February 18

ASSURANCE OF INDIVIDUAL UNION FREEDOM

ASSURANCE OF INDIVIDUAL UNION FREEDOM

 

          Although the concept of union is a concept that has gained visibility with the industrial revolution, there are worker and employer solidarities arising from sharing the same social group before the establishment of this concept. In Turkey in the past business life is peace, order and justice; Tradesmen's guilds, ahi-order organization, tradesmen gedis were tried to be provided. However, these institutions were not sufficient in time and the concept of unions was introduced, and they were defined in our law in accordance with the abolished Trade Unions Law No. 2821 and then the Law No. 6356 on Trade Unions and Collective Bargaining Agreement (STISK) art.2 / 1-ğ.

 

              In the light of the definition in STİSK art.2 / 1-ğ and classical union theory, it is possible to say that the main purpose of the existence of unions is to ensure the protection of common economic and social rights while establishing and conducting business relations. However, in order for the unions to achieve this purpose, they should not be under any pressure other than the demands of their members within the framework of the law. For this reason, the principle of trade union freedom will be discussed below.

             Besides the existence of the concept of freedom of trade union freedom, its sustainability will only be possible with the sanctions to be imposed on those who violate freedom due to the protection of this freedom. There are regulations on the assurance of trade union freedom at both international and national levels. However, in practice, a covert intervention to trade union freedom is carried out in order not to be exposed to these sanctions, especially by employers. In connection with this, especially the membership of workers to unions supported by employers is ensured with veiled threats, and workers are forced to terminate their relations with unions that do not comply with the interests of the employers. The apparently existing freedom of individual trade unions and the assurance of freedom will be examined below, and the main issue to be discussed is the activities of the employer that caused these regulations to be fruitless in practice.

 

      FREEDOM OF UNION

 

        In order for unions, one of the important components of working life, to protect the interests of their members and to create a fair working environment, trade union freedom must exist. It is essential for trade unions to engage in a political activity, to survive and achieve their goals. Due to the political nature of union activities, the perspective towards trade union freedom has changed in parallel with the change in the country's politics over the years. In pluralistic democracies with a long history of democracy, trade unions are more politically effective. [1] Democracy experience yet advancing to the workers in Turkey, contemporary thought regarding the amendment to the trade union freedom in the 2001 Constitution has tried to adoption and amendment relates to multi-union membership in 2010, with the regulations in Article 51, it has been finalized. However, considering the past, it seems possible that political and economic inconsistencies may lead to other changes in the future.

 

              In different economic and social policy systems, trade union freedom has been discussed from different angles. When examined in a general sense, the perspective towards the union in four different state orders can be summarized: the fascist union understanding, the socialist-Marxist union understanding, the liberal union understanding, and the libertarian union understanding. [2] The Republic of Turkey, in accordance with Article 2 of the Constitution is a social and democratic state of law. For this reason, it should have a libertarian perspective, which is the most appropriate for a democratic state of law among the union understanding mentioned. With the aim of being a social democratic state, the citizen - within the scope we have examined - should be presented with the right to be represented, hence the right to be heard and live in a way that suits human labor and dignity. As the Supreme Court often reiterates, union freedom is a classic and fundamental social right. [3] Union freedom, the Constitution (AY) is arranged m.51, concrete steps towards becoming a welfare state which is one of the fundamental values ??of the Republic of Turkey have been taken with this arrangement.

                According to AY Art.51, employees and employers have the right to establish unions and higher organizations, to become a member of the union freely and to quit membership freely without obtaining prior permission. As regulated in the 1st paragraph of Article 51 of the Constitution, trade union freedom is provided both individually and collectively.

 

A. Freedom of Individual Union

 

                        Individual union freedom is the freedom in the relations that individuals can establish with the union. The concept of relationship to be established with the union has been used in a broad sense, and the existing relationship with the union or not establishing a relationship at all should be considered within this scope. Individual trade union freedom can be narrowly divided into two: positive and negative union freedom. Positive trade union freedom is the individual's freedom to form and join a union. Negative union freedom is likewise the freedom of a person's will to terminate or not be a member of any union. Article 51 of the Constitution and Article 17 of STİSK have been regulated by encompassing individual trade union freedom in both positive and negative forms. When considered as a whole; The individual is free to use his / her right to establish a trade union and to become a member of the established union in order to represent the economic and social situation arising from the employment relationship. As stated above, in order for the union to achieve its purpose, the individual must be able to freely carry out his activities. If the will of the person is subjected to deceit, threat or deception in any way, it will not be possible to talk about this freedom. A person should be able to act in a way that he believes to have the best of his own existence and rights without being under any pressure, only in this way peace and equity can be achieved in working life.

