This article consists of two parts; in the first part, the circular of the Ministry of Family, Labor and Social Services, General Directorate of Labor dated 23.03.2020 on Coronavirus measures and the effect of this circular on Collective Labor Agreement will be evaluated. In the second part, the legal procedures in which employers who have difficulty in fulfilling their obligations in the Collective Labor Agreement due to Covid-19 pandemic can apply in accordance with the Unions and Collective Bargaining Law No. 6356.

I. EVALUATION OF THE COLLECTIVE LABOR AGREEMENT PROCEDURE IN ACCORDANCE WITH THE CIRCULAR OF THE GENERAL DIRECTORATE OF THE MINISTRY OF FAMILY, WORK AND SOCIAL SERVICES DATED 23.03.2020

In summary in the circular of the Ministry of Family, Labor and Social Services, General Directorate of Labor on Coronavirus measures dated 23.03.2020[1]; according to the letter of the Ministry of Internal Affairs dated 16.03.2020 and numbered 89780864-153-E.5361 and Public Health Law no. 1593 and dated 24.04.1930, all kinds of meetings and activities (except for the administrative activities that require enforcement) of non-governmental organizations bringing people together, including trainings, which was decided to be postponed on Monday,

[1] Letter of Ministry of Family, Labor and Social Services dated 23.03.2020

16.03.2020 at 24.00, the curfew of those who have chronic illnesses and citizens over 65 years of age, with the “curfew circular for those over 65 years old and those with chronic illness” published on 21.03.2020 stating that this restriction is making it impossible to carry out activities such as collective labor negotiation and strike voting, it was decided that the collective labor process to be stopped on the grounds that it may cause loss of rights between the parties;

  • In accordance with the provisions of the “Collective Labor Agreement Authorization Determination and Strike Voting Regulation” prepared on the basis of Articles 42 and 61 of the Unions and Collective Labor Agreement Law No. 6356 and the “Regulation on Applying to the Mediator and Arbitrator in the Collective Labor Agreement” prepared on the basis of article 57 of aforementioned law to stop the works and transactions conducted by the General Directorate of Labor and the Official,
  • It will be appropriate to continue the membership transactions made through e-Devlet within the scope of the Unions and Collective Labor Law numbered 6356 and the transactions outside the scope of the first article of this circular, ”

is stated.

  1. Legal Characteristics of the Ministry Circular and Its Place in the Hierarchy of Norms

In accordance with the principle of “Hierarchy of Norms”, which is also included in Article 138 of the Constitution, the rules of law are from top to bottom as “Constitution”, “Law”, “Decree Law”, “Guideline”, “Regulation” and “Other sub-regulatory actions. (Directive, Circular, etc.) “,

and it is not possible for a norm in the lower level to be contrary to the norm in the upper level or to contain arrangements that exceed its scope.[1] The situation is explained with the principle of “Tu patere legem quam facisti” which is expressed as “Until the general rules are duly amended or abolished, they also bind authorities and institutions that have the authority to enforce regulatory action”. As a natural result of this principle, it is illegal to enforce regulatory actions by the administration contrary to the legal rules in the upper levels of hierarchy of the norms.[2] This means that it is not possible to eliminate a right recognized by the law through a lower level of administrative action. [3]

In this context,  when we evaluate the Ministry Circular mentioned above, the use of the rights (such as the right to conduct collective labor negotiation), which is granted by the legal regulations introduced by the Law on Unions and Collective Bargaining Agreements no. 6356, should be stopped with an equivalent law in the hierarchy of the norms . As a matter of fact, with the Law No. 7622, ​​it was decided to stop the periods regulated by Execution and Bankruptcy law and other laws until the date of 30.04.2020 and the regulation in the law was amended with an equivalent law.

From this point of view, in case of  a conflict arising between the parties, it can be ruled by courts that it will be illegal to stop the use of the right granted by the Law on Unions and Collective Labor Agreements No. 6356 through a circular.

