ABSTRACT
The trade union compensation, which is a legal sanction applied in case of violation of trade union freedom, is regulated under the “Law On Trade Unions and Collective Bargaining Agreements”. There have been significant changes in the mentioned law based on the Constitutional Court decision dated 22.10.2014. This article is a study of the mentioned changes and the reemployment lawsuits in which claims for trade union competition may arise.
I. INTRODUCTION
Trade union compensation, which is an assurance for the trade union freedom, is a sanction brought in order to prevent the employers from discriminating between the employees during the termination of the employment agreements. Due to the fact that the trade union compensation was regulated under the Law on Trade Unions No. 28211 previously and it is regulated under Law on Trade Unions and Collective Bargaining Agreements No. 63562(“STSK”) as from 2012, there are differences between the old and the new laws. Trade union freedom is regulated under international conventions as well as Article 51 of the Constitution3 with the title of “social and economic rights and duties”.
In this article, first of all, the extent of trade union activities and how it is secured shall be discussed. Afterwards, the reemployment lawsuits which are the most common causes of claims for trade union compensation and the burden of proof regarding trade union compensation, shall be analyzed within a general framework and within the framework of the significant amendments brought in terms of trade union compensation based on the decision of the Constitutional Court dated 22.10.20144. Thereafter, the legal characteristic of trade union compensation and its relation with other rights shall be examined. In our article, the trade union compensation which is an important legal sanction for securing the freedom of trade union shall be discussed with the focus of reemployment lawsuits.
II. TRADE UNION FREEDOM, TERMINATION DUE TO TRADE UNION AND ITS CONSEQUENCES
A. Union Activities and Securities
According to Article 25/3 of the STSK, “No employee shall be dismissed or discriminated against due to his membership or non-membership in a trade union, his participation in the activities of trade unions or employees’ organizations outside his working hours or during working hours with the employer’s permission.” Therefore, an employer cannot discriminate between employees due to trade union activities with regard to the termination of the employment agreements. The article in question is not applied only for the union members but also for all employees. Union activities involve activities that enable employees to exercise their trade union freedom such as joining a trade union, distributing announcements or making propaganda. However, it is also considered as a union activity for a non-member employee when he is involved in such activities such as being a part of a strike5. Thus, irrespective of the fact that they are union members or non-members, all employees shall benefit from this legal security.
According to the STSK, union membership is secured during recruitment, employment relation and termination of the employment relation. Membership to trade unions cannot be a determining factor during recruitment process as per Article 25/1 of the STSK. This is a mandatory rule, thereby a contradicting provision cannot be regulated in the service agreement. It is also a violation when the employer decides not to recruit the ones who chose to be members of a trade union other than the one he has chosen6. It is prohibited to make discrimination between the employees, who are already employed and whose employment relation is continuing, with respect to working conditions based on their trade union memberships as per the paragraph 2 of the mentioned article. Finally, the same security is also provided in terms of termination of the employment agreement and the employer’s termination of the employment agreement by depending on the employees’ trade union membership is prohibited as well. We would like explain below “termination of employment agreement due to trade union activities” and its consequences.
B. Termination Due To Trade Union Activities
It is a common procedure for an employer to terminate the employment agreements, prevent the employees from being trade union members or to prevent them from carrying out trade union activities. It is not possible to mention trade union freedom when the employees are acting with such an apprehension7. It should be re-emphasized that, termination due to trade union activities can come into question on the grounds of non-membership to a trade union as well. Consequently, termination due to trade union activities can be described as a termination due to reasons such as an employee’s membership or non- membership to trade unions or union activities that have been carried out. This can be called termination due to exercising of trade union rights8.
Employer’s obligation to treat every employee equally during termination of the employment agreements also emerges during the collective redundancies9. In case the employer discriminates between the employees based on their trade union memberships or non-memberships during the course of collective redundancy due to financial, technological, structural and suchlike reasons in terms of management, workplace or nature of the business, it shall be considered as termination of employment agreements due to trade union activities. Ultimately, each employee, whose employment agreement had been terminated due to trade union activities, can claim compensation.