Collective Freedom of Unions

                     Ensuring the freedom of trade unions is possible primarily by ensuring individual union freedom. However, since the representation of the worker in the working life and the protection of his interests can be achieved when the union is an element of pressure, collective union freedom is indispensable for this freedom. Collective union freedom; As a legal person, the union is free to realize its purpose and to choose the methods it will use in achieving this purpose. With this dimension, collective union freedom is not explicitly governed by the Turkish positive legal system, but is protected implicitly as it can be seen in doctrine and jurisprudence. As the Supreme Court repeatedly reiterates in its decisions on trade union freedom: Individual trade union freedom is the basis of collective trade union freedom and these two form a whole. [4] In this context, the establishment of unions is free and they have the freedom to collect members and distribute leaflets in order to achieve the intended interests in connection with this. However, these freedoms are not unlimited. In the continuation of Article 51, reasons for restriction of the right to establish a trade union are listed and the provisions of the law regarding its establishment are referred. If these restrictions are not fulfilled by law, AY m.51 will be violated, while AY art.13 will be violated. Therefore, restrictions on this right should be regulated by law. Apart from the violations of restrictions, there are also regulations and sanctions regarding the violation of the freedom of the union, below the assurance of the freedom of the trade union will be examined.

II. ASSURANCE OF UNION FREEDOM

            Workers' union rights, which are an important element of the economic order, are also a part of the political equation. Therefore, as the policy followed by the lawmaker changes, the regulations on trade union rights can take different forms. With the 51st article of the Constitution, these rights are also protected against the law maker. However, in practice; The violation of the employer to the union rights of the worker is more common because the employer is a profit-seeking person. Employer often due to union membership; It sabotages the employee's use of his union rights through various means of intimidation such as not hiring the worker, terminating the current employment contract, changing the location of the worker during the implementation of the employment contract, and the nature of the job. Due to these violations in practice, the abolished Trade Unions Law No. 2821 guarantees union discrimination and therefore the use of union rights. Since the Law No. 2821 could not be a solution to the developments over time, the Unions and Collective Labor Law No. 6356 entered into force in 2012.

 

             With the article 25 of Law No. 6356 titled "assurance of union freedom", the use of trade union rights is guaranteed and union discrimination is prohibited. In addition, in the Turkish Penal Code (TCK) Art.118, the prevention of the use of the union right is sanctioned. In addition to all these; Turkey is a signatory to the European Convention on Human Rights that (ECHR), the European Social Charter and the International Labor Organization (ILO) Convention No. 87 on trade union rights are secured in the international sense. The following will examine the assurance of trade union freedom in the light of national and international regulations.

 

 A. Freedom of Individual Union in the Light of National Regulation

 

 1. Individual Union Freedom in Recruitment and Employment Relationship Process

                           The business relationship is defined as "the relationship established between the employee and the employer" in Article 2 of Labor Law No. 4857. [5] Although both parties have rights and obligations in the business relationship, these rights and obligations are not in an absolute balance. The employer is in a relatively advantageous position in the business relationship. Based on the advantages brought by the employer position, he wants to work with workers that are suitable for their interests. The employer tends to refrain from establishing a business relationship with workers who are union members and therefore with certain additional rights, to treat the unionized worker differently during the continuity of the employment relationship or to work with union members who are qualified for their interests. However, this situation causes the worker, who is currently in a disadvantaged position, not to obtain his rights and become more disadvantaged.

               Whether the employee is a member of any or a certain union in the period before the establishment of a business relationship is an important factor in the employer's preference. In the first paragraph of Article 31 of the annulled Law No. 2821, it has been stipulated that unions cannot be discriminated against in recruitment. Although the right to compensation as a result of trade union discrimination in recruitment is not explicitly stipulated in the Abrogated Trade Unions Law, in some of its decisions, the Court of Cassation ruled compensation in case of union-based discrimination in recruitment. [6] In the period of 6356 numbered Law, the protection of union freedom is protected in the same way in Article 25/1, unlike the abrogated law, compensation is also stipulated as a result of violation of the freedom of union in recruitment pursuant to Article 25/4 of STİSK. [7] In addition to these, it is possible to say that if provisions are added to the employment contract stating that the worker will or will not be a member of a certain union or not engage in trade union activities, these will be invalid under STİSK Art.25 / 1. [8]

After the recruitment process, the intervention against the union rights of the employee has the potential to continue during the employment relationship. The good opportunities provided by the employer to non-unionized workers compared to unionized workers or to expose the unionized worker to more severe working conditions compared to the union will encourage workers not to join the union. This distinction will hamper union security. [9] For this reason, the lawmaker has protected the union rights of the worker during the business relationship with the paragraphs 2 and 3 of article 25 of the NGO. According to the provision, protection is not only for positive and negative union freedom, but also protects the employee's freedom to choose the union he wants, in other words, the freedom to choose a union. In this way, the worker will be able to get rid of the pressure of the employer to choose a union close to him and suitable for his interests. In practice, unions called "yellow unions", which are often considered close to the employer, are established. [10] This union member worker is privileged in recruitment, and changes are made regarding the working conditions of workers who do not join the union supported by the employer during the employment relationship. The worker, who is at a relatively disadvantaged position in the business relationship, is obliged to submit to such policies of mobbing, which constitutes a violation of trade union freedom in accordance with AY art.51 and STİSK art.25. In the abrogated Law No. 2821, the issues that may change these working conditions are counted as exemplary, but the concept of "working conditions" is used as a more inclusive expression in the STISK No. 6356. [11] According to the NGO, the employer cannot change the working conditions of the employee due to union reasons. In other words, the working conditions of workers cannot be determined according to whether they are a member of a certain union or not. In practice and generally, in the decisions of the Supreme Court, the only way to be applied in case of violation of the freedom of trade union is shown as the act of seeking justice. It has been stated that the Supreme Court has stated that various remedies such as collective action are possible in case of violation of the freedom to choose a union. In the event of being forced to join a certain union or violating the right to choose a union, the Supreme Court found it legitimate for workers to take collective action. [13] As it can be understood from the decision of the Court of Cassation, it can be said that the worker supports the activities of seeking rights that are different from the lawsuit during the intervention regarding the freedom of choice.                     

