Information Note on the Court’s case-law 206

April 2017

Tek Gıda İş Sendikası v. Turkey - 35009/05

Judgment 4.4.2017 [Section II]

Article 11

Article 11-1

Form and join trade unions

Refusal based on statute to recognise trade union as representing staff: no violation Large-scale dismissals of trade-union members resulting in absence of union representation for company employees: violation

Facts – in May 2004 the total membership of the applicant trade union in all three factories belonging to a specific company had been sufficient for it to be recognised by the Ministry of Labour and Social Security as capable of representing employees in collective bargaining und er the “majority of the company employees” criterion. The company, however, contested that recognition.

In December 2004 the Labour Court upheld the company’s challenge on the basis of an expert report demonstrating that if one took into account all the co mpany’s employees in the three factories and also the company’s headquarters, the applicant trade union did not have enough members. The trade union appealed, unsuccessfully.

Shortly afterwards the company dismissed the 40 employees who were members of the applicant trade union on redundancies or for professional shortcomings. In March 2004 those former employees appealed to the Labour Courts on grounds of wrongful dismissal and requested their reinstatement in post.

Between July and December 2004 the diffe rent labour courts found in favour of the dismissed employees, considering that they had been dismissed on the grounds of their membership of a trade union. The courts ordered the company to reinstate them, or else to pay each of them compensation for wron gful dismissal equivalent to one year’s wages.

The company did not reinstate any of the dismissed employees and paid them the compensation as ordered. In 2005 the applicant trade union no longer had any members among the staff of that company.

Law – Article 11

(a) Refusal to recognise the applicant trade union’s representation as a precondition for involvement in collective bargaining – The civil courts’ refusal to recognise the representative status of the applicant trade union had amounted to an interference with the latter’s right to freedom of association.

The civil courts’ interpretation of the law, to the effect that activities complementary to a company’s primary activity (in the present case, research and marketing management and operations ) come under the same sector of activity as its primary activity (in this case the food-processing industry), had been neither arbitrary nor manifestly unreasonable. That being the case, the requirement on a trade union aspiring to representative status wi thin a company to demonstrate that its membership covered at least half of the total number of the employees of that company had been prescribed by law.

The domestic courts had clearly pursued the aim of ensuring the protection of workers’ rights by powerf ul trade unions.

The refusal to recognise the representative status of the applicant trade union had not been final and would only be valid until the membership of the applicant trade union achieved a simple majority of the company’s employees.

Furthermore, the impugned judicial decisions did not, in principle, stand in the way of the applicant trade union’s right to seek to persuade the employer, by means other than collective bargaining, to listen to what it had to say on behalf of its members, while at the same time attempting to recruit more members from among the company’s overall staff.

Finally, the applicant trade union’s argument that the staff at the company’s headquarters could not be considered as belonging to the food-processing sector might have had the effect of deterring those employees from joining any trade union.

Under those circumstances, the method of counting the number of employees representing the majority in the impugned company had not affected the trade union’ core activit y but rather constituted a secondary aspect. The impugned judicial decisions had been geared to striking a fair balance between the competing interests of the applicant trade union and the whole community in question. Those decisions had therefore been a m atter for the margin of appreciation available to the State regarding the means of ensuring both freedom of association in general and the applicant trade union’s ability to protect its members’ professional interests.

Conclusion : no violation (unanimously ).

(b) The alleged deunionisation of the company consequent upon the dismissal of all the members of the applicant trade union – There had been an interference with the exercise by the applicant trade union, as an entity distinct from its members, of its right to conduct trade union activities and engage in collective bargaining. The impugned interference had been in conformity with the law as interpreted by the labour courts. Moreover, by allowing the employer to choose between reinstating the wrongfully dismissed employees and paying compensation to them, the impugned legislation and the attendant court decisions had been geared to preventing tension in the workplace and thus protecting the rights of others and preventing public disorder.

By opting to pay compensation, the company had excluded the applicant trade union from its premises, resulting in an absence of union representation for all company employees and the loss of all the members of the trade union in question.

Owing to the loss of its membersh ip, the applicant trade union had sustained a restriction striking at the very heart of its union activities, giving the national authorities a narrower margin of appreciation and necessitating more detailed justification as regards the proportionality of the interference. However, there was nothing in the case-file to suggest that when the civil courts involved in the case had awarded in compensation for wrongful dismissal the minimum amounts authorised by law, they had conducted a close examination of the deterrent effect of such amounts, having regard, for example, to the low wages of the employees dismissed and/or the enormous financial power of the company which had employed them.

The employer’s refusal to reinstate the dismissed employees and the award of insufficient compensation to deter the employer from any future wrongful dismissals had not infringed the law as interpreted by the judicial decisions taken in the present case. The relevant law as applied by the courts had not imposed sufficiently det errent penalties on the employer, who, in carrying out wrongful large-scale dismissals, had annihilated the applicant trade union’s ability to try to persuade employees to join. Consequently, neither the legislature nor the courts involved in the case had fulfilled their positive obligation to guarantee the applicant trade union’s effective enjoyment of its right to attempt to convince the employer to listen to its comments on behalf of its members and, in principle, of its right to collectively bargain wit h it. It followed that the requisite fair balance had not been struck between the competing interests of the applicant trade union and the company as a whole.

Conclusion : violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes