In the pretext of the draft law the following expressions take place: “… it became inevitable to consider the laws which regulate the collective labour relations with a liberal approach.”
“At the point arrived, it is not possible to take the Turkish trade unionism and thus the order of collective agreement forward with the laws numbered 2821 and 2822…”
“… this Law is regulating the trade union rights and freedoms and the collective agreement and the right to free collective bargaining, by taking the reaction which for a long time the Turkish labour life shows against the universal laws into consideration, and over the fundamentals of a liberal and a democratic society.”
“… Because of the current regulations, our country especially after 1980 was subjected to a treatment which she did not deserve at the international arena under the effect of the ILO’s control mechanism.”
The general pretext clearly confesses what kind of a law is prepared. The pretext which begins the sentence with the fundamentals of a liberal and a democratic society, just after a few sentences later, by saying that they do not deserve such a treatment from the ILO and by saying that it finds the criticisms against the laws numbered 2821 and 2822 unfair, confesses that it is in intention of defending such laws.
When we look at the details of the draft law such a situation appears. The draft law which is prepared and presented to the parliament contains arrangements more backward than the current law and it continues its contradiction with the ILO principles. The draft, although in the section related with the trade unions is claiming to be liberal and although some of the arrangements actually enable the trade unions to arrange their own activities, because the restrictions in relation with collective agreement and strike which are the fundamental trade union activities continue such freedoms serve a trade union right without strike and collective agreement. This is the first dimension of the problem.
The second dimension is that there is serious deterioration in between the first form of the draft law when it was in the council of ministers and in its later form which was sent by the council of ministers to the parliament.
This situation appeared after the meeting made among the prime minister and the Türk-İş delegation. Transformation of the draft, which was claimed to be more “liberal” but which was not in conformity with the ILO principles by any means, into a form serving the capital, Türk-İş and government coalition and the private and reactionary interests, when it was sent to the parliament, is indeed a second 12 September coup d’etat against the trade union movement. And the social actors are the same.
In this information note the following points will be underlined:
1) The draft law which is sent to the parliament is not in conformity with the ILO principles in any sense.
2) The draft law contains provisions even more backward than the existing laws numbered 2821 and 2822.
3) The draft law which is sent to the parliament is more backward than the draft which came to the council of ministers.
Contradiction with ILO continues
1) The condition of organisation on sector base is contradictory to the freedom of organisation.
a) The condition for the trade unions only to organise on sector base brings limitations on the forms of the trade union organisation, and trade unions based on workplace and profession as well as federation type trade unions are prohibited.
b) Unification of the trade unions which are organised in different sectors are prevented.
c) The sphere of activities of the trade unions is limited by a single sector and the employees are deprived of their rights to decide on the form of the trade union with their free will.
d) Trade union freedom which is not recognised for the workers is recognised for the public employers and the condition for the public employers’ trade unions to be established over sector basis is abandoned.
2) The sector, workplace and enterprise thresholds destroy collective agreement freedom.
a) The 10 percent sector threshold which exists in the current law is reduced to 3 percent in the draft law but the double threshold system continues as 3 percent at the sector level and as 50+1 percent at the workplace level. A new threshold is added to these and the enterprise threshold is determined as 40 percent.
b) The condition for the trade unions to inform the state about their membership continues and the authorisation assessments are continued to be made by the Ministry of Labour.
c) The framework agreement which takes place in the draft law is an arrangement where there is no right to strike, where no wage bargaining might be done and which only covers the members of those who are the parties of the agreement.
3) The restrictions over the right to strike continue.
a) Strike is defined only as a right which might be used at the end of the collective agreement.
b) Strike for rights, strike for political purposes and general strike continue to be prohibited.
c) The restrictions which are brought over the legal strike practices continue.
d) The authority of the Council of Ministers to delay a decided or implemented strike continues.