2. Individual Union Freedom in the Dismissal Process

                                 As defined in the article 2 of the STİSK, unions have the aim of protecting the economic and social interests of their members, for this purpose union members can have some additional rights. The most important and most comprehensive of the rights provided by the union is to be a party to the labor relationship with the collective labor agreement. In order for a union to be a party to a collective bargaining agreement on behalf of its members, it must meet the conditions of authority in article 41 of the STİSK. When the relevant provision is examined; In order for the union to have the authority to be a party to the collective bargaining agreement, a certain number of members must be present at that workplace. If this ratio cannot be achieved, the union will not be a party to the collective agreement, therefore the members will not be able to benefit from the benefits of this collective agreement. The employer often tends to avoid the rights of the workers arising from the union as much as possible on the grounds that it creates a financial burden for him, and since he has to legally give the rights of the worker who is a union member or whose union has the authority to conclude collective bargaining, he cannot fulfill these obligations, which he considers as a burden, by dismissing the worker who is a member of the union. they try to avoid. In other words, the employer gets rid of the obligation of fulfilling the rights provided by the union to the worker by terminating the unionized worker's contract. The lawmaker envisaged this situation, and the NGO banned dismissal on trade union grounds with Article 25/2 and Article 25/3. The purpose of this prohibition is to protect the freedom of union, as well as the collective bargaining agreement, the right to strike and the freedom to work. Termination may result from membership of a union or not being a member of a certain union. It is not necessary to be a union member in order to benefit from union security. [15]

In addition to the prohibition of termination due to trade union reasons in the Law No. 6356, it is stipulated to pay compensation for not less than one year in accordance with Article 25/4 in case of violation of this prohibition. The regulation on the compensation sanction to be applied in case of violation of the freedom of the union did not include termination due to union reasons before 2014. Employee whose employment contract is terminated due to union reasons, in accordance with the STİSK art.25 / 5, 18,20,21 of Labor Law numbered 4857. He could demand compensation according to the reemployment provisions in the article. In this form of regulation, it was criticized on the grounds that only the employees under job security could benefit from the compensation sanction for the termination of the union due to the reference to Article 18 of the Labor Law and the rights of the workers who are not covered by the job security were violated in the AY art.51. [16] To the Constitutional Court by some TBMM deputies; repealed the 2821 Trade Unions Act during job security entering the trade union freedoms of working workers within the force subsequently whereas full protection and more equitable expected to be 6356 in Law No. narrowing the scope of protection of these workers and AY m.51 except for the violation of international documents and conventions to which Turkey is a signatory The cancellation of the relevant parts of the provision was requested. Following the annulment application filed on the grounds of violation of the Constitution, the phrase “except termination” and the reference to Article 18 in the relevant provision were annulled by the Constitutional Court (AYM) in 2014. [17] In the aforementioned decision, the Constitutional Court stated that the lack of comprehensive protection of union freedom of workers who do not work within the scope of job security is incompatible with the principle of equality in the AY m.10, except AY m.51.

                             Before the AYM removed the "18" attribution in the article 25/5 of the STİSK, workers working under job security were provided with a versatile protection. Because job security is a protection that obliges the employee's contract not to be terminated arbitrarily and to be based on a valid reason for dismissal. In accordance with Article 18 of Law No. 4857, when the contract of workers who work under the conditions listed in the article, in other words, workers who have job security want to be terminated, a valid reason must be based. Termination of the employment contract for a union reason does not constitute a valid and justified termination. [18]

