EXTENDED SUMMARY

When examining the freedom to accept members to a union, first of all, what should be understood from union freedom and the limits of this freedom should be examined. Union freedom has individual and collective aspects. Individual union freedom refers to the right to establish a union, to become a member or not to become a member, and the right to leave a union and not to be forced to leave. Article 51 of the Constitution addresses individual union freedom as “employees and employers have the right to establish unions and higher organizations without prior permission, to freely become members of them and to freely withdraw from membership. No one can be forced to become a member of a union or to withdraw from membership.” It is clear that the union freedom in question in the Constitution is essentially regulated for individuals. Article 17, paragraph 3 of the Trade Unions and Collective Labor Agreement Law No. 6356 also includes the provision, in accordance with the Constitution, that “It is free to become a member of a union. No one can be forced to become or not to become a member of a union.”

Collective union freedom, which is not regulated in the Constitution and Law No. 6356, refers to the freedom of labor and employer unions to protect their own existence and secure their activities due to their separate legal personality from the members that form them. As in the German doctrine, union freedom does not only include the protection and development of common professional, social and economic rights and interests of employees. At the same time, union freedom is accepted as a “double fundamental right” that also expresses the right of the union, which is an independent legal subject, to protect its own existence and engage in its own activities. For this reason, individual union freedom only gains meaning together with collective union freedom.

The freedom of union admission to membership, which is the subject of our study, is a matter that should be examined by evaluating individual union freedom and collective union freedom together. The fact that the union is not obliged to accept every applicant is a natural consequence of its preservation of its own existence. If there are important and justified reasons preventing membership, the union has the right not to accept the employee or employer as a member. A contrary idea may contradict the purpose of collective union freedom. In addition, the rejection of an individual’s application for union membership, even if it is formally in accordance with the provisions of the statute, in a way that would be contrary to justice and discrimination, constitutes the limit of the principle of freedom of admission to membership.

In our study, firstly, the concepts of trade union freedom and trade union right will be included and the place and importance of the trade union right within the rights classification will be emphasized. Then, trade union freedom will be examined within the scope of individual and collective trade union freedom and it will be mentioned how the “freedom of union admission” should be evaluated in the event of a conflict between individual trade union freedom and collective trade union freedom. Then, the point that the freedom of union admission to membership has reached legally together with the regulations regarding associations will be mentioned. Whether the reasons given by the authorized body as the reason for refusal of union membership are justified will be discussed in the last section. In the discussion to be made in the justified reasons section, especially the Abdullah Şahin et al. decision dated 28.03.2024, which is a current decision of the Constitutional Court, will be mentioned.