ASSURANCE OF UNION RIGHTS AND THE CRIME OF HINDERING UNION RIGHTS

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Freedom of union generally refers to the following rights of employees and employers; the ability to freely establish their organizations without prior permission, to become members of these organizations individually, to freely make bylaws and internal regulations, to freely choose their representatives, to freely regulate their management and activities and business programs. It is stated that the protection of individual union freedom has three dimensions; members, workplace union representatives and union managers.

In the first paragraph of Article 25 of law 6356, the protections for members that constitute the first dimension of the protection of freedom of union are given as follows: “Recruitment of employees; they cannot be bound by the condition of joining or not joining a certain union, continuing or withdrawing from a certain union or being a member of any union or not.” The following regulation is included in the second paragraph of the aforementioned article; “The employer may not make any distinction between employees who are members of a trade union and employees who are not members of a union or workers who are members of separate unions in terms of working conditions or termination of employment.” and Paragraph 3 contains the following regulation; “employees may not be fired or treated differently for the following reasons; due to their membership or non-membership in the Union, outside of business hours or within business hours with the permission of the employer, due to participation in the activities of employees organizations or participation in trade union activities.”

Between paragraphs 4 and 9 of Article 25, the rights of the employee are regulated in detail if the employee’s employment contract is terminated for union reasons. If the employee files a reemployment lawsuit against the employer and this case is concluded against the employer, the following considerations may be decided;

    • Reemployment of the plaintiff with invalidity of termination by the courts,
  • Payment of 4 months idle time fee and other rights to the plaintiff (If the difference that will occur due to the addition of a 4-month period to the employee’s seniority occurs with severance pay, the difference is payment in lieu of notice, the difference is annual leave paid),
  • A union compensation to be determined by the court, not less than the amount of 12 months  wages, is paid to the plaintiff, regardless of the condition that regardless of whether the employee reemployment or not ,
  • Payment of litigation expenses and fixed counsel’s fee to the plaintiff

The second dimension of the protection of union freedom is the protective provisions relating to union representatives in the workplace. Union workplace representatives have a very important place in the exercise of union freedom. The use of union rights, implementation and supervision of collective labor agreements, communication of union members with the union and the employer, fulfillment of complaints, discipline and dispute resolution functions, and organization activities will be carried out at workplace level. These representatives, who continue to have a business relationship with the employer, to perform their functions in a healthy way; it requires stronger protection against termination and discrimination than other union employees.

The third and last dimension of the protection of union freedom is the protective provisions regarding the union manager. The protection provisions related to this are included in the 23rd article of the Law No. 6356. The mentioned article is as follows; “The employment contract of an employee who leaves his workplace because employee is a manager in the employee organization is suspended. If the manager wantes, their terminates the employment contract without complying with the notice period or waiting for the end of the contract period on the date their leaves the job and is entitled to severance pay. If the manager terminates the employment contract within the management period, severance pay is calculated over the equivalent wage on the date of termination. The manager whose employment contract is suspended may apply to the employer to be reemployement in the workplace their left within 1 month from the date of termination, in the following cases; in case of termination of the legal personality of the union, the termination of its duty by not participating in the elections, not being re-elected, or by exclusion voluntarily. The employer must initiate these persons within one month from the date of the request to their previous job or other job appropriate to their former job under the current conditions. If these persons are not reemployment in due time, their employment contract is deemed to have been terminated by the employer. The union manager whose managerial duty is terminated for reasons other than those listed above, is paid severance pay by the employer upon their application. The union manager whose managerial duty is terminated for reasons other than those listed above, is paid severance pay by the employer upon their application. While calculating the compensation to be paid, the periods worked in the workplace are taken into consideration and the wages and other rights valid for the equivalent at the time of termination are taken into account. Employee’s rights arising from labor laws are reserved ”.

Union freedom is divided into two as individual and collective union freedom. Individual union freedom is also divided into two as positive and negative individual union freedom. As an example of positive individual union freedom; we can show that individuals freely form unions, join established unions or participate in union activities. As an example of negative individual union freedom; individuals may be shown the right not to be a member of the union, to leave the union of which they are a member, and not to participate in union activities. Collective freedom of trade union has 3 aspects; the trade union protects its own existence by being a legal entity independent of persons (such as being able to be freely established, freely regulate its bylaws and organization, be able to take disciplinary action for the conduct of members contrary to the discipline of the trade union, be terminated by a court decision), engaging in an activity to attract members to the union (propaganda) and engaging in specific activity. In collective union freedom, the activities of the union, not the individuals, are protected. As an example of collective union freedom; The union’s collecting dues, enrolling members, collective labor agreement , striking or lockout, freely performing its activities, establishing a confederation, becoming a member of the confederation or leaving the membership are examples.

Article 118 of the Turkish Penal Code titled “Preventing the Exercise of Union Rights” is regulated as follows; A person who uses force or threats in order to compel another person to be, or not to be, a member of a trade union, to attend or not to attend activities of a trade union, to leave a trade union or to leave a position of management of a trade union shall be sentenced to a penalty of imprisonment for a term of six months to two years. In the event that the activities of a trade union are prevented by the use of force, threats, or by means of any other unlawful act, a penalty of imprisonment for a term of one to three years shall be imposed.” In accordance with the principle of “individual criminal responsibility”, in case of detection of attitudes and behaviors that are contrary to the aforementioned legal regulation; “Union” or “company” legal entities will not be subject to sanctions. The person carrying out the said action will be the suspect of the crime, for example Employer Representative or Union representative. Since the mentioned crime is organized as a danger crime, it is not necessary to prevent the use of the union right for the realization of the crime; the use of force or threat is considered sufficient to prevent union freedom.

 

Ayça Kortel, Attorney At Law

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