The establishment of trade unions and supreme organizations is based on certain principles and structured within the framework of these principles. In Law No. 6356 on Trade Unions and Collective Bargaining Agreements, the principles on which the establishment of trade unions is based are “the principle of free establishment”, “the principle of unionization according to the line of work” and “the principles of organization at the level of trade unions and supreme organizations”.
Free Establishment Principle
There are three types of systems that dominate the establishment of workers’ and employers’ organizations. These systems are permission system, mixed system and free establishment system.
In totalitarian regimes, the relevant public authority wants to retain its discretionary authority when unions acquire legal personality. Trade unions will be able to acquire legal personality by obtaining permission from the relevant authorities who wish to retain this authority. The authority to which an application is made for the establishment of legal personality has the authority to decide whether or not to grant permission. The discretion of the relevant public authority holding this authority is final. There is no authority to supervise or object to this discretion.
Mixed System (Normative System):
Unlike the authorization system, it is based on the existence of conditions set by the relevant public authority in advance. Although these conditions are strict and stringent, it is not out of question for the relevant public authority to refuse permission for the establishment of trade unions, confederations, etc. Another difference from the authorization system is that the judicial remedy is open and only the discretionary power is not vested in the relevant public authority.
Free Establishment System:
This is the system in which trade unions and confederations can acquire legal personality only by submitting their statutes and required documents to the administration, which results in their acquisition of legal personality after the administration checks the documents. Unlike the other two systems, the documents required in this system, which finds application in democratic societies, are not subject to strict and rigid conditions as in the mixed (normative) system. They are easily prepared and submitted to the competent authority. The competent authority does not even have discretionary power and is only authorized to check the documents.
According to paragraph 1 of Article 51 of the Constitution, trade unions and supreme organizations may be established without prior authorization. This provision for the free and voluntary establishment of trade unions is the free establishment system we have adopted in our legal system. It means that the state does not interfere, support or prevent the establishment of trade unions and that individuals can act freely in this direction.
Principle of Unionization by Line of Business
The basic principle of trade union organization is unionization according to the line of business. Despite this, there is no legal definition of the line of business. According to one view, a line of business is the classification of economic activities according to the groups stipulated by law and the resulting basic types of economic groupings. Line of business unionism is an organizing model that ensures unity and solidarity among workers with different qualifications who work under the same line of business, even if their professions are different.
The legislator did not give the social partners the freedom to determine the lines of business, and the lines of business were determined by law. With the 2012 amendment, the number of lines of business, which was listed as twenty-eight in the abrogated law, was reduced to twenty by Law No. 6356.
Law No. 6356 on Trade Unions and Collective Bargaining Agreements, which entered into force in 2012 and was adopted in the abrogated Trade Unions Law No. 2821, also adopted the principle of branch of labor. Although there is no regulation in the Constitution on the adopted principle of branch unionism, Law No. 6356 has introduced a regulation on this issue. Article 3 of the Law on Trade Unions and Collective Bargaining Agreement states that “…Trade unions operate in the line of business in which they are established.”
Law No. 6356 on Trade Unions and Collective Bargaining Agreements provides an exception for public employer unions. Pursuant to Article 3/2 of the Law, “public employer unions are not required to be established and active by public employers in the same line of business”. This provision, which was also included in the abrogated Law No. 2821, stipulates that private sector employers are only required to engage in union activities in the same line of business as their workplace, whereas public employers’ unions are granted a privilege and public employers are allowed to engage in union activities in different lines of business. Although the privilege granted to public employers has been the subject of much criticism, it has continued to exist in Law No. 6356.
The principle of branch of labor was enacted as the principle of branch of service for public servants’ unions and the establishment of professional unions for public servants was not accepted.
Principle of Trade Union Plurality
Trade union organization, which adopts the principle of free establishment, results in the establishment and operation of more than one trade union in the same line of business at the same time. In line with the principle of freedom of association, the existence of the “principle of plurality of trade unions” is normal. This principle, which constitutes an important aspect of the right to form trade unions, is called the “principle of trade union plurality”. Accordingly, workers or employers working in a line of business may join one of the existing unions or establish a new union. Likewise, a workers’ or employers’ union operating in a line of business may join an existing confederation or establish a new confederation by coming together with unions in other lines of business. This freedom allows workers or employers to choose the most appropriate trade union organization for their own thoughts and opinions, and in the absence of a suitable organization to choose from, to come together with workers or employers to establish the most appropriate union or confederation.
