The Rıght to Strıke in Turkısh Law

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1 Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 4th Edition Right to strike v. right to economic activity: striking the balance in a globalized socio-liberal Europe? Turkey The Rıght to Strıke in Turkısh Law Prepared by: Ali Rıza Çoban 1

2 The Rıght to Strıke in Turkısh Law Ali Rıza ÇOBAN 1. THE LAW a- The Constitution Right to Strike and Lockout Article 54: (1) Workers have the right to strike if a dispute arises during the collective bargaining process. The procedures and conditions governing the exercise of this right and the employer's recourse to a lockout, the scope of both actions, and the exceptions to which they are subject shall be regulated by law. (2) The right to strike and lockout shall not be exercised in a manner contrary to the principle of goodwill to the detriment of society, and in a manner damaging national wealth. (3) During a strike, the labour union is liable for any material damage caused in a work-place where the strike is being held, as a result of deliberately negligent behaviour by the workers and the labour union. (4) The circumstances and places in which strikes and lockouts may be prohibited or postponed shall be regulated by law. (5) In cases where a strike or a lockout is prohibited or postponed, the dispute shall be settled by the Supreme Arbitration Board at the end of the period of postponement. The disputing parties may apply to the Supreme Arbitration Board by Rapporteur at the Constitutional Court of Turkey. 2

3 mutual agreement at any stage of the dispute. The decisions of the Supreme Arbitration Board shall be final and have the force of a collective bargaining agreement. (6) The organisation and functions of the Supreme Arbitration Board shall be regulated by law. (7) Politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, labour go- slows, and other forms of obstruction are prohibited. (8) Those who refuse to go on strike, shall in no way be barred from working at their work-place by strikers. Freedom to Work and Conclude Contracts Article 48. Everyone has the freedom to work and conclude contracts in the field of his choice, the establishment of private enterprises is free. The State shall take measures to ensure that private enterprises operate in accordance with national economic requirements and social objectives and in conditions of security and stability. 2822) b- The Law on Collective Labour Agreement, Strike and Lockout (Law No: Definition of strike Article 25. The expression "strike" means any concerted cessation by workers of their work with the object of halting the activities of a given establishment or of paralysing such activities to a considerable extent, or any abandonment by workers of their work in accordance with a decision taken to that effect by an organisation. The expression "lawful strike" means any strike called by workers in accordance with this Act with the object of safeguarding or improving their economic and social 3

4 position and working conditions in the event of a dispute during negotiations to conclude a collective labour agreement. The expression "unlawful strike" means any strike called without fulfilling the conditions for a lawful strike. A strike called for political purposes, or a general strike or any solidarity strike shall be unlawful. The penal provisions concerning unlawful strike shall apply to occupation of the establishment, slowdown, deliberate reduction of output and any other resistance action. No strike shall be called for any purpose contrary to the indivisible integrity of the State with its territory and the nation, national sovereignty, the Republic and national security. Activities where strikes and lock-outs are prohibited Article 29. It shall not be lawful to call a strike or order a lock-out in the following activities: 1. Life or property saving; 2. Funeral and mortuary; 3. Production of coal for water, electricity, gas and coal power plants; exploration, production, refining and distribution of natural gas and petroleum; petrochemical works, production of which starts from naphtha or natural gas; 4. Banking and public notaries; 5. Fire fighting, land, sea, railway urban public transportation and other public transportation on rail. Establishments where strikes and lock-outs are prohibited Article 30. It shall be unlawful to call a strike or order a lock-out in the following establishments and undertakings: 4