C. Trade Union Compensation
As mentioned above, guarantee of trade union activities is clearly regulated under the STSK, and such assurance is provided to the employees. STSK prohibits employer to discriminate between employees due to trade union memberships and activities. At this point, trade union compensation, which provides such assurance to the employees, is a significant sanction in the event of discrimination during recruitment process or with respect to working conditions or in case of termination of the employment agreement due to a trade union activity. In other words, trade union compensation is a sanction against the violation of employees’ trade union freedom10. This compensation secures against infringements during pre-contract phase and the course of the agreement and the termination due to trade union activities11.
We would also like to point out that, during the period of old law no. 2821, an employee was not able to claim for trade union compensation if he/she has not been recruited due to trade union activities. Through the trade union security during pre-contract phase, which is regulated by the STSK, employees can claim trade union compensation when they are not recruited because of their trade union memberships or other trade union activities.
It is explicitly stated in Article 25/4 of the STSK that the amount of trade union compensation cannot be less than the employee’s annual salary12. In addition, the amount of trade union compensation shall be calculated based on the employee’s last gross salary. Due to the fact that it is not possible to award a compensation amount less than the amount stated under the mandatory provision of the law, the judge shall decide an appropriate amount on grounds of the concrete case and the employee’s length of service based on his/her discretionary power. Under the STSK, in the terminations due to trade union activities, although the sublimit for the trade union compensation is determined as at least the employees’ annual salary, the upper limit is not regulated. The undetermined upper limit is regulated through the precedents of the Court of Appeals. In the established decisions13 of the Court of Appeals, it is regulated that it would be equitable to determine the trade union compensation by taking into consideration the length of service regulated under the provision regarding the annual paid leave, and therefore, by analogy, the trade union compensation shall be the annual salary of the employee having length of service between 6 months to 5 years; 1 year and 1 months’ salary for the employee having length of service between 5 to 15 years; 1 year and 2 months’ salary for the employee having length of service more than 15 years.
There is not any specific provision under the law in terms of statute of limitations with regard to the trade union compensation. Since such claims have the characteristics of compensation, they are subject to ten year limitation period as stated under the general provisions14. Finally, legal interest rate should be charged to the amount of trade union compensation as from the date of initiation of the lawsuit15.
The amendments made in law through the cancellation decision of the Constitutional Court dated 22.10.2014 should be analyzed while discussing trade union compensation. This matter, which changed the legal situation of the employees who do not fall within the scope of employment security and the re-employment lawsuits, shall be discussed in detail below.
III. AMENDMENTS TO THE STSK AS A RESULT OF THE CANCELLATION DECISION OF THE CONSTITUTIONAL COURT
Numerous articles of the STSK had been submitted to the court on the grounds of unconstitutionality. In this chapter of our article, the amendments regarding the trade union compensation shall be examined within the related decision.
As mentioned above, the discrimination between the employees due to trade union activities is prohibited as per the first three paragraphs of Article 25 of the STSK, which regulates trade union securities. Furthermore, the fourth paragraph of Article 25 of the STSK regulates that trade union compensation shall be applied in case of infringement of trade union security.
Before the aforementioned cancellation decision of the Constitutional Court, fourth paragraph of Article 25 was regulated as follows: “If an employer acts against the provisions set out in the above paragraphs apart from the termination, he shall be liable to pay trade union compensation which shall not be less than the employee’s annual salary”. The expression “apart from the termination” has been removed by the cancellation decision of the Constitutional Court dated 22.10.2014. Before the cancellation decision, the provision was contradictory due to the fact that the discrimination between the employees during recruitment and during the employment period resulted in trade union compensation as a sanction while such compensation has not been regulated in case of termination due to trade union activities. Thus, it is judicious to remove the expression “apart from the termination” from the article in question. In conclusion, the clause which excludes the employer’s act of termination from employer’s liability to compensate has been removed16.
