Extended Summary

In the Turkish legal system, the recognition of the right to collective bargaining and collective agreements occurred significantly later than in European countries. Moreover, because trade union freedom was initially prohibited and subsequently subjected to legal restrictions, neither a robust trade union movement nor an effective practice of collective bargaining was able to develop. As the Constitutional Court has also determined, the inability to exercise the right to collective agreements effectively stems directly from the legal framework itself; the Court has classified this as a structural problem arising from the legislation.

The capacity to conclude collective agreements is vested in workers’ trade unions; however, for an authorized union to conclude such an agreement with an employer, it must also fulfil the statutory authorization requirements. Under Article 41 of the current Law No. 6356 on Trade Unions and Collective Agreements, these requirements are regulated through a mechanism commonly referred to as a “double threshold.” This system obliges a trade union to possess a certain proportion of members both within the relevant sector (branch of activity) and within the workplace(s) concerned.

The sectoral threshold renders the determination of the relevant sector — as well as the classification of the workplace(s) where the agreement is to be concluded — a matter of vital importance. However, disregarding the protective purpose of the norm, concepts such as “workplace” and “enterprise” have been interpreted in rigid and overly formalistic ways, detached from their functional meaning. This has led to uncertainties in the authorization process. Furthermore, with the stated aim of fostering stronger unions, the number of sectors has been reduced to twenty; the inclusion of disparate industries within the same sector has caused the total number of workers in some sectors to reach extremely high levels, thereby making it more difficult for unions to surpass the 1% threshold. This inevitably results in situations where even a union that is strong in its own field cannot obtain authorization to conclude a collective agreement because it fails to meet the sectoral threshold.

An examination of the legal framework and its practical consequences reveals that the current collective bargaining and collective agreement system allocates a very narrow scope for party autonomy while granting an overly broad role to state tutelage. It thus emerges and attempts to develop under the oversight and supervision of the state, which clearly obstructs the ability of the right to collective agreements to reach its actual beneficiaries.

In its Nakliyat-İş judgment, the Constitutional Court went beyond merely identifying practical difficulties, determining that their root cause lies in structural problems arising from the legislation, and delivered a principled ruling. The Court focused in particular on Article 35 of the Law, which provides that an application for authorization to conclude a new collective agreement may be submitted at the earliest 120 days before the expiry of the current agreement. Taking into account procedural deadlines and objection periods, the Court examined whether it is realistically possible to conclude a collective agreement within 120 days — that is, whether, even apart from practical obstacles, the legislative framework itself permits a union to conclude such an agreement within that time frame — by reference to sector statistics and objection periods. It found that even in the absence of procedural delays or objections to sectoral statistics being treated as a preliminary issue, the objection process alone requires at least nine months for a final decision, rendering the conclusion of a new agreement within 120 days impossible. The Court thus established that, even disregarding practical difficulties, there is no legislative framework capable of ensuring the effective exercise of the right to collective agreements guaranteed under Article 53 of the Constitution.

In light of these findings, it is evident that a new model must be adopted to advance the system of collective bargaining and collective agreements in a manner that reflects contemporary values and aligns with the principle of autonomy, rather than leaving key matters to state oversight and control. Introducing alternative criteria for determining representational capacity at the workplace or enterprise level and entrusting this determination to independent bodies rather than public authorities, would be essential to accelerating the authorization process and enabling the effective exercise of the right to collective bargaining. It must also be emphasized that the success of competency systems in jurisdictions with advanced collective bargaining regimes is not attributable solely to the competency criteria themselves, but rather to the operation of the entire collective bargaining framework as an integrated whole.