Judicial decisions in Turkey no longer favour workers

The labour courts and the Court of Cassation have been the staunchest ally of Turkish labourers. Both courts, by jurisprudence, used to enforce decisions favouring workers.

The labour courts that protected employees' rights and set out employers' obligations and responsibilities helped provide equal opportunity and pay, physical and mental well-being and assured the safety of the employees. These specialty courts granted workers their unpaid dues, such as unpaid salary, annual leave and overtime pay, and severance payments. However, there has been a significant change in legal jurisprudence in labour courts in recent years. Most of the courts' decisions now do not favour employees.

One of the most important reasons for this radical change is the abolition of the 7th Chamber of the Court of Cassation. The Turkish government decided in 2016 to dissolve the chamber, which historically re-interpreted the law in employees' favour and signed many labour friendly regulations and measures.

We can see the change in policy by merely examining the most recent decisions of the Court of Cassation. A recently published decision of the court, published in the Official Gazette on July 24, 2018, ruled for workers who sign a collective bargaining agreement to lose their previously negotiated benefits such as salary, sick leave, overtime and retirement.

Bahattin Kaçar, an electrical technician, joined the union about two months after starting his employment. Once he joined the union, his salary, 36,10 lira per day decreased to the union-negotiated 28,80 lira. The claimant went to court for compensation. The local court agreed with Kaçar and ordered the employer to compensate him. But the Court of Cassation overturned the local court's decision.

The Court of Cassation, in its decision, said; "Since the plaintiff joined the trade union and stated that he wants to benefit from the collective labour agreement, he must accept the lower union-negotiated salary and is not entitled to the non-union workers' benefits."

Similarly, in another recent decision, the Court of Cassations ruled against workers who wanted to benefit from collective bargaining agreements starting from the contract date. State Hydraulic Works (DSİ) employees who signed the collective bargaining agreement after the contract date of March 1, 2015, were compensated from the start of the contract date. Later the business union appealed this decision, and the Court decided in favour of the employer. As a result, workers who signed the collective bargaining agreement six months after the date of the deal were not compensated for the first six months of that year. This decision of the court set a legal precedent.

Some of the court's decisions lead to a significant deterioration of employee rights. Another example is the Court of Cassations', June 13, 2017, dated decision. The court ruled that workers of municipal corporations should not be considered public workers, overturning its earlier ruling.

The decision to exclude employees of municipal corporations from public workers' benefits had significant consequences. About 400,000 subcontracted employees who worked for these corporations lost their bonuses, equivalent to two month’s salary per year.

The employers, on the other hand, are pleased with this change of direction. The president of the Union of Chambers and Commodity Exchanges of Turkey (TOBB), Rıfat Hisarcıklıoğlu said: "another area where we have had problems was the judicial system. Especially in the cases in the labour courts. The employees won labour cases almost 99 percent of the time. To change this, we negotiated for a mandatory mediation system with the government. Now arbitration between the workers and the employers can be resolved within weeks."

In practice, the mediation system effectively blocks the workers from going to the labour court. The mediation system that went into effect at the beginning of this year forces workers to compromise with employers in case of a dispute. Employers can only go to the labour court if the parties fail to reach a compromise. This mechanism, in most cases, works against the workers.

As a result of the new legislation in labour laws, Turkish employees have lost many of their rights. Considering the low rate of unionisation in Turkey, judicial decisions are the essential protection for most Turkish workers. However, if the Court of Cassation's recent rulings are a trend, the working-class in Turkey could suffer more significant losses in the future and find itself even more unprotected.

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