Furthermore, with respect to the trade union compensation, there has been a significant change regarding re-employment lawsuits and the employees who do not have employment security. Previously, Article 25/5 of the STSK had been regulated as “The employee, whose employment agreement has been terminated due to reasons related to trade union activities, shall have the right to apply to the court as per Articles 18, 20 and 21 of the Law no 4857”. It was argued that, only the employees having employment security were entitled to trade union compensation according to this previous provision and such provision was criticized in the doctrine on the grounds of unconstitutionality17. Cancellation decision of the Constitutional Court has removed the reference to Article 18 of Labor Law No. 485718 (“İK”), which regulates the legal requirements for employment security. Through the removal of the reference to Article 18 of the İK, the employees, whose employment agreements have been terminated due to trade union activities, have been given the right to file reemployment lawsuit as per Articles 20 and 21 of the İK, even though they do not meet the legal conditions for employment security. One of the conditions set forth under Article 18 of the İK is that the employee being subject to the İK. Due to the fact that this condition is not required after the cancellation decision of the Constitutional Court, the employees who are subject to other laws shall also be entitled to file reemployment lawsuits in case of termination due to trade union activities19. In brief, after the cancellation decision, the employees who do not have employment security can also claim for trade union compensation and can file reemployment lawsuits only in case of termination of their employment agreements due to trade union activities. The decision in question clearly states that “As a result of the cancellation of the expression 18, which was set forth under Article 25/5 of Law No. 6356 titled the security of trade union freedom, in case of termination of the employment agreements of all employees working in any kind of workplace due to trade union activities, the employees can file reemployment lawsuits according to Articles 20 and 21 of Law no. 4857 and shall be entitled to trade union compensation without the requirement of meeting the following conditions which are regulated under Article 18 of Law No. 4857 and required in order to file a reemployment lawsuit; workplaces to employ at least 30 employees and employees to have at least 6 months length of service20.”
Hence, the Constitutional Court removed the related expressions from Articles 25/4 and 25/5 of the STSK on the grounds that the employee not being entitled to claim trade union compensation in case of termination due to trade union activities and only being entitled to file a reemployment lawsuit when subject to Article 18 of the İK, violate the trade union freedom and basic principles of democratic society21.
IV. TRADE UNION COMPENSATION IN REEMPLOYMENT LAWSUITS
In practice, reemployment lawsuits are one of the most common causes of claim for trade union compensation. According to the labor legislation, termination of the employment agreement for an indefinite period by the employer without a valid reason does not directly result in invalidity of the termination. Thus, the employee should file a lawsuit or refer to arbitrator within one month and apply to the employer for reemployment within ten business days beginning from the date of receipt of the decision regarding the invalidity of the termination (İK 18-21)22. In principle, employees who have employment security are entitled to file reemployment lawsuits. However, as it is explained above, after the cancellation decision of the Constitutional Court, in the events of termination due to trade union activities, all employees (even the ones who do not have employment security) are entitled to file reemployment lawsuits.
As mentioned above, the employees can file lawsuit in case of termination of employment agreement due to trade union activities, as per Articles 20 and 21 of the İK. In addition to that, according to Article 25/5 of the STSK; “In case it has been determined that the employment agreement has been terminated due to trade union activities, trade union compensation shall be ordered independent from the requirement of application of the employee and the employer’s granting or refusing him to restart work in accordance with Article 21 of the Law No. 4857.” In the light of this provision and Article 20 of the İK regulating the reemployment lawsuit, the employee may file reemployment lawsuit, claiming that the termination was due to trade union activities within one month following the termination date of the employment agreement23.