                           Unlike the abolished Law No. 2821, in Law No. 6356, the ways that the worker within the scope of job security can apply for the termination of the union are stipulated as optional. [19] According to Article 25/5, the employee who works under job security can claim his / her right to trade union freedom, based on the provisions on reinstatement for termination due to invalid reasons in the Labor Law, or the compensation provision in Article 25/4 of the STİSK. Based on the provisions of the Labor Law, the employee will be entitled to trade union compensation regardless of the employee's application, reinstatement or non-return. As it can be deduced from this provision, the employee with job security may be entitled to trade union compensation even if he is employed as a result of his application. [20] As a result of the above-mentioned AYM annulment decision dated 2014, the worker will be able to benefit from the elective remedies, regardless of whether they are covered by job security. [21] As a result, after the annulment decision dated 2014, the freedom of union of the worker is fully protected pursuant to the article 25 of the STİSK, the workers who are insecure of the job can be compensated for the compensation arising from the termination due to union reasons, if they wish, the provisions of the 4857 numbered Law, Article 20, Article 25, Article 25/4 will be eligible in accordance with. However, if the employee is not employed according to the provisions in question, he / she will not be entitled to the job security compensation in the Labor Law Art.21 in addition to the union compensation. In other words, if the worker was dismissed due to union reasons and did not start work despite his application, he / she will only be entitled to trade union compensation under the article 25/4 of STİSK. Parallel to this, in its decisions, the Supreme Court uses the concepts of non-employment compensation and union compensation interchangeably in cases related to termination due to union reasons. [22]

                     Termination of the employment contract of every worker who is a member of the union is not considered as a termination due to a union reason. In order to examine whether the termination has occurred due to union reasons, the Supreme Court has stated that "the number of workers working and affiliated to the union, the date of their membership, whether there are any workers who are withdrawn from membership, whether there are any workers working at the workplace, whether the authorization procedure is operated in the same period, Some criteria such as whether collective bargaining agreements were concluded during periods, whether new workers were recruited and, if recruited, whether new workers were unionized, and if the employer made a termination method based on economic or technological reasons, this situation should be investigated in technical terms. [23] However, if these criteria are complied with, it will be understood that a termination is due to a trade union.

B. Assessment within the Scope of International Regulations on Individual Union Freedom

                   The Republic of Turkey is a party to international agreements such as the contemporary of other modern states. In accordance with Article 90/5 of the Constitution, international agreements duly put into effect have the force of law. In the continuation of the provision, it was stated that in the event of a conflict between the domestic laws and international agreements regarding fundamental rights and freedoms duly put into effect, the international agreement will be implemented.

                   Can be considered as the basis for trade union freedom, Turkey I leave that to the signatories are existing international declarations and agreements: Universal Declaration of Human Rights, the United Nations Economic, Social and Cultural Rights, the United Nations Civil and Political Rights, the European Human Rights Convention, the European Social Charter and International Labor Organization conventions. In this section, the European Convention on Human Rights, European Social Charter and International Labor Organization 87 numbered convention will examine the regulations on individual union freedom

1. European Convention on Human Rights

                      The European Convention for the Protection of Human Rights and Fundamental Freedoms (IHAS) is a Council of Europe convention that entered into force in 1953. Turkey agreement signed in 1950 and put into force in 1954. [24] In general, it is an agreement aiming to protect human rights and fundamental freedoms in an international context, it consists of the main contract and the protocols added in the following years. Regulations on social rights are provided by additional protocols and the European Social Charter. Although the freedom of individual union is a social right, it is protected under the title of "freedom of assembly and association" under the title of "freedom of assembly and association" in the original contract, together with the classical rights. This right can only be restricted for the reasons listed in the Contract Article 11/2. The freedom to establish trade unions is clearly regulated in the aforementioned article, and in the ECHR decision of 1975, it was stated in the 11th article of the Convention that the right to establish and be a member of a union was protected and that freedom of unions was a special view of the freedom of association. [25] In this context, the members of which are covered by Turkey on the grounds that the officer All-Haber-Sen result of his application to iham the union is the union establish the right of a democratic therefore restricted and where Turkey is a party the right to form trade unions in accordance with international agreements within the scope of public sector employees and private sector It was stated that employees could not be discriminated, it was found that the freedom of union was violated. [26]

 

                                As mentioned above; Turkey is a signatory to this agreement, so it is obliged to provide the trade union freedoms enshrined in the country m.11. In cases where the victim can not be achieved by Turkey of the freedom of trade unions shall have the right to individual application to the ECHR.

2. European Social Charter

                             Council of Europe Social rights protect the name ECHR complementary described as the European Social Charter by 1965 has come into force, Turkey is the European Social Charter in 1989, while in 2007 the Revised European putting reservations to certain provisions of the Social Charter has been a signatory. [27]

                              The ECHR decision, which was referred to earlier, on the right of civil servants to trade unions, generally refers to trade union freedom. Unlike the IHAS and ILO conventions, the European Social Charter clearly regulates the union rights of civil servants and does not discriminate between employees. [28] But retains the right to collective bargaining and Article 5 of the Charter protects the right of trade unions in Turkey has made a reservation to Article 6. The European Social Charter, which is considered as the complementary of the Council of Europe that protects the social rights not covered by the ECHR, is considered equivalent to the IHAS in terms of national jurisdiction due to this feature. [29] However, the states parties are not subject to the control mechanism for the provisions they make reservations. Additionally, the articles with reservations will not be effective in domestic law. [30] Article by Turkey Turkey's derogation development reports doğurmamaktadır.uluslarara effect in domestic law therefore been criticized this attitude, because it will be difficult to say that the comprehensive protection of social rights in Turkey with this figure.