5 1. Any health institution, such as a hospital, clinic, sanatorium, health centre, dispensary, chemist's shop or pharmacy, or establishment for the preparation of vaccine or serum: Provided that the foregoing shall not be deemed to include any establishment manufacturing medicines; 2. Educational and training institutions or day nursery and old-age retirement homes; 3. Cemeteries; 4. Any establishment run directly by the Ministry of National Defence, General Command of Gendarmeries or Coast Guard Command. Temporary prohibitions Article 31. It shall not be permissible to call a strike or order a lock-out in time of war or during a general or partial mobilisation. Where the life of the community is paralysed by a disaster caused by fire, flood, landslide, avalanche or earthquake, the Council of Ministers may make an order prohibiting strikes and lock-outs in respect of such areas and branches of employment as it may deem necessary, in view of the situation and for such time as the situation obtains. The lifting of the prohibition shall be subject to the same provisions. It shall not be permissible to call a strike or order a lock-out in any means of land, sea or air transport while the vehicle is engaged in a journey within Turkish territory before reaching its final destination. Suspension of strikes and lock-outs Article 33. Any lawful strike or lock-out that has been called, ordered or commenced may be suspended by order of the Council of Ministers for 60 days if it is likely to be prejudicial to public health or national security. The suspension shall come into effect on the date of publication of the order. 5

6 It shall be permissible to lodge an appeal with the Council of State for the cancellation of the order of the Council of Ministers and to request the suspension of the proceedings. In areas where a state of emergency has been proclaimed, no decision to suspend the proceedings in any appeal for the cancellation of the order shall be taken. c- International Law Turkey is a party to the European Social Charter (Revised Version), but she has not accepted Article 6 of the Charter, which regulates the right to strike. Turkey declared in the instrument of ratification deposited on 27 June 2007 that it considers itself bound by the following articles, paragraphs and sub-paragraphs of Part II of the revised Charter: Article 1; Article 2, paragraphs 1, 2, 4, 5, 6 and 7; Article 3; Article 4, paragraphs 2, 3, 4 and 5; Articles 7 to 31. Turkey is also a party to the International Covenant on Social, Economic and Cultural Rights Article 8 of which stipulates that : 1. The States Parties to the present Covenant undertake to ensure: (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. Nevertheless, this provision makes reference to domestic law in terms of the content of the right to strike. 2. CONTENT AND LIMITS OF THE RIGHT TO STRIKE IN TURKEY The Turkish Constitution and Law recognise a very limited right to strike. The employees right of strike is regulated together with the employers right of lock-out. The Constitution and the law balanced the mutual rights of employees and employers during the collective bargaining process. 6

7 The scope of the right to strike is very limited. Only workers have the right to strike. Civil servants cannot go to strike. Workers can go to strike for only to protect their interests in the event of a dispute during the collective bargaining process. This is called in Turkish law as the strike of interest (menfeat grevi). The constitution and the law prohibit political and solidarity strikes as well as a strike aiming to get rights already incurred, which is called the strike of right (hak grevi). All these strikes have been described as unlawful strike in the law and employees who organise or participate in such a strike may result in losing their jobs and they may even be subjected to criminal investigations and some criminal sanctions. The law describes lawful strike very narrowly and subjects it very strict conditions. According to the law, only a labour union may call a strike if it has competence to collective agreement in a work place. In order to call for a strike the labour union should follow certain procedures. The negotiations for collective labour agreement should commence in accordance with the law, during the negotiation a dispute should arise between the parties about the working conditions, wages or other social rights of the workers. The labour union after notifying the competent authority about the dispute and upon the failure of mediation may call for a strike in a workplace or in an establishment. Any failure in this procedure may cause the strike being unlawful. Law prohibited strike in some activities and in some establishments and undertakings. Calling for a strike in such activities and undertakings is illegal and such a strike will be considered as unlawful strike. Furthermore, the government may postpone a strike for 60 days if it deems it prejudicial to public health or national security. Considering these points, it can be said that the Turkish Constitution aims to balance the right to strike of workers with the corresponding right of employers to lockout. Nevertheless, content of the right to strike is so limited that it can barely be utilised by workers. In reality, the activities of labour unions in Turkish private sector are very limited and most of the employees working in private sector are unorganised. 7

