Extended Summary

Collective bargaining right was accepted as an integral part of the right to unionize and was supported by the right to strike. The first regulation regarding the right to free collective bargaining in our legislation was made with the 1961 Constitution and the Law No. 275.

With the military coups of 1960 and 1980 and following administrations has secured the right to collective bargaining and right to strike with 1961 and 1982 constitutions respectively. Albeit limited, the right for voluntary and free collective bargaining and the autonomy of collective bargaining are regulated first in the constitution and then in the laws. Although with some interruptions over the years, the right to collective bargaining, including the right to strike, has been implemented since 1963.

When the practices and activities of Unions in Turkey are considered, the subject of collective bargaining, which is considered amongst the most important activities of unions, comes to upmost attention. With the Law No. 6356, the collective bargaining capacity and authority were given to the unions organized at the sectoral level. There is no regulation was made for the confederations in this regard. Collective bargaining authority has been given to unions that can pass the threshold for sectoral, business or workplace aspects. Officially, these unions are authorized in terms of license. For this reason, it is necessary to understand that the right to strike is regulated and implemented within this framework.

When the legislation on collective bargaining at the central level is examined, unions that are members of the confederations are given the right to construct a Framework Agreement with the Law of No.6356, limited with vocational educations, workplace health and safety, social responsibilities and employment policies. The Framework Contract in the law is limited in terms of subject. A “Framework Agreement” is not a collective bargaining agreement. Nor is it “normative” in a way that directly and imperatively affects employment contracts or collective bargaining agreements. Therefore, it would not be wrong to say that an application other than workplace, enterprise collective labour agreement and group collective labour agreements is not included in the legislation.

A “Coordination Board” was established in order to eliminate the differences in the public sector collective bargaining agreements and to provide parallelism between the CBAs. Türk-İş has formed a counter-board to negotiate stronger in public collective bargaining agreements and to fight together by ensuring cooperation between unions. In 1989, the “Public Sector Framework Agreement Protocol” was signed with the signature of the boards in the public collective bargaining agreement negotiations. These protocols, which do not have legal sanction, were voluntarily renewed in each contract period from 1989 to 2015. With the regulation made within the scope of the State of Emergency implemented in 2015, the adoption of the Framework Agreement Protocol on Public Collective Bargaining Agreements as a collective agreement pursuant to Article 136 of the Decree-Law dated 20/11/2017 and numbered 696 changed the existing practice and made the protocol binding for trade unions. The regulation, which entered into account on 02/01/2018, was enacted as it was accepted with Article 124 of the Law No. 7079 dated 01/02/2018. However, this regulation has caused controversy in terms of legal, constitutional and international legislation in our collective bargaining system.

Confederations have been given the authority to sign the “Public Collective Bargaining Framework Agreement Protocol”, which arose from the need to make joint arrangements for workers working in different workplaces due to the transfer of contracted workers working in the public sector as a “permanent staff”. This situation not only disrupted the existing collective bargaining system, but also limited the power of unions to sign collective agreements.

Making the collective bargaining agreement of public employees at the central level is a positive development in terms of bargaining power. However, the fact that this right was given to non-authorized confederations caused both legal and factual problems. This situation which accept the protocol signed by the confederations as a collective agreement, has created a legally controversial position without giving the license and authority to the unions, without making arrangements regarding the roles of the confederations in collective bargaining or without giving the confederations the right to take a strike decision.

Accepting the protocol signed without the approval of the authorized unions as a “collective bargaining agreement” has rendered the unions’ authority “nonfunctional”. The Public Collective Bargaining Agreement Framework Agreement Protocol not only disrupted the existing collective bargaining system, but also limited the power of unions to sign collective agreements. This situation led to the start of the strike-free collective bargaining process.

Without considering the indivisibility and integrity of trade union rights, to accept the protocol signed by the confederations, which do not have the legal capacity and authority required by law, cannot be a party in the resolution of collective labor disputes and do not have the power to take strike decisions, as a collective labour agreement is to ignore the voluntary and independent nature of the collective bargaining system.

Confederations should act together with the relevant unions in order to solve the problems that may arise until the regulation regarding the Public Collective Bargaining Agreement Framework Agreement Protocol is amended in the Law No. 6356. For confederations, it is necessary to follow the collective bargaining agreement procedure in the law, to carry out the dispute process together with the unions, and to plan the negotiations without delaying the deadlines for taking a strike decision. Otherwise, confederations whose negotiation procedures have not been determined, dispute processes cannot be foreseen and which do not have the right to take a strike decision will be authorized to sign collective agreements. This will weaken the power of workers who are parties to the collective agreement. It will cause problems and conflicts between the confederations and the union, and will negatively affect the process of unions responding to the expectations of their members.