The existence of different workers’ or employers’ unions established in the same line of business will keep the dynamism among unions alive, which will lead to healthy competition among organizations. As a result, the managers of the organizations will be more careful and attentive and will contribute to a higher level of benefit from unions and confederations.
The Turkish legislator has always accepted the “principle of trade union plurality” since the first Trade Union Law No. 5018 adopted in 1947, including the current Trade Unions and Collective Bargaining Agreement Law No. 6356.
We see that the principle of trade union plurality is guaranteed, albeit indirectly, in the 1961 and 1982 Constitutions.
Article 46 of the 1961 Constitution and Article 51 of the 1982 Constitution stipulate that workers and employers have the right to establish trade unions and supreme organizations “without prior permission” and that they may freely join and leave their membership.
However, the trade unions to be established must be established to operate “on a sectoral basis”. The Constitution recognizes that workers and employers may form “trade unions and supreme organizations”. However, while the concept of trade union is clear, the law recognizes only the confederation as a supreme organization.
As stipulated by law, more than one union and confederation may be established, as well as more than one public employer’s union. Public servants may also establish more than one union and confederation in a service branch in accordance with the “principle of union plurality”.
COMPULSORY ORGANS OF TRADE UNIONS
The law on trade unions and collective bargaining agreements defines the organs of organizations and their branches as general assembly, board of directors, supervisory board, and disciplinary board. Pursuant to the STİSK No. 6356, these organs are compulsory organs. Organizations and branches may establish other organs other than the compulsory organs and give these organs the names they determine. However, the duties and powers of compulsory organs cannot be transferred to non-compulsory organs that are freely determined (Art.9/1-2).
Although the abrogated Law No. 2821 regulated a different number of members in the organs of organizations and branches other than the general assembly, Law No. 6356 clearly states that the number of members of the mandatory organs other than the general assembly (board of directors, supervisory board and disciplinary board) cannot be less than three and not more than nine, the number of members of the boards of directors of confederations cannot be less than five and not more than twenty-two, and the number of members of the boards of branches other than the general assembly cannot be less than three and not more than five, and added that the number of substitute members shall be elected to the organs other than the general assembly as many as the number of original members. (Art.9/1) The reason for this is that in case of a shortage in the original members, the substitutes will replace the missing original members.
In order to be elected to the organs of organizations other than the general assembly, the conditions listed in Article 6 must be met. An application is made by the organization to the governorship or the Ministry to determine that a person who does not have these conditions has been elected to the organs other than the general assembly. The governorship or the ministry evaluating this application shall apply to the court upon determining that a person who does not have the conditions listed in Article 6 has been elected to a body other than the general assembly. The court shall terminate the duty of this person in the elected body. The court’s decision is final.
Persons elected to bodies other than the general assembly shall automatically cease to hold office if they are convicted of any of the crimes listed in Article 6, such as embezzlement, extortion, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy, bid rigging, laundering assets derived from crime and smuggling. The mandatory organ members of the organizations and branches, other than the general assembly, shall automatically cease to hold office if they are elected as deputies or mayors. (Art.9/5-6)
The general assembly is the highest decision-making and supervisory body of the organizations in terms of its powers. Knowing that union democracy starts with the general assembly and not ignoring its importance, the legislator has left the formation of the general assemblies to the charter of the organizations based on the provision “The statutes, management and functioning of trade unions and supreme organizations cannot be contrary to the fundamental characteristics of the Republic and the principles of democracy.” (Art.51). Thus, the organizations that create their charter of their own volition will determine the number of members of their general assemblies through the organization’s charter. Again, based on the last sentence of Article 51 of the Constitution, Article 14/1 of the STİSK stipulates that democratic elections shall be held under judicial supervision in accordance with the principles of free, equal, secret ballot, open counting and casting and the provisions of the charter.
The general assembly elections of organizations are clearly stated in Article 14 of Law No. 6356 with all its principles.
1) The election of members to the board of directors, the supervisory board and the disciplinary board and the election of delegates at the general assembly shall be held under the supervision of the judiciary in accordance with the provisions of the statute and the principle of free, equal, secret ballot, open counting, and casting.
2) At least fifteen days prior to the general assembly meetings where elections will be held, the lists determining the members or delegates to attend the general assembly shall be submitted to the chairman of the competent election board together with a letter stating the agenda, place, day, time of the meeting and the issues regarding the second meeting to be held in case there is no majority.
3) The judge shall examine and approve the lists determining the members or delegates who will participate and vote in the elections and shall give a copy to the relevant organization or branch to be announced. The relevant organization shall announce the approved list seven days before the date of the general assembly meeting by posting it in the headquarters or branch office of the organization. The announcement period is three days.
4) Objections to be made to the chairmanship of the election board within the announcement period shall be examined and finalized within two days at the latest. The lists thus finalized and other matters related to the meeting shall be approved by the judge and sent to the relevant organization or branch.
5) The chairmanship of the election board shall appoint a chairman from among the persons who are not members of the organization and two members from among the members who are not candidates in the elections and form the ballot box committee. The substitute chairman and members of the ballot box committee shall be determined in the same manner. The ballot box committee is in charge of conducting the elections and counting the votes.
6) The lists of candidates for the elections shall be prepared by the presidential council and given to the relevant election board to be sealed.
7) Those whose names appear on the list shall vote by showing an official identification document and signing the list. The vote is cast by the chairman of the ballot box committee by marking the names on the list showing the candidates and sealed by the presidency of the election board. Ballots on which more than the number of members constituting the body to be elected are marked and votes written on other papers shall be deemed invalid.
8) At the end of the election period, the results of the election shall be determined by the election ballot committee with a report and announced by posting a copy of it at the election place.
9) The votes cast and other documents together with a copy of the minutes shall be submitted to the chairmanship of the competent election board to be kept for three months. The results of the election shall be immediately announced by the aforementioned presidency and notified to the relevant organization or its branch.
10) Crimes committed against the chairman and members of the ballot committee during the elections shall be deemed to have been committed against public officials.
11) Members of the election board and ballot box committees who take part in elections are paid by the relevant organization according to the principles set out in the Law on Basic Provisions of Elections and Voter Registers dated 26/4/1961 and numbered 298.
The Law regulates the principles to be followed in elections in detail and states that in case of violation of these principles, the elections will be canceled by the judge (SETİSK Art.15,31). Objections against delegate elections are decided by the Labor Court judge, not by the judge presiding over the Election Board.
The procedures and principles of delegate election shall be determined by the organization’s statutes. However, provisions preventing the election of delegates cannot be included in the statutes (Art.10/3). That is to say, the number of members and the number of delegates within the organization shall be decided by the by-laws of the organization in line with its own decisions.
Members of the compulsory organs of organizations and branches, excluding the general assembly, may attend the general assembly of their organizations and branches as delegates. Their delegate status will continue until the delegate election for the next ordinary general assembly. In the event that an extraordinary general assembly is held before the ordinary general assembly is held, the members who attended the last ordinary general assembly shall be the delegates of the extraordinary general assembly.
The powers and duties of the organizations are listed in Article 11 of the Law on Trade Unions and Collective Bargaining Agreements as follows:
- a) Election of organs,
- b) Amendment of the charter,
- c) Authorizing the board of directors to submit to the first general assembly to be held and to authorize the board of directors on matters that are deemed to be contrary to the law by the relevant authorities or courts and requested to be corrected, provided that they are not retroactive,
- ç) Discussing the reports of the board of directors and the board of auditors and the reports of the sworn financial advisors,
- d) Release of the board of directors and the supervisory board,
- e) Adoption of the budget,
- f) Determining the remuneration, compensation, allowances and travel allowances and social benefits to be paid to the members of the board of directors, supervisory board, and disciplinary board,
- g) Authorizing the Board of Directors to purchase real estate or to sell existing real estate,
- ğ) Becoming a founder of a supreme organization, becoming a member of a supreme organization, or withdrawing from membership,
- h) Opening, merging, or closing branches and authorizing the Board of Directors to do so in line with the principles set forth in the charter
- ı) Merging or joining,
- Becoming a founder of an international organization, becoming a member, or withdrawing from international organizations,
- j) Dissolution of the organization,
- k) Carrying out other actions stipulated by the legislation or charter to be carried out by the General Assembly and deciding on matters not left to another body,
Branch general assemblies of organizations may only elect organs, discuss the reports of the board of directors and the board of auditors and the reports of certified public accountants, release the board of directors and the board of auditors, and carry out other actions stipulated by the legislation or to be carried out by the general assembly and decide on matters not left to another body. Branch general assemblies do not have the power of financial release (Art.11/2).
Ordinary General Assembly
The first ordinary general assembly of organizations and supreme organizations must be held by the board of directors within six months starting from the moment the organization gains legal personality. Likewise, the first general assembly of branches shall be held within six months from the date of establishment. However, branch general assemblies must conclude their ordinary meetings at least two months before the central general assembly meeting.
The ordinary general assembly shall convene every four years at the latest, and the convening of subsequent general assemblies may be subject to a shorter period of time in the statutes. However, the general assembly cannot convene earlier than the convening period specified in the statute.
The activity and account report for the period between two general assembly meetings, the certified public accountant report, the report of the board of auditors, and the budget proposal for the next period must be sent to those who will attend the general assembly fifteen days before the meeting date (Art.12/3).
The call for the general assembly shall be made by the board of directors of the organizations (Art.12/5).
In the event that the board of directors fails to fulfill this duty, the board of directors shall be dismissed upon the application of the Ministry of Labor and Social Security or one of the members to the labor court. In this case, the court shall appoint one or three trustees in accordance with the provisions of the Civil Code to convene the general assembly as soon as possible and to manage the day-to-day affairs until a new board of directors is elected (Art. 12/6).
The meeting and decision quorums of the general assembly are determined by the legislator. The quorum for a general assembly meeting is the absolute majority of the total number of members or delegates. A higher quorum may be set in the charter. If the quorum is not met in the first meeting, the second meeting shall be postponed until at most fifteen days later. The number of participants in this meeting cannot be less than one third of the total number of members or delegates. Delegates or members may not be prevented from attending and voting at the General Assembly (Art. 13/1-2).
The quorum of the General Assembly is the absolute majority of the number of members or delegates attending the meeting. However, this number cannot be less than one fourth of the total number of members or delegates. Unless a higher quorum is specified in the statute, the quorum for the amendment of the statute, dissolution, merger, joining, becoming a founder of a supreme organization or international organization, membership to supreme organizations and international organizations, and withdrawal from membership shall be an absolute majority of the total number of members or delegates (Art. 13/3).
Extraordinary General Assembly
Since the ordinary general assembly can convene at the latest once every four years in the regulation made by law, in the case of the existence of extraordinary issues that need to be discussed and resolved within the organization, the assembly convened without waiting for the expiration of the period required for the general assembly to convene in order to take democratic decisions on issues they deem important is an extraordinary general assembly.
The extraordinary general assembly, general assembly of trade unions and confederations shall convene when the board of directors or supervisory board deems it necessary. There must be a written request of one fifth of the members or delegates of the general assembly. The extraordinary general assembly meeting shall be held within sixty days to primarily discuss the issues in the written request.
In the event that less than six months remain to the date of the ordinary general assembly meeting as of the date of the request, an extraordinary general assembly meeting cannot be convened; however, the matters subject to the request shall be included in the agenda of the ordinary general assembly meeting (Art. 12/4). The reason for this is that the time remaining before the ordinary general assembly meeting is short and the issues to be discussed at the extraordinary general assembly meeting can be discussed and debated at the ordinary general assembly meeting. This possibility makes the convening of the extraordinary general assembly unnecessary.
The extraordinary general assembly shall be convened within a framework limited to the delegates constituting the ordinary general assembly and the issues in the written request, and the grounds for the meeting must be based on a justifiable reason.