The draft law contains more backward provisions than the existing law
1) Threshold at the sector level will cause many trade unions to loss their authorisations.
a) The draft law while decreasing the number of the sectors which is 28 to 18, because it is unifying the sectors, in some of the sectors the number of the membership which is required for collective agreement rises over the existing number. While in the existing law there is no threshold in the sector of agriculture and fishery, together with the draft law, thresholds are brought also to this sector. The sectors, where the number of the required members rise over the existing number are the sectors of Sugar, Leather, Ships, Trade, Office, Education and Fine Arts, Land Transport, Railroad Transport, Maritime Transport, Civil Aviation Transport, Wholesale and Storage and National Defence. (A sector called as National Defence only exits in this country at the world level).
b) The statistics in connection with the trade union memberships are not reliable. The Ministry of Labour has two different data about the trade union membership. While according to one of them, the number of the trade union membership is over 3 millions, in the other one this number (the number of the workers who work at the workplaces where collective agreements are signed) is about 800 thousand. In this circumstances, when the draft is legislated many trade unions will be below the threshold although the 10 percent threshold is reduced to 3 percent.
c) According to an arrangement which is made with a preliminary article of the draft law, the trade unions which were above the sector threshold at the date of July 2009, even if they are below the sector threshold as the date of the enactment of the law, they will not have any authorisation problem. This arrangement destroys the equality principle by subjecting the recently organised trade unions and the trade unions which are known to be below the threshold to differentiated arrangements and it damages the principle of independence of the trade unions from the state. Also, it puts a great obstacle in front of the organisation of the trade unions.
2) Trade union membership and the trade unions are taken under control.
a) Although abandonment of the notary condition at membership and resignation are apparently positive arrangements, that membership and resignation will be done over the e-state gate will cause the employers who want to get rid of trade union organisation to put pressure over the members of the trade unions for their resignation.
b) The obligation brought for the trade unions to make their financial audits to chartered accountants other than their auditing boards and the obligation to publish these audits increase the control over the trade unions.
3) Collective bargaining authorisation is under threat.
According to the arrangement in the draft law, in the case that the collective agreement negotiations result with disagreement, collective agreement authorisation of the trade union which does not inform the disagreement in a time of 6 business days to the relevant authority will be cancelled. In the existing law when the disagreement is not informed such authority appoints a mediator in its own capacity.
4) The right to strike is taken back than the existing situation.
a) According to the existing arrangement, in the strike voting, in the case where one plus half of those who work in the workplace use negative vote the trade unions cannot implement strike decision. The draft law sees one plus half of those who participate in the voting adequate for stopping the implementation of the strike and thus the probability for negative voting is strengthened.
b) While in the existing law the trade union is held responsible for the damages caused by illegal strike, together with the draft law, the trade union will be held responsible for the material damage causes by the “defective” action of the trade union during a legal strike.
c) The arrangement about the possibility to sell the products produced and to carry them out of the workplace before the strike begins takes place in the draft law.
d) Together with the draft law a new and covered strike ban is brought. The provision saying that 40 percent of the activities of the workplace and enterprises might continue during the strike and the workers who will participate in the strike will be determined by the employer is put in the draft law, for the time being only in the civil aviation transport sector.
e) About the process of ending a continuing strike, the draft law brings an arrangement as the resignation assessment of three fourth of the members by the date of collective agreement authorisation assessment. Especially in the workplaces where the organisation is new, before the collective agreement process many trade union members are dismissed and for this reason this makes the strike to be stopped more easily.
The final form of the draft law is more backward than its first form.
The Collective Labour Relations Law is now even backward than its first form when it came to the council of ministers. The draft law was confronted with the resistance of many ministers in the council of ministers. The pretext of the resistance was that such a law will create trouble for the companies in a process where the economic crisis is arriving. The statements of the ministers were reflected to the mass media. Another focus of resistance was the Türk-İş confederation. Türk-İş, together with TİSK (Confederation of Turkish Employers’ Trade Unions) continued its lobbying activities especially on the issues of sector threshold and notary precondition at the resignation. The draft law is sent to the parliament as it is modified together with the collaboration of this sacred alliance.
1) The sector threshold which was 0.5 percent rose to 3 percent.
2) In the draft law which is sent to the council of ministers, about the security of the workplace trade union representative, the arrangement saying that, in the legal cases for return to job sued by the representative whose work contract is cancelled, in the case where return to job is decided, the wage and the other rights in between the date of cancelling and the date of finalization of the decision of return would be paid is withdrawn from the draft law that is sent to the parliament.
3) The arrangement saying that, on the condition that the trade union representative and the trade union and branch officials who work in a workplace would apply to the job within 6 business days from the finalization of the decision for return to job, if the employer does not make them start work, the work relation would be deemed to continue during the continuation of the representative title, and the wage and other right would be continued, is cancelled from the draft law sent to the parliament. In the previous form, the representative who sued for return to job was in a position to enjoy such rights in the case he/she was re-appointed as the representative.
