in which trade unions will further lose power and become more ineffective.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

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