[1] Judgment of the 10th Civil Chamber of the Supreme Court  file no. 2013/24896 and decision no. 2014/13391

[2] Judgment of the 10th Civil Chamber of the Supreme Court  file no. 2013/24896 and decision no. 2014/13391

[3] Judgment of the 10th Civil Chamber of the Supreme Court dated 29.01.2019 , file no. 2018/5559 and decision no. 2019/419

In this writing, we will evaluate the effect of the Ministry Circular on the collective labor negotiation process and which stages of the collective labor negotiation process has been stopped by this circular, with the annotation of the aforementioned matter.

  1. Pursuant to the Ministry Circular, are the Collective Agreement Negotiations stopped?

In the ministry circular mentioned above, it is stated that the situation caused by Covid 19 makes it impossible to carry out activities such as collective bargaining and strike voting, and it is also stated that it is decided to stop the operations in the form of two clauses mentioned in the article.

In accordance with the article 44 and the ongoing articles of the law no.6356, the Union which receives the final authority certificate calls the employer to a collective meeting within 15 days and within six working days from the date of notification to the other party of the call, the parties shall designate the place, day and time of the collective meeting and the duration of the collective labor agreement is 60 days from the date of the first meeting.

In this process, the most important question raised by the parties within the scope of the ministry circular mentioned above is whether the collective labor agreement negotiations will stop as part of the of Covid 19 measures.

Although the contents of the two articles in which the stopped proceedings are stated in are not fully understood, “the situation caused by Covid 19 makes it impossible to carry out activities such as collective bargaining and strike voting” is stated in the upper part of the article. This statement is very clear; it is understood by this article that the will of the Ministry is that the collective labor negotiations are also stopped. The acceptance of a contrary situation is contrary to the whole purpose of this article and the articles of the Ministry of Interior on which this article is based, and the measures taken.

  • Does the aforementioned circular of the ministry prevent the parties from having collective bargaining?

Of course, this does not prevent the workplaces and trade unions that are in the process of collective bargaining in some way from agreeing on the terms of the collective labor agreement and concluding the collective labor agreement. The employer and the union can negotiate by teleconferencing or other means of technical communication without physically coming together and conclude a contract. After the parties have concluded the contract, it cannot be argued that this contract was made in spite of the above-mentioned circular, and that it is invalid. Because it is an injunction taken by the circular of the ministry; the conclusion of the contract cannot be interpreted against the essential of the contract despite this injunction. However, the parties may, in accordance with the Ministry circular, stop collective bargaining in order not to conclude a collective labor agreement in an environment of such economic uncertainty, nor to waste an important negotiation period such as 60 days.

4. Is the Process of the Certificate of Authority stopped in accordance with the Ministry Circular?

Pursuant to the article 42 of act numbered 6356, if the Workers Union makes an application to the Ministry to determine that it is authorized in the workplace, as a rule, when it determines that the Union of workers is authorized according to the records of the ministry, the determination letter must be notified to the parties. In accordance with the above-mentioned circular of the ministry, even if the Union applies to the Ministry to determine that it is authorized, the Ministry will not send the authority determination letter to the parties.

If the stage at the workplace, as of the date of publication of the circular of the Ministry, is a stage where the authority determination letter is not challenged and the final authority certificate is expected, then the final authority certificate will not be sent to the parties as a process of the General Directorate of Work.

        5. Is the Mediation Process stopped pursuant to the Ministry Circular?  

If the parties fail to agree within the 60-day period stated above, they shall issue the dispute report and submit it to the ministry. The competent authority who receives the dispute letter appoints a mediator within six working days. Since the above-mentioned article of the ministry states that all the procedures of the competent authority have stopped; if the parties cannot continue collective bargaining within 60 days and reach an agreement, the competent authority will not bring the process to the mediation stage. Briefly, the mediation process has also stopped pursuant to the above-mentioned article of the ministry. Here the following question may be raised; If, prior to the ministry circular, the mediator was appointed and the Ministry circular was issued while negotiations were being held in front of the mediator, will these negotiations in the mediation process stop? Based on the statement in the circular that it is impossible to conduct collective labor negotiations, it is considered that the negotiations held in front of the mediator have also stopped.