4) According to the legislation in effect, for the workers to be able to sue for return to job, the condition that the number of the workers working in the workplace should be 30 or more and the worker should have six months of severance. This condition is also relevant for the cancelling made because of trade union reasons. While in the draft law presented to the council of ministers, the right was given to the worker whose work contract is cancelled because of trade union reasons to sue for return to job even if the condition of 30 workers and six months of severance did not exit, in the draft law sent to the parliament this arrangement is cancelled.
5) While according to the draft law sent to the council of ministers, the confederations and the trade unions were able to receive in cash or in kind aid from the people, institutions and organisations abroad by pre-notifying the ministry, in the draft law sent to the parliament, they are able to receive aid from the sources other than the international institutions to which they are or Turkish Republic is affiliated only by the permission of the council of ministers.
6) While in the draft law presented to the council of ministers, in the case where the strike is delayed for 60 days with the decision of the council of ministers, if at the end of this period the parties still did not agree, it was possible to continue the strike, in the draft law presented to the parliament, the authorisation of the trade union will be cancelled if it does not apply to the high arbitration board at the end of the delayed period.
7) While in the draft law presented to the council of ministers, the workplaces which are run by the Ministry of National Defence and General Command of Gendarmerie and Command of Coastal Security were excluded from the context of the workplaces where the strikes are banned, this ban once again took place in the draft law presented to the parliament.
8) In the law in effect, it is prohibited for the strike picketers and those participating in the strike to construct housing tools such as huts, barracks and tents in front of the workplace. Although this ban was cancelled in the draft law presented to the council of ministers in the draft law sent to the parliament it is once again established.
9) According to the legislation in effect it is prohibited for the trade unions to establish radios and televisions. Although this ban was cancelled in the draft law presented to the council of ministers in the draft law sent to the parliament it is once again established.
Conclusion: It is possible that draft law to be drawn more backward in the parliament
It once more appeared in the recent process that there is great resistance for changing the trade unions and collective agreements laws which are in effect for 29 years. The desire for a trade union regime under the control of the state and capital is the most significant source of resistance against the change of these laws.
The draft law which is sent to the parliament is in no way in conformity with the ILO principles and the other international conventions which the Republic of Turkey signed. However, the events that occurred over a single draft since 5-6 months showed the existence of a large front which is in resistance against the universal rules. While the government, organisations of capital and Türk-İş are the active actors of this front, Hak-İş is used as a tool of squeezing Türk-İş.
Those who understood that the universal rules would end the trade union sultanate which was transferred to them by the 12 September military coup d’etat, those who felt that together with the disappearance of the obstacles in front of the workers’ organisation the conditions of their exploitation and domination would be limited, and the political representative of them, tried every possible thing to obstruct the process and it seems that they will continue to do so.
As it is told in the general pretext of the draft law, “At the point arrived, it is not possible to take the Turkish trade unionism and thus the collective agreement order forward with the laws numbered 2821 and 2822…”
Right, but it is not either possible to go forward by walking around the universal rules. Even if you reduce the threshold to 0.0001 percent what is contradictory to the universal rules is not the percent but the threshold itself. Even if you open the way for the trade unions to determine all of their activities with their own rules and statutes, as long as you limit the right to strike and collective agreement, you will not be in conformity with the universal rules.
The draft law is in the parliament at the moment and the forces behind the draft law are even stronger in the parliament. For this reason, it is even highly possible that some positive arrangements which are spread in the draft to be cut here.
The arrangement stating that the objections made for the determination of the sector not to be a cause of waiting for collective agreement authorisation might be cut in the parliament.
The arrangement for cancelling the condition of notary at the membership and resignation might be transformed into the continuation of the notary condition especially at the resignation.
The arrangement that continuation of the trade union positions during the period of candidacy for being deputies or mayors and the continuation of the trade union positions of those trade union officials elected as councillor, headman etc. might be cut.
Right to objection at court for the workplace delegation elections might be abandoned.
Obligation to appoint the elected representatives might be cut.
In order all of these not to occur, and a free and democratic legal arrangement to occur, great task and responsibilities belong to the international trade union movement.
What is experienced in Turkey once more showed something: one of the most important obstacles in front of a struggle for a free and democratic legislation is the trade union structures which are fed by the collective labour legislation regime in effect in the country. These structures took the fundamental principles which the working class and the trade union movement struggled and paid costs to achieve under their feet and ignored the basic principles of the institutions to which they are affiliated.
Unless they are warned and unless they are subjected to the necessary sanctions a free and democratic legal arrangement will not be more than a dream.