3. International Labor Organization Convention No. 87

                      The Convention No. 87 on the Freedom of Association and the Protection of the Right to Organize dated 1948, prepared by the International Labor Organization, is one of the main sources on trade union freedom. Convention ratified by Turkey in 1993, then began working to adapt the internal law of the Convention.

                       In the abrogated Law No. 2821, the condition of being a Turkish citizen and literate in Turkish, not being convicted of certain crimes and not being deprived of public services were required among the conditions for establishing a union. This situation did not coincide with the principle of "non-discrimination in any way" in Article 2 of the Convention. [31] This situation was partially corrected in Law No. 6356, being a Turkish citizen, being literate in Turkish, not being deprived of public service, was removed from being a condition for establishing a union.

        Regarding membership to more than one union at the same time, the ban on not being a member of more than one union in the same sector at the same time was lifted in 2010 in the AY Art.51 / 4, but this prohibition is maintained in the Law No. 6356 as in the Trade Unions Law No. 2821. However, unlike other regulations, Law No. 6356 stipulates that workers working with different employers at the same time can be a member of more than one trade union with Article 17/3. In this way, the rules of domestic law, which are in conflict with the freedom of "everyone to be a member of the union they wish" regulated in the 2nd article of the Agreement, have been softened, but with the aforementioned regulation in the Law numbered 6356, Article 2 of the Agreement continues to be violated.

                      Article 52 of the Constitution was abolished in 1995, which violated the freedom of trade unanimously stipulated by the Convention on the issue that public servants cannot be members of the union, without any discrimination, and after the adoption of Convention No. 87, the Convention harmony has been achieved.

 

Statements on issues other than termination and reference to Article 18 of the Labor Law, which caused the aforementioned deficiency in STİSK Art.25 / 5, which was previously discussed within the scope of this review, which causes the freedom of trade union not to be provided indirectly to workers who do not work under job security. It was canceled, and with a regulation in line with the letter and spirit of the contract no.

However, despite the passage of time, the Convention and domestic law rules still do not exactly match each other. For example, the freedom to establish a federation, which is clearly recognized in the Convention, has been dealt with in the draft Law No. 6356, but has not been included in the final form of the law. [32] In the light of these evaluations, it will be possible to say that the efforts for compliance with contract no. 87 should continue.

C. Relationship between Freedom of Association and Non-Discrimination

                       Although the freedom of unions is specifically regulated in our law, there are cases in which the principle of equality and the prohibition of discrimination are violated in cases of violation of the freedom of unions, therefore, this section will examine the relationship between the principle of equality and the prohibition of discrimination.

Union discrimination; It is carried out by subjecting the worker to a different treatment than other workers due to the worker not being a member of a certain union, not being a member or engaging in union activities. This discrimination can occur during the recruitment and dismissal process, or it may exist through changes in working conditions while the employment relationship continues. The freedom of contract in the 48th article of the Constitution allows the employer to work with the worker he wants. Although discrimination is prohibited during and after the employment contract in Article 5 of the Labor Law, there is no clear regulation regarding the discrimination in recruitment. [33] However, at this point, STİSK art.25 / 1 steps in and prohibits discrimination due to union reasons during recruitment. Regarding discrimination during work, discrimination during employment is prohibited by Article 5 of the Labor Law, and it has been imposedly repeated with Article 25 of the STİSK. Although the employer has the right to offer different working conditions to the worker with his authority arising from the management right, if these conditions are changed due to the fact that the worker in question is affiliated to a union, does not exist or the worker is in trade union activity, the mandatory provision in accordance with the TCO Art.27, which is the mandatory provision of STİSK, The amendment will be null and void as it is acted against. [34] However, different payments in matters such as wages, bonuses and bonuses arising from the collective bargaining agreement to which the employee is affiliated will not be considered within the scope of discrimination during the work. Concerning the termination of the employment contract, there is a debate in the doctrine about whether the principle of equality will be valid in termination of the employment contract. However, if the termination is due to a trade union, the provision of STİSK art.25 should be taken into consideration, because in this provision, discrimination on the grounds of trade unions is strictly prohibited.

                  IHAS Art.14 prohibits status-based discrimination, although it is not clearly stated in the contract text, when the IHAM decisions are considered, it is seen that union discrimination can also be evaluated within this scope. [35] In addition, the İHAM may consider the lack of guarantees in domestic law regarding trade union organization within the scope of the violation of the prohibition of discrimination on the grounds that the State party does not fulfill its positive obligations. [36]

III. RESULT

          Although a prohibition of discrimination and indemnity guarantees regarding the freedom of unions have been ensured, in practice disputes between employers and union members are not over. It is often seen that the employer follows the path of withdrawing from the union or from the union member, especially for the sake of his own interests. When the court decisions are examined, it is seen that rights have been demanded for dismissals due to union reasons, but there are not enough applications for discrimination due to union reasons during the continuation of the business relationship. In this regard, it is not unpredictable for the employee to refrain from seeking rights before the judicial authority because the worker may face dismissal if he initiates a judicial process against the employer with his disadvantaged position and limited financial resources. In addition to this, mediation, which is imposed due to the litigation load of labor courts, cannot keep the worker away from the danger of dismissal. Workers who lose their job during prolonged job trials are forced to turn a blind eye to trade union discrimination, especially during work, as they cannot earn a living. Necessary measures should be taken in relation to these issues, and the violation of the citizens' right to access justice should be prevented, even if indirectly.

