In a democratic society based on pluralism, tolerance and broadmindedness, workers have freedom of expression, just like everyone. When used collectively, the freedom of expression intertwines with the freedom of association. Once individuals who want to organize and express their thoughts are workers, these freedoms also integrate with trade union freedoms and mutually enrich each other. This is proved by the development of the right to collective action in the decisions of supervisory bodies that interpret international human rights documents.
Today, there is no doubt that the right to collective action, which means the collective exercise of freedom of expression, is a fundamental human right. The workers’ right to collective action is considered a legitimate means of defending their economic and social interests. Besides, the occupational and economic interests which workers defend through the right to collective action do not only concern better working conditions or collective claims of an occupational nature but also the seeking of solutions to economic and social policy questions and problems facing the workplace, which are of direct concern to the workers. While purely political strikes do not fall within the scope of the principles of freedom of association, the workers and trade unions should also be able to protest and criticize a government’s economic and social policies. In the first part of our study, we emphasized this issue.
The use of this right by the worker has undoubtedly caused some disputes to arise in practice. In Turkish Labour Law, the right to strike is prescribed restrictively by the Law and subjected to a very strict procedure. A worker’s attendance to an unlawful strike, results in termination of the labour contract due to just cause. However, article 90 of the Constitution, which stipulates that in the case of a conflict between international agreements and the laws concerning fundamental rights and freedoms, the provisions of international agreements shall prevail, became an essential tool for the judges to not to decide on the right to collective action within in the boundaries of the national law.
The judge, who undertakes the challenging task of resolving these disputes, recognizes workers’ right to collective action and considers the legitimacy of the purpose pursued by resorting to action, the peaceful nature, and the proportionality of the action in their decisions. In the second part of our study, we examined the approach of the Court of Cassation and the Constitutional Court’s decisions to the mentioned criteria. Within the scope of these disputes, the answer to the question of whether “exercising the right to collective action can be a reason for termination?” has been sought.
There are two conflicting interests in the termination of the employment contract of the worker who exercises the right to collective action: The worker’s right to collective action and the employer’s freedom of enterprise. If the right of collective action, which is an extension of freedom of expression, conflicts with other fundamental rights, it is inevitable that it will be subject to limitations. However, since the conditions and level of the legal protection of the right to collective action are not framed by legal regulations, the judge must decide by referring to the basic principles. For this reason, the principle of proportionality, which provides a fair balance between conflicting fundamental rights, will be the key to resolving the dispute. As a matter of fact, the Court of Cassation uses this principle and points out in its decisions whether the action violates the principle of proportionality or not.
However, it draws attention that in the decisions of the Court of Cassation, two points are especially subject to criticism: First, it is unclear on what grounds the proportionality of the action is based. It is not possible to clearly see the justification process of proportionality control followed by the judge. In the decisions, the duration, the timing of the action and the number of participants are the only criteria used. The second point where the decisions are criticized is that they do not clearly state on what grounds the termination is based on just cause or valid reason.
A fair resolution of disputes is directly dependent on the justification method followed by the judge. Since it is necessary to establish a steady approach regarding resolving conflicts about the collective action and thus ensure legal security and predictability, the judge’s review method may respond to this need by making a bilateral proportionality control.
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