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EVALUATION OF DISK ON THE LAW 6356 REGARDING ILO CONVENTIONS AND NORMS

I)                   RIGHT TO ORGANIZE

I-A) Limitation on Establishment of Different Types of UNION (article-2):

Maintaining the provisions of the Law 2821 (article-2), the Law 6356 (article-2) defines “trade UNIONs” on the basis of branch of activity and does not recognize other types of organizations as UNIONs; hence the Law does not allow workers to establish or organize in occupational UNIONs or workplace UNIONs.

I-B) Limitation on Establishment of Higher Organizations (article 2):

Maintaining the provisions of the Law 2821 (article 2), the Law 6356 (article-2) defines higher organizations as “confederations” and does not recognize other types of organizations as “higher organizations”, hence the Law 6356 does not allow UNIONs to establish “federations” and other types of higher organizations.

I-C) Reduction of Number of Members of UNION Branch Executive Board (article 9):

The Law 6356 reduced the number of the executive board members of the trade UNION branches from 9 to 5, restricted the rights of the previously elected executive board member and restricted workers’ right to freely elect their representatives.

I-D) Auditing of UNIONs (article 11, 12, 29)

The Law 6356 introduced a new external auditing mechanism on UNIONs. It stipulated that UNIONs shall be regularly audited by certified financial accountants who are furnished with a specific kind of public authority.

I-E) Protection of Right to Organize (article 25):.

Since the Law 6356 terminated workers who are not in the coverage of job security of the Labour Law right to be protected from termination of contract on account of UNION membership or participation in UNION activities. In other words 60 percent of all workers lost their right to lodge an appeal for UNION compensation in the case of dismissal.

II)                RIGHT TO BARGAIN COLLECTIVELY

II-A) Limitation of Organizations Competent to Engage in Collective Bargaining (article 2, 41).

Maintaining the provisions of the Law 2822 (article 2,12), the Law 6356 regulates that (article 2, 41) only trade UNIONs established on the basis of branch of activity may engage in collective bargaining. Therefore the Law 6356 does not allow federations, confederations and UNIONs established on the basis of workplace or occupation to engage in collective bargaining.

II-B) Branch of Activity Threshold and Workplace/Enterprise Threshold (article 41, provisional article 6)

The Law stipulated that to be competent to engage in collective bargaining and to conclude collective agreements, UNIONs shall meet double numerical criteria: branch of activity threshold and workplace/enterprise threshold. Branch of activity will be 1 percent in between 2013-2016 July, 2 percent in between 2016 July-2018 July and 3 percent afterwards. Workplace threshold will be 50 percent and enterprise threshold will be 40 percent permanently. Since many UNIONs has remained will be remaining under the threshold, the number of UNIONs competent to conclude collective agreements and inevitably workers covered by a collective agreement will be decreasing.

– As a result of application of 1 percent of branch of activity threshold in 2013, number of UNIONs competent to engage in collective bargaining decreased to 43 from 51.

– As a result of application of 2 percent of branch of activity threshold in 2016, at least another 13 UNIONs may remain under the threshold and lose their competence to engage in collective bargaining.

– As a result of application of 3 percent of branch of activity threshold in 2018, at least another 7 UNIONs may remain under the threshold and lose their competence to engage in collective bargaining.

– In conclusion, after application of 3 percent of branch of activity threshold permanently after 2018 July, the number of UNIONs competent to engage in collective bargaining may decrease to 23 which was 51 according to the previous law and 10 percent of branch of activity.

– In 6 branches of activity (Press and Journalism; Commerce, Office, Education and Fine Arts; Construction; Transportation; Health and Social Services; Hosting and Entertainment); there may be no UNIONs competent to engage in collective bargaining. 5.107.348 workers are employed in these branches of activity that constitute 46,1 % of all workers. In other words, approximately half of the workers may be deprived of right to bargain collectively since there may not be any competent UNIONs in their respective branches of activity.