         Regulations regarding the freedom of trade union have changed over the years, and various international conventions on the assurance of freedom have been signed. Although Turkey's stance softened distance to the trade union freedom, it can not be said of the international agreements that already meet the requirements literally bring that side. In this sense, it is necessary to take into account the improvement reports and make the necessary arrangements, otherwise, it will not be possible for the state to ensure that its citizens live a life that suits human dignity.

 

Demirkılıç Law Office

Stj. Av. Seher Savaş           

 


KAYNAKÇA

Akın, Fatih, Avrupa İnsan Hakları Sözleşmesi Madde 11 ve Uygulamalarında Sendikal Haklar, 1.Baskı, Onikilevha, İstanbul, Mayıs 2017

Beytar, Erbil, “Ayrımcılık Bağlamında Sendikal Ayrımcılık”, Kocaeli Üniversitesi Hukuk Fakültesi Dergisi, Cilt:6, Sayı:11, Ocak 2015, 77-108

Boydak, Alptekin Burak, “Sendika Özgürlüğünün Güvencesi”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N.391580, Marmara Üniversitesi Sosyal Bilimler Enstitüsü, 2015  https://tez.yok.gov.tr/UlusalTezMerkezi/

Bozkurt Gümrükçüoğlu, Yeliz / Esener, Turhan, Sendika Hukuku, Vedat, İstanbul, Şubat 2014

Canbolat, Talat / Caniklioğlu, Nurşen / Çelik, Nuri, İş Hukuku Dersleri, Yenilenmiş 32.Baskı, Beta, İstanbul, Ekim 2019

Çelik, Aziz, “Avrupa Sosyal Şartı ve Türkiye’nin Çekinceleri”, Türk-İş Dergisi, Sayı:366, Mayıs-Haziran, 2005, 91-99

Çoban, Nazlı, “Türk İş Hukukunda Sendika Üyeliğinin Korunması”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N. 564605, Ankara Yıldırım Beyazıt Üniversitesi Sosyal Bilimler Enstitüsü,  Haziran 2019, https://tez.yok.gov.tr/UlusalTezMerkezi/

Erdayı, A.Utku, “Türk Mevzuatının Sendika Özgürlüğüne İlişkin 87 Sayılı Uluslararası Çalışma Örgütü Sözleşmesi’ne Uyum Sorunu”, Süleyman Demirel Üniversitesi İktisadi ve İdari Bilimler Fakültesi Dergisi, Cilt:13, Sayı:3, 2009, 201-226

Erdoğan, Gülnur, “Avrupa Sosyal Şartı ve Gözden Geçirilmiş Avrupa Sosyal Şartı”, TBB dergisi, Sayı:77, Ankara, 2008

Günay, Cevdet İlhan, Sendikalar Kanunu Şerhi, 1.Baskı, Yetkin, Ankara, 1999

Güzel, Ali / Ugan Çatalkaya, Deniz, İş Hukukunda Güncel Sorunlar-3, 1.Baskı, Seçkin, Ankara, Haziran 2013

Karan, Ulaş, “Bireysel Başvuru Kararlarında Ayrımcılık Yasağı ve Eşitlik İlkesi”, Anayasa Yargısı Dergisi, Cilt:31, Sayı:1, 2015, 235-306

Kaymaz, Çiğdem, “Sendika Özgürlüğü ve Hakkı”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N. 308756, İstanbul Ticaret Üniversitesi Sosyal Bilimler Enstitüsü, 2012, https://tez.yok.gov.tr/UlusalTezMerkezi/

Kazak, İbrahim,  “İşçi Sendikalarının Tarihi Gelişimi (İngiltere Örneği)”, Journal of Social Policy Conferences , 2012, 0 (37-38) , 63-81

Kılıçoğlu, Mustafa, 6356 Sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu Yorumu, 1.Baskı, Bilge, İstanbul, Mart 2013

Kök, İsmail, “Sendika Üyeliğinin Güvencesi”, İş Hukuku ve Sosyal Güvenlik Hukuku Dergisi, Cilt:13, Sayı:50, Legal, İstanbul, 2016, 887-904

Özen, Mustafa, “Bireysel Sendika Özgürlüğü ve Sendikal Hakların Kullanılmasının Engellenmesi Suçu”, İş Hukuku ve Sosyal Güvenlik Hukuku Dergisi, Cilt:12, Sayı:46, Legal, 2015.

Özkaraca, Ercüment, “6356 Sayılı Kanunda Sendikal Güvenceler”, Çalışma ve Toplum Dergisi, Sayı:38, Devrimci İşçi Sendikaları Federasyonu, 2013, 173-216.

