This article has been prepared for the purpose of providing information regarding general information and process of Collective Bargaining Agreements. 

A. General Information on Collective Bargaining Agreements

  • Collective bargaining agreement (“collective agreement”) is defined as the agreement entered into between an employee union and (an employer union or) an employer that is not a union member in order to regulate the execution, context and termination of employment agreements. Only an authorized union may execute a collective agreement with an employer.

Collective agreements may also include provisions that regulate the rights and obligations of the parties, implementation and supervision of the agreement and the remedies to be applied in relation to the resolution of disputes. Collective agreements shall not be regulated against the Turkish Constitution.

  • To obtain authorization (to execute a collective agreement with a specific employer), the employee union shall apply to the Labor and Social Security Ministry (“Ministry”) to request authorization to execute collective agreement and satisfy the below criteria;
  • must have members equivalent to 1% of the business line across the whole country, and
  • must have
  • more than %50 of the employees of the workplace (of the company) as members if collective agreement will be done workplace wide (if employer has more than 1 workplaces in the same business line, then the collective agreement cannot be done workplace wide but it shall be done establishment wide as mentioned below),
  • %40 of the employees of establishment (all workplaces of the same company in the same business line) as members if collective agreement will be done establishment wide[1].

As the first condition of authorization, it is crucial to determine the business line in which the company is being. The business line, mentioned in the first condition, is determined with the regulation issued by the Ministry.

The employees are able to become member of union via (online) e-state system. In the system of e-state, the employees can only be member of union being in the business line of company.

  • Within 15 days from announcement of the decision of Ministry regarding the business line, one of the related parties is able to file an objection lawsuit against the decision of Ministry before Labor Court. However, filing an objection lawsuit against the determination of Ministry regarding business line of workplace does not stop the authorization process.

The court will then determine the business line by assigning the experts. The assigned experts should be the experts related to the work doing in the business place. Otherwise, the expert report should not be accepted in accordance with the decisions of Supreme Court of Appeals. 

In the expert determination, the experts do consider the type of work in the workplace. Upon submission of such report to the court, the court does evaluate if the expert report is eligible for taking a decision. In the case that the expert report is eligible, the court will take a decision in accordance with the expert report.

  • Members of the employee union, which is a party to the collective agreement, shall benefit from the provisions of the executed collective agreement. 
  • Collective agreements shall be executed in written and for at least 1 year up to 3 years at the most. The term of collective agreements cannot be extended, shortened and terminated before its expiration by the parties following its signing. Collective agreements applied to the works that continues for less than one year may be executed for a term of less than a year.
  • Unless otherwise specified in the collective agreement, employment agreements of the union member employees shall not be contrary to the collective agreements.

B. Process for the Collective Bargaining Agreement;

  • The process with respect to obtaining the authorization document

In order for the union to obtain the authorization, the union will apply to the Ministry for authorization. If the conditions set forth above are satisfied, the Ministry will send the authorization documents to the union and the employer.

The document of authorization sent to the parties is not a final decision indicating the authority of the union at the workplace. The employer is able to file an objection lawsuit against this authorization within 6 business days from the receipt date of authorization document. In this objection lawsuit, the employer may claim that the conditions by which the union will take the authorization are not satisfied by the union. The objection will have to be submitted with concrete evidences otherwise the court will be able to reject the objection.

The objection against to the authorization will stop the process of authorization. In case that the objection is rejected by the court, the Ministry will provide the authorization document to the union indicating that the union will be able to sign a collective bargaining agreement.

  • The process of meetings for collective bargaining agreement

Within 15 days as of union obtaining the final authorization document, the other party will be called to the collective bargaining.

Within 6 business days from the receipt date of invitation regarding collective bargaining agreement, the parties will also determine the place, the time and the day of first meeting.

At the first meeting, the parties will determine the process of meetings and provide to each other their authorization documents. In case that the union does not attend to the first meeting, the authorization of union will become invalid.

The period of collective bargaining meetings will be maximum 60 days from the first meeting. In case that the parties have an agreement within 60 days from the first meeting, the collective bargaining agreement will be signed. If the parties do not have an agreement within 60 days period, the parties will draft a disagreement report. In this disagreement report, the parties will determine the disagreed points.

  • The mediation process

Within 6 business days as of the receipt of disagreement report, the Directorate of Labor will assign a mediator in order to solve the disagreed points between the parties.

The mediator has 15 days in order to solve the disagreed points. The 15 days period can be extended for another 6 business days by the mutual decision of parties.

The mediator will submit proposals to the parties in order for parties to reach an agreement. However, the mediator does not have an authority to rule a decision with respect to disagreed points.