 

 

In 8 branches of activity (Petroleum, Chemistry, Tyre, Plastic and Medicine; Textile, Garment and Leather; Wood and Paper; Metal; Energy; Ship Building, Maritime Maritime Transportation, Warehouse and Storage; Defense and Security) there may only one competent UNION. 3.690.427 workers are employed in these branches of activity that constitute 33,9 % of all workers. In other words, as a result of UNION monopoly in 8 branches of activity, approximately one-third of all workers may be deprived of right to freely choose the UNION.

– In conclusion only 20 % of workers may be able to choose one of the UNIONs in respective branches of activity which will represent them in collective negotiations.

II-C) Objection to Competency of a UNION (article 43)

However, the Law 6356 (article 43) maintained the provision of the Law 2822 (article 13) regarding objection to competency of a UNION that delay competency procedure (with the exception that objections based on branch of activity shall not be regarded as reasons to delay competency procedure) and hence kept providing employers with the most effective method to impede workers’ right to bargain collectively.

II-D) Level of Collective Bargaining (article 2, 33)

Although the Law 6356 introduced collective bargaining at industry level to the legislation by the means of “framework agreements” (article 2,33), which was not existent in the Law 2822; it, indeed, reformulates denial of collective bargaining at industry level since it a) stipulates, the requirement of representation in the ESC regarding the parties of the agreement, b) restricts the scope of application of the agreement with the members of the employee’s and employer’s UNIONs, c) restrics matters to be covered by framework agreement with occupational training, work health and security, social responsibility and employment policies.

II-E) Compulsory Mediation (article 22)

As the Law 2822 (article 22) did, the Law 6356 (article 50) regulated the mechanism of mediation as a compulsory stage of the collective negotiation process, if the parties do not achieve an agreement in negotiation process.

III) RIGHT TO STRIKE

III-A) Prohibition on Different Types of Strike (article 58):

The Law 2822 (article 25) and the Law 6356 (article 58) defined the “lawful strike” as Lawful strike means any strike called by workers in accordance with this law with the object of safeguarding or improving their economic and social position and working conditions, in the event of a dispute during negotiations to conclude a collective labour agreement and defined “unlawful strike” as “any strike called without fulfilling the conditions for a lawful strike”. Although the Law 6356 did not list the types of unlawful strike, it also considers all of the different types of strike as unlawful strike, since the definition of unlawful strike encompasses them all.

III-B) Prohibition of Strike in Some Sectors (article 62):

In comparison to the Law 2822, the Law 6356 narrowed the scope of sectors in which strike is prohibited; however Law 6356 maintained prohibition of strike in many areas such as banking, petro-chemical works, urban public transportation etc. in which prohibition of strike is not compatible with ILO norms.

III-C) Postponement of Strike (article 63): 

Preserving the provision of the Law 2822 (article 33) on postponement of strike, the Law 6356 (article 63), severely restricts right to strike by authorizing Council of Minister to suspend a strike for 60 days if it is prejudicial to public health or national security. Since if an agreement is not achieved within 60 days, it is not possible to re-call the strike and hence it is obligatory to recourse to High Court of Arbitration; such a postponement/suspension of strike practically means permanent stoppage of the strike and removal of right to strike.

III-D) Abuse of Right to Strike (article 72):

Preserving the provision of the Law 2822 (article 47) on abuse of right to strike, the Law 6356 (article 72), severely restricts right to strike by authorizing competent courts to suspend a strike if it is “exercised contrary to the rules of good faith or in such a manner as to be harmful for society or destructive to national wealth”.

III-E) Strike Vote (Ballot) (article 61):

The Law 6356 regulated that if the majority of the workers participating in the ballot votes against the strike, irrespective of whether total number of “no” votes exceed total number of workers or not, a strike shall not be called. By taking only the workers who participate in the ballot into consideration, the Law 6356, indeed, assists employers in their unlawful efforts to prevent a strike before it is called.

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