8 Labour unions are mostly active in public sector. Therefore, it is quite difficult to mention a real balance between the right to strike and the right to economic activity. But this does not mean that people have unlimited right to economic activities, in spite of the important developments in recent years, there are still some limitations and obstacles before the entrepreneurs in Turkey. To sum up, it can be said that the right to strike is very limited. Only workers have a right to strike during collective agreement bargains. Civil servants do not have the right to strike. The forms of solidarity strike, warning strike, sympathy strike, general strike are prohibited. The right to strike in many sectors and occupations is prohibited by law. Furthermore, the law empowers the government to postpone a strike if it deems necessary. It seems, under these conditions, it can hardly be mentioned a constitutional right to strike in Turkey. In such a restricted constitutional area, the Turkish Constitutional Court has interpreted the right to strike within the boundaries of the Constitution very narrowly. For example, the Constitutional Court did not find a law prohibiting strike and lockout in free zones for ten years contrary to the Constitution and ruled that Constitution allows prohibition of strike in some activities and some industries (Decision date: Registry No: E:1985/21, Decision No: K:1986/23). But in last year the Court delivered a decision slightly relaxing the prohibition of political strike. 3. AN EXAMPLE DECISION OF THE CONSTITUTIONAL COURT Concrete Review of the Law No: Article 73 (The Law on Collective Labour Agreement, Strike and Lockout) 8

9 The Turkish Constitutional Court, Date of the Decision: ; Registry No: E.2002/71, Decision No: K.2008/44; Published in Resmi Gazete (Official Gazette), , Summary of the Decision: Bandırma Criminal Court asked the Constitutional Court to assess the compliance of Article 73 of the Law No: 2822 (The Law on Collective Bargaining, Strike and Lockout) with the Constitution. Article 73 of the Law No: 2822 prohibits strikes aiming to prevent making a decision, or prevent changing or revoking a decision or to protest a decision of legislative, executive or judicial organs or central or local authorities. And the third paragraph of Article brings criminal sanctions to those who participate in such unlawful strikes. Article 54 of the Constitution regulates the right to strike and lockout. It stipulates that Workers have the right to strike if a dispute arises during the collective bargaining process. The Constitution prohibits politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, labour go-slows and other forms of obstruction in seventh paragraph of Article 54. The Constitutional Court ruled that the Constitution recognise the right to strike of workers during the collective bargaining in order to protect their interests and to provide better conditions in collective agreement. A legislative act may aggravate their rights in the collective agreement and they have the right to defend their rights against such legislative acts. Subjecting workers participating in a strike to protest a law on social security, to the criminal sanctions without considering different possible motives violates the right to strike and is contrary to the Constitution. As a result the Court decided unanimously that third paragraph of Article 73 of the Law on Collective Bargaining, Strike and Lockout is contrary to Articles 2, 5 and 54 of the Constitution and annulled the mentioned provision. Five members of the Court namely, President Mr. Kılıç, Judge Mr. Erten, Judge Mr. Özler, Judge Mr. Özgüldür and Judge Mr. Apalak agreed with this result for different reasons and put forward concurring opinions. 9

10 Article 73 of the Law No: 2822 (Unlawful strikes and lock-outs intended to influence decisions: Article 73. Any person taking a decision to call an unlawful strike or order an unlawful lock-out with the object of securing a particular decision, or the alteration or reversal of a particular decision, by the legislative, executive or judiciary organs or by the central or a local authority, or inciting or obliging others to take such a decision or engaging in propaganda to that end shall be liable to a term of imprisonment of not less than three months and not more than nine months and to a major fine of not less than TL 75,000 and not more than TL 150,000. Where the decision to call a strike or order a lock-out referred to in the previous paragraph is subsequently put into effect, any person taking the decision to call such a strike or order such a lock-out, or inciting and obliging others to take such a decision, or to put it into effect, or to take part in it or sustain it or engaging in propaganda to that end and any person taking part in such a lock-out shall be liable to a term of imprisonment of not less than one year and to a major fine of not less than TL 150,000 and not more than TL 300,000. Any person taking part in an unlawful strike as provided in this section shall be liable to a term of imprisonment of not less than six months and to a major fine of not less than TL 10,000) (The provision annulled by the Constitutional Court). 10

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