SECOND SECTION

CASE OF TEK GIDA Ä°Åž SENDIKASI v. TURKEY

( Application no. 35009/05 )

JUDGMENT

( Extracts )

STRASBOURG

4 April 2017

FINAL

04/07/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tek Gıda İş Sendikası v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Julia Laffranque, President , Işıl Karakaş, Nebojša Vučinić, Paul Lemmens, Ksenija Turković, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges , and Stanley Naismith , Section Registrar ,

Having deliberated in private on 7 March 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 35009/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a trade union , Tek Gıda İş Sendikası (“the applicant union ”), on 16 September 2005 .

2 . The applicant union was represented by Mr G . Dinç and Mr I . Bahçıvancılar , lawyers practising in İ zmir . The Turkish Government (“the Government”) were represented by their Agent.

3 . In its application, the applicant union complained mainly of violations of Article 11 of the Con vention , alleging that the domestic courts had refused to recognise it as having the necessary representative status for collective bargaining within a company , and that the legislation and the courts had not prevented the same company from eradicating trade unions from its premises by means of wrongful dismissals.

4 . On 31 August 2011 notice of the application was given to the Government .

THE FACTS

5 . At the material time the applicant union, fo u nd ed i n 1955 with its registered office in Istanbul, represented workers in the food-processing sector .

I. THE CIRCUMSTANCES OF THE CASE

6 . In 2003 a number of employees at three factories in Turgutlu (Manisa), Torbalı (İzmir) and Manyas belonging to the Tukaş Gıda Sanayi ve Ticaret public limited company (“the Tukaş company” or “Tukaş”), the main shareho lder of which was the holding company OYAK (Ordu Yardımlaşma Kurumu, a pension fund for the armed forces), joined the applicant union.

7 . On 20 February 2004, arguing that the number of its members at the three factories had attained the minimum level set in the Trade Union Act (Law no. 2821 ; ... ), the applicant union applied to the Ministry of Labour and Social Security ( “the Ministry” ) for certification of its representative status ( yetki belgesi ) so that it could enter into collective labour agreements with Tukaş on behalf of its members .

8 . In a decision of 26 May 2004 the Ministry granted the application and confirmed the applicant union ’ s representative status. On the basis of a re port drawn up by labour inspectors on the nature of Tuka ş ’ s activities and its labour force , the Ministry found that, in view of the number of employees belonging to the applicant union and the total number of staff at the three factories, which operated in the food-processing sector , the conditions laid down in the Trade Union Act (Law no. 2821) for engaging in collective bargaining were satisfied . I t also stated that the staff at Tuka ş ’ s head office belonged to the “ business , computing, e ducation and arts” sector .

9 . On 31 May 2004 Tukaş applied to the İzmir 3rd Labour Court for judicial review of the Ministry ’ s decision of 26 May 2004, submitting that the applicant union did not satisfy the requirements for engaging in collective bargaining .

10 . On 17 September 2004 the 3rd Labour Court appointed an expert to determine whether the applicant union ’ s membership attained the minimum level laid down in the Trade Union Act (Law no. 2821) .

11 . On 13 November 2004 the expert submitted his report to the court . In it he noted that, according to a first approach taking into account the total number of Tukaş ’ s employees at its head office and its three factories , th e applicant union did not have enough members to represent employees in collective bargaining. He pointed out that production planning for the factories on the basis of market demand, laboratory controls and analyse s of product hygiene, taste and quality, product marketing and human resources management were all carried out at the company ’ s head office, that the activit ies of the three factories and the head office were “complementary” for the company and that they all came under the food-processing sector. Accordingly, a calculation of the company ’ s total number of employees had to include the staff at both the head office and the three factories, and as a result, the applicant union was not sufficiently representative to engage in collective bargaining with Tukaş.

In his re port the expert also noted that , according to a second approach excluding staff at the head office, th e applicant union had a sufficient number of members at the three TukaÅŸ factories to qualify as representative.

12 . The applicant union challenged the expert report before the Labour Court. It argued that, pursuant to section 60 (17) of the Trade Union Act (Law no. 2821) , employees at the Tukaş head office belonged to a different occupational sector , namely the “business, computing, education and arts” sector , and consequently could not form part of its membership. That being so , it contended that the expert report shou l d not have included staff at the head office in its calculations.