On the other hand, Article 25/5 also regulates that “However, in case the employee is not allowed to start work, the compensation specified under the first paragraph of Article 21 of Law No. 4857 shall not be awarded”. The mentioned compensation under Article 21/1 of the İK is the employment security compensation which is awarded as a result of unjust or invalid termination of employment agreements. As a result of this explicit provision, the trade union compensation and the employment security compensation cannot be awarded at the same time24. Besides, as it is explicitly stated under the mentioned article, since the trade union compensation can be awarded independently from the employee’s reemployment in the lawsuits regarding such compensation, the decision regarding the compensation has an executive nature25.
Another significant point regarding this subject which needs to be drawn to attention is that, from now on, an employee can directly file a lawsuit for trade union compensation without filing a reemployment lawsuit. It is stated in Article 25/5 of the STSK that, the employee, who has not filed a lawsuit pursuant to the provisions of the İK, shall not be prevented from the claim for trade union compensation. During the old law period, the employees having employment security should primarily file a reemployment lawsuit; meaning that they could not directly claim for trade union compensation. This provision, which is regulated differently from the old law, is accepted as a justifiable provision by the doctrine26.
Burden of proof with regard to the trade union compensation is significant both in reemployment lawsuits and the trade union compensation lawsuits which can be directly filed. Therefore, this subject shall be analyzed below.
A. Burden of Proof in Trade Union Compensation
First of all, even though burden of proof is still on the employee in cases of discrimination due to trade union activities apart from termination, it can be stated that the burden of proof has been simplified with regard to this subject27. Hence, in the mentioned article, it has been explicitly stated that if the employee demonstrates the existence of a situation indicating that discrimination has been made due to a trade union activity, the employer shall be obliged to prove the reasons of his conduct.
Article 25/6 the STSK regulates the burden of proof in lawsuits that has been filed due to termination regarding trade union activities. According to the mentioned article; “In lawsuits claiming that the employment agreement has been terminated due to trade union activities, the burden of proof regarding the reason for termination is on the employer. An employee who claims that termination is not based on the reason the employer has claimed, the employee shall bear the burden of proof to prove that the reason for termination has been trade union activities.” As can be seen, the employer’s burden of proof is only demonstrating the reason for termination.
According to certain authors, burden of proof being on the employee is one of the most significant obstacles for gaining the right to the trade union compensation. The employee’s efforts to prove the pressure against the trade union activities by witness statements is not found sufficient by the Court of Appeals28. Also, generally, the Court of Appeals does not consider the situations as sufficient, other than the cases which can be accepted as presumption of fact, unless they are very clear and explicit29.
In practice, employers claim that the employment agreement has been terminated with a valid or justifiable cause even though they have terminated it due to trade union activities. Briefly, the employers hide their actual intentions in order to avoid the legal sanctions. Employees who cannot prove this fact cannot claim trade union compensation and therefore they are deprived of their rights. In order to prevent such situation, the employer’s real intention behind the termination is demonstrated with the presumption of facts which have been developed by the precedents of the Court of Appeals. Court of Appeals has created a system based on the precedents regarding this matter and developed a theory called “presumption of termination due to trade union activities” however it does not use this particular name30 According to Bayram, “presumption of termination due to trade union activities is a presumption of fact indigenous to the labor law, which serves the purpose of forming an opinion about justifiability of the employee’s and the employer’s claim, by the judge, and is a standard of judgement based on business life, trade union life, collective bargaining, employment relations, experiences of labor judgement31.
According to precedents of the Court of Appeals, some issues should be meticulously examined to determine the real reason for termination. For instance, it should be thoroughly investigated whether there are any employees who were not trade union members and whose employment agreements have also been terminated, number of total employees who hold a trade union membership and work in the workplace of the defendant employer, dates of memberships, whether there has been recruitment in the places of the employees, that hold trade union memberships and whose employment agreements have been terminated or whether the authorization procedure had begun32. In this way, it can be clarified whether the termination is based on trade union activities, without any doubts.
In addition, the termination of the employment agreements during the application to the trade union for the collective bargaining agreements and the termination of employment agreements upon the unionization of the employees in the workplace are accepted as presumptions of termination of employment agreements due to trade union activities by the Court of Appeals33. We would like to indicate once again that the characteristics of the concrete case should be taken into account for each circumstance.