At the end of mediation process, if disagreed points are solved, the collective bargaining agreement will be signed. In case that the parties do not have an agreement at the end of mediation process, the mediator will draft a disagreement report. In this disagreement report, the mediator will also indicate the opinions by which the disagreement can be solved. The disagreement report will be submitted to the Directorate of Labor by the mediator. The Directorate of Labor will then send the disagreement report to the parties.

  • The strike process

Strike is defined as the work stoppage of the employees in order to suspend or significantly hinder the activities at the workplace by means of stopping work by agreeing between themselves or by following the decision of a union or confederation with the same purpose.

Legal strike is conducted in accordance with the provisions of the legislation in order to protect or develop the economic and social situations and working conditions of the employees, in case of a dispute by the time of execution of collective agreements. A strike occurred without the conditions of legal strike shall be deemed as illegal.

Within 60 days from the time of the disagreement report prepared by the mediator is received, the union will have to take and execute the strike decision.

Once the strike decision is taken by the union, the strike decision will have to be announced by the union at the workplace as soon as possible.

Before executing the strike, the union will inform the employer via notary public of the execution date before 6 business days from the execution time of strike.

The afore-mentioned process should be followed by the union otherwise the strike can be determined as unlawful with the decision of Labor Court.

  • The process with respect to the voting against strike

Within 6 business days of the announcement of strike, minimum ¼ of employees working at the workplace can request voting regarding the strike. In this case, minimum ¼ of employees will submit the petition with their signatures, which is indicating their request for voting for strike.

Apart from the representative of employer, all the employees including unionized or unionized employees as well as part time workers can request for voting of strike.

The afore-mentioned 6 business days is final term. If the minimum ¼ of employees working at the workplace do not request voting in afore-mentioned 6 business days, the voting cannot be requested afterwards. 

Within 6 business days from the time when this petition is received by the authority, the voting will be executed in the workplace as to whether the employees are willing for strike. If more than ½ employees working at the workplace and attended to voting vote not to execute the strike, the strike will not be executed. In this case, the union will have to apply to the High Board of Arbitration within 6 business days from the day when the result of voting is final. (The parties will be able to file an objection lawsuit against the result of voting within 3 business days from the voting. If this lawsuit is rejected or the parties do not file objection lawsuit against the voting, the voting will be final). The High Board of Arbitration will draft the collective bargaining agreement and this agreement will be final.

  • The execution process of strike

If more than ½ employees working at the workplace attended to voting vote to execute the strike, the strike will be executed on the determined date for execution.

During the strike, the agreements of the employees attended to the strike will be pending. These employees will have to leave the work.

The employees who do not attend to the strike cannot be prevented from working.

If production is carried out with existing employees who do not participate to the strike and with those working in their own position; the afore-mentioned production cannot be prevented or limited due to the strike. If there is no such afore-mentioned condition, the production is prohibited during the strike according to the article 65 of the Law. The production again will be determined as illegal act if the production is executed  by employees taking on a task other than their own. The goods, produced as a result of production which is determined as illegal act, cannot be taken out or put up for sale. However, without any condition, the products, produced before the strike, can not be prevented from being taken out and put on sale in any way.

The wages and social monetary rights will not be paid to the employees attended to the strike. Additionally the term of strike will not be considered for the severance payment of the employees attended to the strike. The employees attended to the strike will not be able to work at another company or person during the strike.

According to Article 68/1 of Law, the work of employees attended to strike cannot be transferred to the employees who do not attend to the strike and work at the workplace. The employer will not be able to employ new employees in return for the employees whose contracts are pending due to the strike.  

The strike will be terminated in case that; (i) the parties agree on collective agreement, (ii) the union may end up the strike with its decision, (iii) the parties apply to special arbitrator, (iv) the union is annulled, closed or dissolved or (v) ¾ of members of union resign from the membership.

  • The lock-out process

Against the strike, the employer will be able to apply to the lock-out process.

Lockout is defined as the collective removal of the employees from work by the employer and employer representative with their own decision or by following a decision of a union or confederation, in a way to stop the activities at the workplace completely.

Legal lockout is conducted in accordance with the provisions of the legislation in case there is a dispute arose by the time of execution of collective agreement and the employee union has decided for strike. A lockout occurred without the conditions of legal lockout shall be deemed as illegal.

If the employer does apply the lock-out process, the employees will be locked out all together from the work. In this regard, even the un-unionized employees will be locked out from the workplace, which makes lock-out different from the strike.

The outcome of lock-out will be the same as the strike. In this regard, the employees locked out will not take the wages from the employer. The locked out employees will not benefit from social monetary rights. Additionally the term of lock-out will not be considered for the severance payment of the employees subjected to the lock-out. The locked out employees will not be able to work at another company or person.

[1] If more than one union satisfy the above criteria for authorization, then the union with the most members (who are employees of the employer) will be deemed authorized at the establishment.

Serkan Kolay
Partner | [email protected]