13 . T h e Ministry asked the Labour Court to reject the application by Tuka ÅŸ , argu ing that its de cision of 26 May 2004 authorising the applicant union to represent employees in collective bargaining with the company had been lawful .

14 . In a ju dg ment of 2 December 2004 the İzmir 3rd Labour Court found in favour of the company and withdr e w the applicant union ’ s representative status. It based its de cision on the arguments set out in the first approach referred to in the expert report of 13 November 2004. It found that the activit ie s carried out at the Tuka ş he a d office were complementary to the activities at the company ’ s factories , and that they all came under the food-processing sector. Accordingly, it held that the applicant union ’ s members accounted for only 152 of the 443 Tuka ş employees, a figure that was too low for the applicant union to qualify as representative in the light of the requirement for “the majority of a company ’ s employees” to be members.

15 . On 21 December 2004 the applicant union appealed on points of law and reiterated the observations it had made before the Labour Court.

16 . In a judgment of 22 March 2005 the Cour t of C assation dismissed the applicant union ’ s appeal and upheld the first-instance judgment . The judgment was finalised on 15 April 2005 .

17 . M ean whil e, at the start of 2004 TukaÅŸ had invited employees who were members of the applicant union to cancel their membership on pain of dismissal. Some had complied but forty employees had refused.

18 . Shortly afterwards, Tuka ÅŸ had dismissed the forty employees in question on economic grounds (market fluctuations) or for professional shortcomings ( underperformance ).

19 . In March 2004 the employees dismissed by TukaÅŸ applied to the Ä°zmir labour courts, claiming wrongful dismissal and seeking their reinstatement in the company.

20 . In judgments delivered between July and December 2004, different İzmir labour courts (nos. 1, 2, 3, 4 and 5) found in favour of the dismissed employees , holding that they had been dismissed on the grounds of their membership of a trade union . They observed that Tuka ş had failed to persuade them that there had been any economic or performance-related reasons to justif y the dismissals, which had therefore been wrongful. They ordered Tuka ş to reinstate the dismissed employees, or failing that, to pay each of them compensation for wrongful dismissal equivalent to one year ’ s wages.

21 . In judgments delivered between December 2004 and June 2005 the Court of C assation upheld the ju dg ments of the Ä°zmir labour courts .

22 . Tuka ÅŸ did not reinstate any of the employees it had dismissed and paid them compensation as ordered by the labour courts. By 2005 the applicant union no longer had any members among the staff of TukaÅŸ.

...

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

28 . The applicant union complained, firstly, that the domestic cou rts had refused to recognise it as having the necessary representative status for collecti ve bargaining within a company as a result of their incorrect approach to the calculation of its members hip among the employees of TukaÅŸ, and secondly, that the legislation and the courts had not prevented the company from eradicating trade unions from its premises by means of wrongful dismissals. To that end it relied on A rticle 11 of the Convention, which provides :

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

A. Refusal to recognise the applicant union as having the necessary representative status for collective bargaining

29 . Th e applicant union complained that the courts had withdrawn its representative status, this being a precondition for collective bargaining with the Tukaş company, on the grounds that its members did not account for the majority of employees at the company ’ s three factories and head office .

30 . In th e applicant union ’ s submission , when assessing the lawfulness of the Ministry ’ s decision recognising it as representative , the national courts should not have included staff at the Tukaş head office in their calculation of the company ’ s total workforce ; in accordance with section 60 of Law no. 2821, those staff were office workers and consequently belonged to a different occupational sector , namely the “business, computing, education and arts” sector, and could therefore not have joined the applicant union .

31 . Th e Government submitted that , in withdrawing the applicant union ’ s representative status within the Tukaş company , the national courts had taken into account the company ’ s full range of activities involving the production and marketing of processed food products, and had complied with both domestic law and the Convention.

32 . The Court reiterates that Article 11 of the Convention safeguards freedom to protect the occupational interests of members of a trade union through the union ’ s collective action, the conduct and development of which the Contracting States must both permit and make possible ( see Demir and Baykara v. Turkey [GC], no. 34503/97, § 140, ECHR 2008 ) . Paragraph 1 of that Article affords members of a trade union the right for their union to be heard with a view to protecting their interests, but leaves each State a free choice as to the means to be used towards this end . What the Convention requires is that under national law, trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members ’ interests ( see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts) ) .