Özveri, Murat, Toplu İş İlişkisi Yasa Tasarısı ve Sendikal Haklar, Birleşik Metal-İş, İstanbul, 2012

Sağsöz, Uğur, “Sendika Üyeliğinin Güvencesi”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N. 526307, KTO Karatay Üniversitesi Sosyal Bilimler Enstitüsü,  Eylül 2018, https://tez.yok.gov.tr/UlusalTezMerkezi/

Soykut Sarıca, Pınar, “Uluslararası Çalışma Örgütü ve 6356 sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu: Genel Değerlendirme”, "İŞ, GÜÇ" Endüstri İlişkileri ve İnsan Kaynakları Dergisi, Cilt:15, Sayı:3, Temmuz 2013

Süzek, Sarper, İş Hukuku, Yenilenmiş 18. Baskı, Beta, İstanbul, Eylül 2019

Rogers, Brishen, “Three Concepts of Workplace Freedom of Association”, Berkeley Journal of Employment and Labor Law, Cilt: 37, Sayı:2, 2016

Von Potobsky, Geraldo, “Freedom Of Association: The Impact Of Convention No. 87 And ILO Action”, International Labour Review, Sayı:137, 1998, 195-221

Yamakoğlu, Efe, “Sendikaların Siyasi Faaliyetleri ve Sınırlamalar: 6356 Sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu ile Uluslararası Sözleşmeler Çerçevesinde Bir Değerlendirme”, Çalışma ve Toplum Dergisi, Sayı:62, Devrimci İşçi Sendikaları Federasyonu, Temmuz 2019, 1853-1876.

Yarsuvat, Duygun, “Yeni Türk Ceza Kanunu’nun 117 ve 118. Maddelerinde Yer Alan İş ve Çalışma Hürriyetinin İhlali, Sendikal Hakların Kullanılmasının Engellenmesi Suçları”, Sicil İş Hukuku Dergisi, Sayı:7, Eylül 2007, 141-143

                                                                           

                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                                                                                          
                                                                                                                      


[1] Yamakoğlu, Efe, “Sendikaların Siyasi Faaliyetleri ve Sınırlamalar: 6356 Sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu ile Uluslararası Sözleşmeler Çerçevesinde Bir Değerlendirme”, Çalışma ve Toplum Dergisi, Sayı:62, Devrimci İşçi Sendikaları Federasyonu, Temmuz 2019

[2] Kaymaz, Çiğdem, Sendika Özgürlüğü ve Hakkı, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N. 308756, İstanbul Ticaret Üniversitesi Sosyal Bilimler Enstitüsü, 2012

[3] Yargıtay  9. HD., T. 26.1.2015, E. 2014/34090 K. 2015/2066  (www.lexpera.com.tr)

  Yargıtay  9. HD., T. 16.10.2008, E. 2008/30130 K. 2008/27285 (www.lexpera.com.tr)

  Yargıtay  9. HD., T. 27.1.2016, E. 2015/27870 K. 2016/2122 (www.lexpera.com.tr)

[4]Yargıtay 9.HD, T. 8.10.2015, E. 2015/15317 K. 2015/27908 (www.lexpera.com.tr)

  Yargıtay 18. CD., T. 4.7.2018, E. 2016/11648 K. 2018/10716 (www.lexpera.com.tr)

[5] Canbolat, Talat / Caniklioğlu, Nurşen / Çelik, Nuri , İş Hukuku Dersleri, Yenilenmiş 32.Baskı, Beta, İstanbul, Ekim 2019, s.165-166

[6] Yargıtay, 9. HD, T. 8.11.1993, E. 1993/6484, K. 1993/15794 (Kazancı İçtihat Bilgi Bankası)

[7] Özkaraca, Ercüment, “6356 Sayılı Kanunda Sendikal Güvenceler”, Çalışma ve Toplum Dergisi, Sayı:38, Cilt:3, 2013

[8] Boydak, Alptekin Burak, “Sendika Özgürlüğünün Güvencesi”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N.391580, Marmara Üniversitesi Sosyal Bilimler Enstitüsü, 2015 

[9] Bozkurt Gümrükçüoğlu, Yeliz  / Esener, Turhan , Sendika Hukuku, Vedat, İstanbul, Şubat 2014, s.173

[10] Güzel, Ali / Ugan Çatalkaya, Deniz, İş Hukukunda Güncel Sorunlar-3, 1.Baskı, Seçkin, Ankara, Haziran 2013, s.39

[11] Boydak, Alptekin Burak, “Sendika Özgürlüğünün Güvencesi”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N.391580, Marmara Üniversitesi Sosyal Bilimler Enstitüsü, 2015 

[12] Özveri, Murat, Toplu İş İlişkisi Yasa Tasarısı ve Sendikal Haklar, Birleşik Metal-İş, İstanbul, 2012, s.64-65

[13] Yargıtay, 9. HD., T. 10.3.2016, E. 2016/2457 K. 2016/5427 (www.lexpera.com.tr)

[14] Bozkurt Gümrükçüoğlu, Yeliz / Esener, Turhan, Sendika Hukuku, Vedat, İstanbul, Şubat 2014, s.175

