Legal Victory in Izmir for UPS Workers
November 4, 2010 marked the first victory in UPS workers’ legal fight with UPS. The Izmir 8th Labour Court reinstated a UPS worker who was fired for having joined the TUMTIS UNION at Izmir Transfer Center. TUMTIS (Turkish Road Transport UNION) has prosecuted 136 cases the reinstatement for the fired UPS workers. In the last six months, 162 fired workers at UPS in Istanbul, Izmir and Ankara have been continuing a patient, dedicated and strong resistance at picket lines for reinstatement after unjust firings.
An inspector of the Minister of Labour and Social Security also issued a more detailed investigation report which gives solid support to TUMTIS’ efforts to achieve justice for the workers who have been victimised in reprisal for their exercise of their right to freedom of association. In September 2010, TUMTIS General President Kenan Öztürk met with the Minister of Labour, Ömer Dinçer, in Ankara. As a result, a Labour Inspector was assigned to investigate the case regarding TUMTIS’ complaint about wrongful dismissals.
The report by the Labour Inspector serves as very important evidence to be used in court cases to support TUMTIS’ position, although its findings are not legally binding. After a detailed investigation of the UPS workplace in Izmir, the report presents crucial findings that reinforce TUMTIS’ allegations that workers were victimised for exercising their right to join a UNION in the dispute with the UPS. Interviews were conducted with workers and managers of UNSPED (UPS subsidiary in Turkey), ER-KA and ILBE (subcontractor companies for UPS) and EFT Cargo (commercial agent of the UPS).
UPS IS LIABLE FOR SUBCONTRACTED WORKERS
The report invalidates UPS’ denial of responsibility for the subcontracted workers. Turkish Labour Law makes the principal employer jointly liable with the subcontractor for the subcontractors’ workers, with respect to obligations related to the workplace arising out of the Law, and from the employment contract. The report refers to the Labour Law in order to demonstrate this liability.
UPS AND ITS SUBCONTRACTORS ARE INVOLVED IN LAW COLLUSION
In defending the rights of both direct employees and subcontracted workers, TUMTIS has argued that according to Article 2 of the Labour Law, a principal employer can legally subcontract work only in areas, which require technological expertise or are secondary to essential work. However, at UPS transfer centers the work performed by subcontracted workers does not fit these two criteria. Subcontracted workers and UPS direct employees work side by side and fulfil primary tasks of the transfer centers.
The Labour Inspector’s report refers to the same Article of the Law and makes similar observations. It argues that the tasks do not require technological expertise and direct employees and subcontracted workers perform the same tasks in the same space, under the same roof. Since the work relationship between the principal employer and the subcontractor is not compatible with the law, there is law collusion, for which an employer faces monetary sanctions. Most significantly, the report claims that subcontracted workers should be legally treated as UPS direct employees since subcontractor companies are only providing workforce for the principal employer.
UPS WORKERS ARE FIRED FOR SYNDICAL REASONS AND ENTITLED TO SEVERANCE PAYMENTS
The Labour Inspector report also clearly states, for the cases investigated, that workers were fired because they joined the UNION. According to the report the employer is unable to provide adequate proof of reason to terminate the job contracts. The findings also state the employer violated the Article 31 of the Labour Law, which prohibits discrimination against or firing of workers who exercise their right to join a UNION. For different cases it investigated, the report says that workers should be made severance payments and payment in lieu of notice.
JUSTICE DELAYED IS JUSTICE DENIED
TUMTIS, the Turkish road welcomes the court decision and the report of the investigation. Its conclusions align with several other court decisions and Higher Court of Appeals’ decisions regarding wrongful dismissals and subcontracted workers.
Although welcomed, this victory comes too late. UPS workers are in their sixth month of demanding justice from UPS and the Turkish Government, and there are a remainder of 135 court cases still waiting to be heard for reinstatement of UPS workers. In addition, there are 157 petitions at Regional Directorates of the Ministry of Labour and Social Security. Decisions have been issued on less than a dozen. Justice delayed is justice denied.
MOLLY MCGRATH, DEMET DİNLER
http://www.emekdunyasi.net/en/labour/9888-legal-victory-in-izmir-for-ups-workers