34 . For an interference with the exercise of the rights and freedoms safeguarded by Article 11 to be considered “necessary in a democratic society”, it must be shown that it answers a “pressing social need”, that the reasons adduced by the national authorities to justify it are relevant and sufficient and that it is proportionate to the legitimate aim pursued. In previous trade-union cases, the Court has stated that regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members may be secured ( see Sindicatul “Păstorul cel Bun” , cited above, § 133 ).

35 . The breadth of th is margin will still depend on the factors that the Court in its case-law has identified as relevant, including the nature and extent of the restriction on the trade-union right in issue, the aim pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right . The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the applicable international instruments (see Demir and Baykara , cited above, § 85).

37 . In the present case , the Court notes that the civil courts ’ withdrawal of the applicant union ’ s representative status amounted to an interference with the union ’ s right to freedom of association as enshrined in A rticle 11 of the Convention.

38 . As to whether the interference was in accordance with domestic law , the Cour t observe s that the Ministry of Labour and the applicant union were in agreement on the calculation method to be used, namely counting only those employees working at the company ’ s factories, and not those working at its head office. However, following the challenge by the company, the civil courts held that the total number of the company ’ s employees should be taken into account in determining whether the applicant union was representative .

39 . The Court considers that this interpretation of the law by the civil courts, to the effect that activities complementing a company ’ s primary activity – in the present case, administration and research and marketing operations – belong to the same occupational sector as the primary activity – in this case , the food-processing sector – was neither arbitrary nor manifestly unreasonable .

40 . That being so, the Court accepts that the requirement for a trade union aspiring to representative status within a company to demonstrate that its membership accounted for at least half of the company ’ s overall workforce was prescribed by law.

41 . As regards the aim of the restriction, the Court is not persuaded that in refusing to recognise the applicant union as representative until its membership across the company as a whole had increased, the national courts pursued any other aim than ensuring that workers ’ rights were protected by powerful trade unions .

42 . As to whether the measure complained of was necessary in a democratic society, the Court must ascertain whether the calculation method employed fell within the margin of appreciation available to the State in such matters. It will first examine the nature and extent of the restriction on the trade-union right in issue. It observe s in this connection that the refusal to recognise the applicant union ’ s representative status was not irrevocable and applied only as long as the union ’ s membership had not attained a simple majority of the company ’ s workforce . Such a majorit y could have been attained if a further seventy-two employees out of the remaining 291 non-members had joined the applicant union .

43 . Furthermore , the Cour t note s that the impugned judicial decisions do not, in principle, hinder the applicant union ’ s right to seek to persuade the employer, by means other than collective bargaining, to hear what it has to say on behalf of its members, while at the same time attempting to increase its members hip across the company as a whole .

44 . Regarding the possible impact of the applicant union ’ s unrestricted exercise of its rights on the interests of others, the Cour t observes that the union ’ s argument that staff at the Tukaş head office should not be regarded as working in the food-processing sector could have had the effect of considerably lessening the likelihood of those employees joining a trade union. In this connection it is worth noting that there is no indication in the case file that staff at the head office were in fact covered by any collective agreements concluded for the “business, computing, education and arts” sector .

45 . The Court further notes that the applicant union did not challenge, as such, the criteria which a trade union had to satisfy under the domestic legislation applicable at the material time in order to be considered representative, but disputed the method used by the national courts for calculating “the majority of a company ’ s employees”.

46 . In those circumstances, the Court finds that the point disputed by the applicant union, namely the method of counting the number of employees representing a majority within a company, does not strike at the core of trade-union activity but instead constitutes a secondary aspect . It consid ers that the impugned judicial decisions sought to strike a fair balance between the competing interests of the community and the applicant union , and that accordingly, they fell within the State ’ s margin of appreciation as to how trade-union freedom in general and the applicant union ’ s ability to protect its members ’ occupational interests could be secured .

47 . There has therefore been no violation of A rticle 11 of the Convention in this respect .

B. Alleged deunionisation of the company through the dismissal of the applicant union ’ s members

48 . Th e applicant union submitted that the large-scale wrongful dismissal of its members by their employer had resulted in the absolute eradication of trade unionism across the whole company in less than a year. In that regard , it drew attention to the domestic courts ’ responsibility in failing to examin e its application within the time prescribed by law, thus giving the employer the time to put an end to all trade-union activity in its factories by means of wrongful dismissals. It also emphasised that the domestic courts had given the employer the choice between reinstating the dismissed employees and paying compensation for their dismissal, and that in doing so, they had left the way open for the dismissal of those employees wish ing to remain members of the union. In the applicant union ’ s submission , the national legal system in force at the material time had not safeguarded trade unions ’ right to organise within a company , when that company had dismiss ed all employees belonging to a trade union and then pa id them compensation for wrongful dismissal as provided by law.