V. LEGAL CHARACTERISTICS OF TRADE UNION COMPENSATION AND ITS RELATION WITH OTHER RIGHTS
As explained above, a compensation which cannot be less than the employee’s annual salary shall be awarded as per Article 25 of the STSK. As is seen, trade union compensation is price and lump sum compensation, for which a sublimit is determined under the law. In this context, the employee does not have to prove his/her damage in order to claim trade union compensation. Although the trade union compensation is called as “compensation” under the law, technically, it does not have the characteristics of compensation. It can be said that the main objective of the trade union compensation is to protect the employees’ trade union freedom rather than compensating the damage suffered by the employee. In this sense, according to the doctrine, the trade union compensation is accepted as a “civil penalty” imposed to the employer34. Besides, due to the fact that the trade union compensation does not have the characteristics of non-pecuniary damage, it could be transferred and inherited35.
The last paragraph of Article 25 of the STSK explicitly states that all rights of the employee under the labor law and other laws are reserved. According to this provision, if the related conditions are met, employees shall be able to claim for their severance and notice payments together with the trade union compensation. As mentioned previously while examining the reemployment lawsuit, due to the explicit provision of the STSK, the trade union compensation cannot be awarded together with the employment security compensation.
Moreover, another question that comes into mind is as to whether it is possible to claim trade union compensation together with compensation for bad faith damages. Although there is no prohibitive provision under the relevant legislation to such effect, compensation for bad faith damages cannot be claimed together with trade union compensation, since the trade union compensation is a specific type of compensation for bad faith damages. Consequently, the employees who do not have employment security cannot claim both of these compensation types at the same time. Due to the fact that the compensation for bad faith damages is not applied to the employees having employment security, there should not be a similar discussion with regard to such employees. Finally, in accordance with the expression in Article 5/6 of the İK stating that “Provisions of Article 31 of Law on Trade Unions No. 2821 are reserved.”, trade union compensation and compensation for discrimination cannot be claimed at the same time37.
VI. CONCLUSION
Trade union compensation, which we have analyzed within the context of the STSK, is a sanction for violation of employee’s trade union freedom.
As emphasized in our article, some significant amendments have been made to the law based on the related cancellation decision38 of the Constitutional Court. In the current legal status, all employees, whether they have employment security or not, can file reemployment lawsuit in case of termination due to trade union activities. Within the scope of our article, the points regarding the burden of proof, which may be an obstacle in the course of claiming trade union compensation, are also examined. It should be emphasized that the presumption of termination due to trade union activities, which has been developed with the precedents of the Court of Appeals, is very important in terms of easing the burden of proof of the employees.
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FOOTNOTE
1 Law on Trade Unions No. 2821; Official Gazette (“OG”) dated 24.07.1963, numbered 11462.
2 Law on Trade Unions and Collective Bargaining Agreements No. 6356; RG dated 07.11.2012, numbered 28460.
3 Constitution of 1982; RG dated 09.11.1982, numbered 17863.
4 Constitutional Court T. 22.10.2014, E. 2013/1, K. 2014/161; RG dated 11.11.2015, numbered 29529.
5 Fevzi Demir, Sendika Üyeliği ve Sendikal Faaliyete Katılma Güvencesinin Uygulama Kritiği, 269 (Erişim: 25.11.2016) http://www.kamu-is.org.tr/pdf/OGC11.pdf.
6 Ercan Akyiğit, Toplu İş Hukuku El Kitabı (Toplu İş Hukuku), First Edition, Ankara 2016, p. 384. 7 Turhan Esener, Yeliz Bozkurt Gümrükçüoğlu, Sendika Hukuku, İstanbul 2014, p. 175.
8 Şükriye Esra Baskan, 6356 Sayılı Kanun Çerçevesinde İş Sözleşmesinin Sendikal Nedenle Feshi, Ankara 2013, p. 80.