[15] Süzek, Sarper, İş Hukuku, Yenilenmiş 18. Baskı, Beta, İstanbul, Eylül 2019, s.652-653

[16] Güzel, Ali / Ugan Çatalkaya, Deniz, İş Hukukunda Güncel Sorunlar-3, 1.Baskı, Seçkin, Ankara, Haziran 2013, s.43

[17] AYM, GK, T. 22.10.2014, E. 2013/1, K. 2014/161 (http://kararlaryeni.anayasa.gov.tr/)

[18] Boydak, Alptekin Burak, “Sendika Özgürlüğünün Güvencesi”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N.391580, Marmara Üniversitesi Sosyal Bilimler Enstitüsü, 2015 

[19]  Güzel, Ali / Ugan Çatalkaya, Deniz, İş Hukukunda Güncel Sorunlar-3, 1.Baskı, Seçkin, Ankara, Haziran 2013, s.44

[20]  Güzel, Ali / Ugan Çatalkaya, Deniz, İş Hukukunda Güncel Sorunlar-3, 1.Baskı, Seçkin, Ankara, Haziran 2013, s.44

[21] Canbolat, Talat / Caniklioğlu, Nurşen / Çelik, Nuri, İş Hukuku Dersleri, Yenilenmiş 32.Baskı, Beta, İstanbul, Ekim 2019, s.636-637

[22] Yargıtay, 7. HD., T. 29.9.2015, E. 2015/11680, K. 2015/17044  (www.lexpera.com.tr)

[23] Yargıtay, 7. HD., T. 30.3.2016, E. 2015/43421, K. 2016/7508  (www.lexpera.com.tr)

[24]Avrupa İnsan Hakları Sözleşmesi ve Eki Protokollerde Yer Alan Haklar ve Özgürlükler, İnsan Hakları Derneği İnternet Sitesi, https://www.ihd.org.tr/avrupa-insan-haklari-sozlesmesi-ve-eki-protokollerde-yer-alan-haklar-ve-ozgurlukler/ (çevrimiçi: 18.5.2020)

[25] İHAM, T. 27.10.1975, B.N. 4464/70, Belçika Ulusal Polis Sendikası v. Belçika  (https://hudoc.echr.coe.int/)

[26] İHAM, T.21.05.2006, B.N. 28602/95, Tüm Haber Sen ve Çınar v. Türkiye (https://hudoc.echr.coe.int/)

[27] Boydak, Alptekin Burak, “Sendika Özgürlüğünün Güvencesi”, Yükseköğretim Kurumu Başkanlığı Tez Merkezi, T.N.391580, Marmara Üniversitesi Sosyal Bilimler Enstitüsü, 2015 

[28] Çelik, Aziz, “Avrupa Sosyal Şartı ve Türkiye’nin Çekinceleri”, Türk-İş Dergisi, Sayı:366, Mayıs-Haziran, 2005, s.94

[29] Akın, Fatih, Avrupa İnsan Hakları Sözleşmesi Madde 11 ve Uygulamalarında Sendikal Haklar, 1.Baskı, Onikilevha, İstanbul, Mayıs 2017, s.42

[30] Erdoğan, “Gülnur, Avrupa Sosyal Şartı ve Gözden Geçirilmiş Avrupa Şartı”, TBB Dergisi, Sayı:77, Ankara, 2008 s.130

[31] Erdayı, A.Utku, “Türk Mevzuatının Sendika Özgürlüğüne İlişkin 87 Sayılı Uluslararası Çalışma Örgütü Sözleşmesi’ne Uyum Sorunu”, Süleyman Demirel Üniversitesi İktisadi ve İdari Bilimler Fakültesi Dergisi, Cilt:13, Sayı:3, 2009, s.203

[32] Soykut Sarıca, Pınar, “Uluslararası Çalışma Örgütü ve 6356 sayılı Sendikalar ve Toplu İş Sözleşmesi Kanunu: Genel Değerlendirme”, "İŞ, GÜÇ" Endüstri İlişkileri ve İnsan Kaynakları Dergisi, Cilt:15, Sayı:3, Temmuz 2013

[33] Beytar, Erbil, “Ayrımcılık Bağlamında Sendikal Ayrımcılık”, Kocaeli Üniversitesi Hukuk Fakültesi Dergisi, Cilt:6, Sayı:11, Ocak 2015

[34] Beytar, Erbil, “Ayrımcılık Bağlamında Sendikal Ayrımcılık”, Kocaeli Üniversitesi Hukuk Fakültesi Dergisi, Cilt:6, Sayı:11, Ocak 2015

[35] İHAM, T. 30.07.2009, B.N. 67336/01, Danilenkov ve diğerleri v. Rusya (https://hudoc.echr.coe.int/)

[36] Karan, Ulaş, “Bireysel Başvuru Kararlarında Ayrımcılık Yasağı ve Eşitlik İlkesi”, Anayasa Yargısı Dergisi, Cilt:31, Sayı:1, 2015

 

Yazar Denizcan DEMİRKILIÇ