6. Can the already taken strike decision be implemented in accordance with the Ministry Circular?

When the ministry circular is reviewed; it is stated that the situation caused by Covid 19 made it impossible for activities such as collective bargaining and strike voting to take place and also it is decided in the sub clause 1 to stop the proceedings to be made by the Directorate General of Labor and by the competent authority according to articles 42 and 61 of the act numbered 6356. Strike is regulated in the Article 58 of the Act numbered 6356; and no stop decision was made by explicitly referring to this article in the Circular of the Ministry. Strike is the most sensitive and important stage of the collective labor agreement process; and the fact that such an important stage is not mentioned in the circular is that the position of the ministry on this issue is to not stop the implementation of the strike decision by the situation created by Covid 19. As a result, the Circular of the Ministry will not stop the implementation of the strike decision already taken; the strike decisions can be executed.

II. WITH THE ECONOMIC DEVASTATION CAUSED BY COVID-19,WHAT LEGAL MEANS CAN THE EMPLOYER APPLY IF IT FAILS TO FULFILL IT’S OBLIGATIONS IN THE COLLECTIVE BARGAINING AGREEMENT?

The economic devastation caused by Covid 19 negatively affects workplaces with Collective Labor Agreements at work and these workplaces may not be able to fulfill their obligations arising from the Collective Labor Agreement due to the economic devastation caused by Covid 19. In this case the employer may apply to two ways;

The employer and the Union may remove or mitigate the provisions which have difficulty in fulfillment with a protocol.

The removal or easing of debt-generating provisions that are difficult to pay can be considered by reuniting with the union, which is a party to the Collective Labor Agreement. However, the important point here is that it is not possible to remove the vested rights even if agreed by the employer and the Union. [1] Employers and unions can only make changes to expected rights in the future. Written consent must be obtained from each worker in order to abolish or mitigate the vested rights. Those who have the authority of a collective labor agreement may decide to increase and even decrease the rights in the future by means of an additional protocol between them.[2]

However, as a rule, changes to the collective labor agreement will not be effective to the past. These changes made between the parties of the collective labor agreement shall have consequences forward-looking from the date they are made.[3]

The employer may file a “case for adaptation” due to excessive fulfillment difficulties.

If the employer fails on the first option above to reach an agreement with the Union for future rights  and also on vested rights with the workers , the employer may file a case for “adaptation of the contract due to changing circumstances”. Although there are arguments in the doctrine as to whether the employer can demand adaptation due to changing conditions because of the peculiar nature of the collective labor agreement, the Supreme Court’s decisions state that the employer can demand such adaptation and it has been stated that the convention may be brought to a tolerable level not excessive to the extent and level permitted by the objective rules of goodwill, fairness and well-being appropriate for the purpose of the parties. This establishment, In Article 138 of the Turkish Code of Obligations No. 6098 Under the heading “extreme fulfilment difficulties” , it is arranged as follows:

“An extraordinary situation, which was not foreseen by the parties at the time of making the contract and which was not expected to be foreseen, arises for a reason not caused by the debtor and changes the facts present at the time of the contract against the debtor to such a degree that the request for fulfillment is contrary to the rules of honesty and if the debtor has not yet fulfilled his debt or has performed it by reserving his rights arising from the excessive difficulty of fulfillment, the debtor has the right to ask the judge to adapt the contract to the new conditions and, if this is not possible, to withdraw from the contract. In contracts of continuous performance, the debtor uses the right of termination instead of the right to withdraw as a rule.”

If we evaluate the conditions specified under Article 138 of the Turkish Code of obligations in terms of the situation arising due to Covid 19;

  • The situation arising due to Covid 19 is a situation in which the debtor is obliged to take into account according to the ordinary course of daily life and is thought to meet the extraordinary situation specified in the article.
  • The situation posed by the Covid 19 cause is an unforeseeable extraordinary situation and it does not arise from the debtor.
  •  The situation arising due to Covid 19 has changed the facts that were present at the time of the contract to such a degree that asking him to fulfillment is against the rules of honesty against the debtor.
  • The final condition of the adaptation case regarding Covid 19 is that the material provisions contained in the collective labor agreement are not paid or paid without prejudice. The mental reservation, as stated in the article, should be in the direction of reserving the rights arising from excessive difficulty of fulfillment. If the costs specified in the Collective Labor Agreement are paid without mental reservation, adaptation conditions will not arise.

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