The ECHR found a violation of the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 11 of the Convention for the Protection of Human R Сведения: 2018-07-29 07:54:10

The ECHR judgment of 04 April 2017 on the case of the "Tek Gida Is Sendikasi" professional association against Turkey "( application No. 35009/05).

In 2005, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Turkey.

In the case, a complaint to a lawful refusal to recognize a trade union as a worker representative was successfully considered. The case did not violate the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In the case of large-scale dismissals of members of the trade union, which led to the absence of trade union representation of the company's employees. The case involved a violation of the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.



In May 2004, the total number of members of the applicant professional union in all three factories belonging to a particular company was sufficient to be recognized by the Ministry of Labor and Social Security of Turkey as capable of representing workers in collective bargaining on the basis of the criterion of "most employees of the company". However, the company objected to this recognition. In December 2004, the Labor Court upheld the company's objection on the basis of an expert opinion showing that if all employees of the company were taken into account in the three factories and at the head office, the number of members of the applicant's professional union was not sufficient. The trade union unsuccessfully appealed the decision. Shortly thereafter, the company sacked 40 employees who were members of the applicant professional union for staff reduction or for professional omissions. In March 2004, these former employees appealed to the labor courts for illegal dismissal, demanding that they be reinstated at work.

Between July and December 2004, various labor disputes courts ruled in favor of laid-off workers, concluding that they were dismissed because of their membership in the trade union. The courts ordered the company to restore them at work or to pay each of them compensation for illegal dismissal, equivalent to an annual salary.

The company did not restore any of the dismissed workers at work, paying them compensation compensated in their favor. In 2005, the professional applicant union no longer had members of the company's employees.


Concerning compliance with Article 11 of the Convention. (a) Refusal to recognize the status of representative for the applicant union, which was a condition for participation in collective bargaining. The refusal of courts in civil cases to recognize the status of a representative of the applicant union was interference in the right to freedom of association of the latter.

Interpretation of the law by the courts in civil cases, according to which activities additional to the main activity of the company (in the present case management and operations in the field of research and marketing), belonged to the same field of activity as its main activity (in the present case, processing of food products), was neither arbitrary nor manifestly unfounded.

At the same time, the requirement for a trade union striving to obtain a representative status in the company, to prove that the number of its members is at least half of the total number of employees of this company, was provided by law.

The domestic courts clearly pursued the goal of protecting the rights of workers by large trade unions. The refusal to recognize the status of representative for the applicant union was not final and was effective only until the number of members of the applicant union reached a simple majority of the company's employees. In addition, the contentious court decisions in principle did not detract from the right of the applicant's professional union to try to communicate to the employer in ways other than collective bargaining, the position that it intended to defend on behalf of its members while also trying to attract additional members to the company's employees as a whole.

Finally, the argument of the applicant's professional union that the employees of the company's head office could not be considered relevant to the food processing industry could have the effect of containing these workers from joining any trade union. Under such circumstances, the method of counting the number of employees representing the majority in the disputed company did not affect the fundamental activities of the trade union, but only constituted a secondary aspect. The controversial judgments were aimed at establishing an equitable balance between the competing interests of the applicant professional union and the entire community in question. These decisions, therefore, were taken within the limits of discretion granted to the state with respect to the means of securing both freedom of association in general and the ability of the applicant professional union to protect the professional interests of its members.


In the case, the requirements of Article 11 of the Convention were not violated (unanimously).

(b) The alleged disintegration of the trade union movement in the company, caused by the dismissal of all members of the applicant's trade union. There was interference with the exercise by the applicant's trade union, as an entity other than its members, of its right to conduct trade union activities and to participate in collective bargaining. The controversial interference was in accordance with the law, the interpretation of which was given by the courts on labor disputes. In addition, allowing the employer to choose between reinstating the work of illegally dismissed workers and paying them compensation, controversial legislation and related court decisions were aimed at preventing conflicts in the workplace and, accordingly, protecting the rights of others and preventing violations of public order. Having made the choice in favor of paying compensation, the company withdrew the professional applicant union from its territory, which resulted in the complete absence of the trade union representation of the company's employees and the loss of all members by the trade union. Because of the loss of all its members, the professional union-applicant faced a restriction affecting the very basis of his trade union activities, which gave the domestic authorities a narrower margin of appreciation and required a more detailed justification for the proportionality of the intervention.

However, nothing in the materials of the case suggested that the civil courts, who reviewed the case, awarding as minimum compensation for the illegal dismissal, provided for by law, conducted a thorough analysis of the deterrent effect of such amounts, taking into account, for example, low salaries for laid-off workers and / or significant financial capabilities of the company in which they worked. The refusal of the employer to reinstate dismissed workers and the award of compensation, which was not sufficient to deter the employer from future unlawful dismissals, did not violate the law interpreted in the judgments in the present case. The relevant legislation, as it was applied by the courts, did not impose enough deterrent sanctions on the employer, who, in carrying out illegal large-scale dismissals, deprived the applicant of the ability to try to convince workers to join him. Consequently, neither the legislator nor the courts that examined the case complied with their positive obligation to guarantee the applicant's effective association the exercise of the right to try to persuade the employer to listen to his views on behalf of its members and, in principle, his right to collective bargaining with the employer. Consequently, the necessary fair balance between the competing interests of the professional union of the applicant and the company as a whole was not established.


There has been a violation of Article 11 of the Convention (unanimously).


In the application of Article 41 of the Convention. The Court awarded the applicant union 10,000 euros (EUR) in respect of non-pecuniary damage.


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