49 . Th e Go vern ment objecte d that the dismissal of employees of the Tukaş company had not interfered with trade-union freedom as g u arante ed by A rticle 11 of the Convention. Even assuming that there had been such an interference, the labour courts had afforded redress for it by finding in favour of the dismissed employees. Each of them had received compensation for wrongful dismissal equivalent to one year ’ s wages .

50 . The Court reiterates its case-law to the effect that Article 11 of the Convention presents trade-union freedom as a special aspect of freedom of association and that , although the essential object of that Article is to protect the individual against arbitrary interference by public authorities with the exercise of the rights it protects, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights ( see Demir and Baykara , cited above, §§ 109 and 110). It noted in Sindicatul “ Păstorul cel Bun ” that the boundaries between the State ’ s positive and negative obligations under Article 11 of the Convention did not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether a case is analysed in terms of a positive duty on the State or in terms of interference by the public authorities which needs to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole ( see Sindicatul “Păstorul cel Bun” , cited above, § 132).

51 . In the present case , the Court must first examine the Government ’ s argument that the national courts had afforded redress for any interference with the applicant union ’ s exercise of trade-union freedom. While noting that the member s of the applicant union who were dismissed are not applicants in the case before it , the Court considers that their dismissal had two effects on the union ’ s activities. Firstly , the fact that the judicial decisions did not lead to the reinstate ment of the dismissed employees or , alternatively, to an order for the company to pay compensation for wrongful dismissal amounting to an effective deterrent caused the applicant union to lose its members at the Tukaş company . Secondly , the non-reinstatement of the dismissed employees and the insufficient amounts of compensation they were awarded by the courts for wrongful dismissal had the effect of discouraging other employees from joining the applicant union . The union thus lost the chance of retaining its members or attracting new ones and attaining the necessary threshold to qualify as representative for the purpose of collective bargaining within the company in question. It cannot reasonably be concluded that the damage caused by the redundancy of the employees belonging to the union as a result of their wrongful dismissal was fully repaired and ceased to have a deterrent effect simply because the dismissed employees were paid compensation equivalent to one year ’ s wages, following judicial proceedings that lasted between a year and a year and half instead of complying with the three-month time-limit prescribed by law. In the light of these factors , the Court considers that there has been an interference with the applicant union ’ s exercise, as an entity distinct from its members, of its right to conduct trade-union activities and engage in collective bargaining.

52 . Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” for the achievement of those aims.

53 . In the present case the Court observes that the interference in issue was in conformity with domestic law as interpreted by the labour courts. The Court can also accept that by allowing the employer to choose between reinstating the wrongfully dismissed employees and paying them compensation, the impugned legislation and the corresponding court decisions were aimed at preventing tension in the workplace and thus protecting the rights of others and preserving public order.

54 . As to whether such an interference was necessary in a democratic society, the Court observe s firstly that by opting to pay the compensation awarded by the courts for wrongful dismissal, the Tukaş company prevented the applicant union from operating on its premises . The employer ’ s decision to pay compensation rather than reinstating the dismissed employees resulted in the deunionisation of the entire Tukaş workforce and the loss of all the applicant union ’ s members within the company .

55 . The Court considers that th is loss of member s hip amounted to a restriction striking at the core of the applicant union ’ s trade- union activities, meaning that the national authorities had a narrower margin of appreciation and that more was required to justify the proportionality of the interference . However, there is nothing in the case file to suggest that when the civil courts involved in the case awarded the minimum amounts permitted by law in compensation for wrongful dismissal, they gave careful consideration to the deterrent effect of such awards, for example by taking into account the low wages of the dismissed employees and/or the significant financial power of the company that had employed them.

