Individual Application

The Facts

The applicant, Türkiye Revolutionist Land, Air, Railway Workers' Union (“Transport-Business/Union”), requested a determination of competence from the Ministry of Labour and Social Security, asserting that it had attained the requisite number to negotiate a collective labour agreement (CLA). The Ministry ruled negatively on this request (negative determination of competence), stating that the Union did not meet the necessary threshold in terms of number in its sector and thus, communicated this decision to the Union. The applicant challenged the negative ruling for competence before the İstanbul Labour Court (“the Labour Court”). Thereupon, pursuant to Article 43 of the Law no. 6356 on Unions and Collective Labour Agreements, the drafting of collective labour agreements was halted until the conclusion of the appeal case against the negative determination of competence.

The Labour Court dismissed the case as well as the subsequent appeal on its merits. Upon further appeal, the Court of Cassation noted that the Union had contested the latest published statistics related to the sectoral threshold, which had been reviewed before another labour court, thereby the matter should be deemed as a preliminary issue for the present case. As a result, the Court of Cassation quashed the decision. While the appeal against the quashing decision was pending, the applicant Union filed an individual application with the Constitutional Court. In the meantime, the court of first-instance accepted the case. The court assessed that the statistics which were not subject to objection and became final upon the suspension of the negative determination of competence with interim injunction by the Ministry of Labour and Social Security (“the Ministry”) should be applied. Thus, it determined that the Union was competent. Following an appeal by the Ministry, the Court of Cassation reiterated its previous decision and quashed the impugned decision once again. As of the review date, the proceedings have been still pending.

The Applicant’s Allegations

The applicant maintained that his right to trade-union freedom had been violated due to the failure to conclude the appeal case against the negative determination of competence within a reasonable time.

The Court’s Assessment

In its decision in the case of Türkiye Gıda ve Şeker Sanayi İşçileri Sendikası ve Türkiye Petrol, Kimya ve Lastik Sanayii İşçileri Sendikası (no. 2016/13531, 15 December 2020), the Constitutional Court assessed the alleged violations of the right to trade-union freedom due to the failure to conclude the appeal case against the negative determination of competence within a reasonable time. It also examined whether the state had fulfilled its positive obligations, given the statutory periods stipulated in the legislation for the expeditious resolution of cases. In this decision, the Court found that the legal uncertainty concerning the applicants’ unionisation in the claimant workplace, caused by the prolonged proceedings, could not be remedied due to the failure to conduct an expeditious judicial process. Therefore, it assessed that the judicial authorities’ failure to resolve the matter promptly had deprived the applicants and other employees of the opportunity to engage in union activities and access union rights granted by a collective labour agreement (CLA) during the ongoing proceedings. Consequently, the Court established that the applicant’s right to trade-union freedom had been violated, therefore awarding compensation to the applicants accordingly. In these applications, the Court also underlined that the statutory periods envisaged for appeals and proceedings in Law no. 6356 were designated to ensure the effective and timely exercise of the said right.

Furthermore, the Court of Cassation underscored that contrary to the former legal framework, the legislator had abolished the distinction between appeals against negative and positive determinations of competence. Accordingly, the legislator aimed to ensure the protection of the unions that received a negative determination decision and to accurately identify the competent union prior to negotiating a collective labour agreement (CLA). Nevertheless, this legislative purpose can only be realized if the judiciary conducts expeditious and effective assessments of disputes before them within the prescribed statutory periods.

In the present case, it has been established that since 2016 (around eight years) when the request for determination of competence was made, the applicant has been deprived of certain rights such as representing workers, acting as a liaison between workers and employers, persuading the employer when necessary, and strengthening social and financial resources by increasing the number of workers. It has also been observed that the applicant could not benefit from the union rights during the ongoing proceedings and in this context the authorities failed to act with due diligence and expedition in safeguarding these rights. In this context, the Court has considered that the proceedings were not concluded in a reasonable period. Thus, the legal uncertainty concerning unionization in the applicant's workplace could not be remedied due to the judicial authorities’ failure to conduct expeditious proceedings regarding the determination of competence.

In the light of aforementioned assessments, the Court has concluded that the proceedings has been pending despite the statutory requirement for its expedient conclusion; and that this stance of the judicial authorities deprived the applicant and other employees in the workplaces of the opportunity to engage in union activities within the scope of CLA and of the union rights afforded by an agreement throughout the proceedings.

Additionally, the Court has recognized that the failure to resolve such cases within a reasonable time has become systematic, thereby constituting a structural problem. Addressing this systematic issue, the Constitutional Court has assessed that systematic reforms must be introduced to prevent future violations arising from prolonged adjudication of appeals against the determination of competence before the courts of instance.

Consequently, the Court has found a violation of the right to trade-union freedom.