9 Berna Öztürk, “Sendikal Tazminat”, Ankara Barosu Dergisi, I.2013/4, 2013, p. 95, Haluk Hadi Sümer, İş Hukuku, 21st Edition, Ankara 2015, p. 214.
10 Durmuş Özcan, İş Kanunları Şerhi, 1st Edition, Ankara 2014, p. 1223.
11 Ercan Akyiğit, Açıklamalı ve İçtihatlı Türk İş Hukukunda İş Güvencesi (İşe İade), Ankara 2007, p. 387.
12 Hamdi Mollamahmutoğlu, Muhittin Astarlı, Ulaş Baysal, İş Hukuku, 6th Edition, Ankara 2014, p. 950.
13 7th Civil Chamber of the Court of Appeals T. 15.11.2016, E. 2016/15500, K. 2016/19467.
14 9th Civil Chamber of the Court of Appeals T. 23.3.2016, E.2014/33473, K.2016/7039.
15 Öztürk, p. 115.
16 Nizamettin Aktay, Toplu İş Hukuku, Ankara 2015, p. 61.
17 Metin Kutal,”Sendikalar ve Toplu İş Sözleşmesi Yasası’nın Kimi Hükümlerinin İptali İstemi İle Anayasa Mahkemesine Açılan Davaya İlişkin Notlar”, Çalışma ve Toplum Dergisi, I. 44, 2015, p. 20.
18 Labor Law No. 4857, RG dated 10.06.2003 and numbered 25134.
19 Can Tuncay/ Burcu Savaş Kutsal, Toplu İş Hukuku, Fifth Edition, İstanbul 2016, p. 111.
20 Sarper Süzek, İş Hukuku, 12th Edition, İstanbul 2016, p. 684.
21 Sayım Yorgun, “Anayasa Mahkemesinin 6356 Sayılı Yasaya İlişkin Kararının Sendikal Özgürlükler Boyutuyla Değerlendirilmesi”, Çalışma ve Toplum Dergisi, I.50, 2016, p. 1190.
22 Osman Çankaya, Cevdet İlhan Günay, Seracettin Göktaş, Türk İş Hukukunda İşe İade Davaları, p. 219.
23 Süzek, İş Hukuku, p. 683.
24 Tuncay/ Savaş Kutsal, p. 111.
25 Süzek, İş Hukuku, p. 686.
26 Akyiğit, Toplu İş Hukuku, p. 396-398.
27 Ali Bulut, Türk İş Hukukunda Sendikalar Güvenceler, Ankara 2016, p. 274.
28 “The examination as to whether or not the termination is based on trade union activities is not sufficient. It is seen that the court has only written to the trade union; the witnesses were heard and no other issue was researched.” 7th Civil Chamber of the Court of Appeals T. 21.09.2016, E. 2015/41417, K. 2016/14529.
29 Murat Özveri, Bireysel Sendika Özgürlüğünün Korunması: Sendika Tazminat ve Yargı Kararları, p.1538.
30 Fuat Bayram, Sendikal Nedenle Fesih Karinesi, Legal İş Hukuku ve Sosyal Güvenlik Hukuku Dergisi, Sayı:12, 2006, p. 1224.
31 Fuat Bayram, s. 1228.
32 9th Civil Chamber of the Court of Appeals, T. 14.01.2015, E. 2014/30201, K. 2015/498.
33 For further information; Fuat Bayram, p. 1228,1229.
34 Sarper Süzek, Fesih Hakkının Kötüye Kullanılması, Ankara 1976, p. 163, Baskan, p. 168, Doğan, p. 375.
35 Baskan, p. 168.
36 Süzek, İş Hukuku, p. 687.
37 Süzek, İş Hukuku, p. 688.
38 Constitutional Court, T. 22.10.2014, E. 2013/1, K. 2014/161. RG dated 11.11.2015, numbered 29529.