56 . The Court note s that the employer ’ s refusal to reinstate the dismissed employees and the award of insufficient compensation to deter the employer from carrying out any further wrongful dismissals did not infringe the law as interpreted in the judicial decisions in the present case. It infers from this that the relevant law, as applied by the courts, did not impose sufficiently deterrent penalties on the employer, which, by carrying out large-scale wrongful dismissals, negated the applicant union ’ s freedom to seek to persuade employees to join it . Accordingly, neither the legislature nor the courts involved in the case satisfied their positive obligation to secure the effective enjoyment of the applicant union ’ s right to seek to persuade the employer to hear what it had to say on behalf of its members and, in principle, its right to bargain collectively with the employer . I t follows that a fair balance between the competing interests of the applicant union and of the community as a whole has not been struck in the present case.

There has therefore been a violation of A rticle 11 of the Convention in this respect .

...

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

...

2. Holds that there has been no violation of Article 11 of the Convention on account of the refusal to recognise the applicant union ’ s representative status as long as it did not satisfy the statutory conditions as interpreted by the domestic courts ;

3. Holds that there has been a violation of Article 11 of the Convention on account of the State ’ s failure to comply with its positive obligation to prevent the employer from excluding all its employees belonging to the applicant union by means of wrongful dismissals;

...

Done in French, and notified in writing on 4 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley              Naismith Julia Laffranque Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Lemmens and Turkovi ć is annexed to this judgment.

J.L. S.H.N.

JOINT CONCURRING OPINION OF JUDGES LEMMENS AND TURKOVIĆ

( T ranslation)

1. We voted with our colleagues as regards the conclusions set out in the operative provisions of the judgment. However, we have some reservations about the reasoning that led to those conclusions.

Refusal to recognise the applicant union as having the necessary representative status for collective bargaining

2. According to the majorit y , the withdrawal of the applicant union ’ s representative status amounted to an interference with the exercise of its trade-union freedom ( see paragraph 37 of the judgment ).

In our opinion, it is not obvious that th is should be characterised as interference . The issue is the refusal to recognise the applicant union as having the necessary representative status to be able to engage in collective bargaining. We consider that such a refusal can also be analysed as a failure by the respondent State to comply with its positive obligation to secure the enjoyment of the applicant union ’ s rights under A rticle 11 of the Convention.

That being so, the Court could have followed the approach adopted in Demir and Baykara v. Turkey ( [GC], no. 34503/97, § 116, ECHR 2008) , concerning a similar complaint. In that case the Court acknowledged that the complaint could be analysed either as an interference or as a breach of a positive obligation, and stated that it would “proceed on the basis” that the complaint was to be examined in terms of an interference, while also having regard to the State ’ s positive obligations in this context .

3. As to whether the interference in issue was justified, we subscribe to the line of reasoning set out in paragraphs 38 - 47 of the judgment and we therefore agree with the conclusion that there has been no violation of A rticle 11 of the Convention in this respect .

Alleged deunionisation of the company through the dismissal of the applicant union ’ s members

4. A s regards the other complaint raised by the applicant union , namely the insufficient protection afforded by domestic law against the large-scale wrongful dismissal of its members by the company employing them , the opposite problem arises.

After mention ing that A rticle 11 of the Convention may impose both positive and negative obligations on the State ( see paragraph 50 of the judgment ), the majorit y find that in the present case there has been an interference with the applicant union ’ s exercise of its right to conduct trade-union activities and engage in collective bargaining ( see paragraph 51 of the judgment ). [1]

To our regret, we are unable to agree with the majority on this point. In our opinion, there was no direct intervention by the State in the events complained of by the applicant union , namely the dismissal of its members by their employe r, a private company .

Accordingly, the only question arising in relation to this complaint is whether the State afforded sufficient protection against the employer ’ s actions in order to secure effective respect for the applicant union ’ s rights ( see , mutatis mutandis , Sørensen and Rasmussen v . De n mark [GC], n os. 52562/99 and 52620/99, § 57, ECHR 2006 ‑ I ). This question relates solely to the State ’ s positive obligations.

5. For the reasons given by the majorit y in relation to the necessity of the “interference” (see paragraph s 54-56 of the judgment ), we consider that the applicable legal regime , as implemented in the applicant union ’ s case , failed to strike a fair balance between the union ’ s and the employer ’ s rights ( see, i n particul a r, paragraph 56 of the judgment ). On that basis, we agree with the conclusion that there has been a violation of A rticle 11 of the Convention in respect of this complaint .

[1] . Curi ously , in paragraph 56 the judgment concludes that “neither the legislature nor the courts involved in the case satisfied their positive obligation to secure the effective enjoyment” of certain of the applicant union’s rights ( emphasis added ).