If the number of delegates requesting the convening of the extraordinary general assembly falls below one-fifth after filing an application, the board of directors shall not convene the general assembly. However, the fact that the number of delegates who applied after the lawsuit is filed falls below one-fifth does not cause the lawsuit to be dismissed. Because the Court makes its decision by considering the situation at the date of the lawsuit and, most importantly, by examining whether the call for a meeting is justified. Therefore, the extraordinary general assembly should not be expected to convene upon the request of every one-fifth member or delegate. Otherwise, the delegates or members will prevent the board of directors from carrying out its other duties that fall within its jurisdiction.
The request for the convening of an extraordinary general assembly is made to the board of directors upon the request of the supervisory board or one-fifth of the delegates. Failure of the board of directors to call for an extraordinary general assembly is an abuse of the board of directors’ authority. If the board of directors rejects the request of the supervisory board or one-fifth of the delegates requesting an extraordinary general assembly, a judicial remedy is open against this decision. The outcome of the lawsuit filed before the labor court is binding for the union.
It should be added that the Law on Public Employees’ Trade Unions and Collective Bargaining, which contains similar provisions, imposes a three-year limitation for ordinary general assembly meetings, while retaining the requirement of one-fifth of the number of members or delegates to convene an extraordinary general assembly (Art. 10/1,4).
Board of Directors
The board of directors is responsible for representing the organization, managing the organization within the framework of the laws and the organization’s statute, preparing and presenting the budget for the next period to the general assembly, and fulfilling other duties assigned to it by the general assembly. On the other hand, the board of directors does not have the authority to dismiss the regular or substitute members of the organs elected by the general assembly.
Like other compulsory organs, the board of directors of organizations and branches shall consist of at least three and at most nine members; the boards of directors of confederations shall consist of at least five and at most twenty-two members; and the number of members of the boards of branches other than the general assembly cannot be less than three and more than five (Art.9/1). While these numbers are the number of full members, the number of substitute members should also be determined. The reason for this is that if the number of full members of the board of directors decreases for any reason, the deficiency will be completed with substitute members in order to prevent the full number of members from falling below the required number.
The names and surnames of the members elected to the board of directors and the opened and closed branches are notified to the relevant governorship and the Governor sends the statute and the list of founders to the Ministry within fifteen days. The Ministry announces the name, headquarters, and statute of the organization on its official website within fifteen days (Art.9/4).
If the members elected to the board of directors are convicted of one of the crimes listed in Article 6, their duties shall automatically terminate (Art. 9/5).
Members of the board of directors of organizations and branches shall automatically cease to hold office only if they are elected as deputies or mayors (Art. 9/6).
Unless a higher quorum is stipulated in the statute, the quorum for a board of directors meeting is the absolute majority of the number of board members, and the quorum for a decision is the absolute majority of those attending the meeting (Art. 9/7).
The supervisory board is the body in charge of auditing whether the boards of directors of trade unions and confederations are operating in accordance with the decisions of the general assembly, conducting administrative and financial audits in accordance with the statute, requesting the board of directors to call for an extraordinary meeting of the general assembly, performing other auditing duties specified in the statute, and preparing and submitting the audit report to the general assembly.
According to the Law, the members of the supervisory board of organizations are elected by the general assembly and cannot be less than three and more than nine, while the number of members of the supervisory board of branches cannot be less than three and more than five. For these bodies other than the general assembly, the number of substitute members is equal to the number of original members (Art.9/1).
Law No. 6356 has deemed it appropriate to leave the regulations on how the supervisory boards will conduct audits to the statutes of the organizations.
According to Law No. 3568 on Certified Public Accountants and Sworn-in Certified Public Accountants, certified public accountants, who are authorized to audit according to the Law No. 3568 on Certified Public Accountants and Sworn-in Certified Public Accountants, conduct a financial audit of the income and expenditures of the organizations at least once every two years. This audit is the external audit of organizations introduced by the new law.
Under the Law No. 6356 on Trade Unions and Collective Bargaining Agreements, members of the supervisory board are not obliged to declare their assets as founders and executives, since they do not have the status of executives as in the abrogated Law No. 2821 on Trade Unions.
The responsibility of the supervisory board ends with the release of the general assembly for which it is responsible.
Organizations, like all other entities, need to be disciplined in order to achieve their objectives. The disciplinary board is the body that ensures and supervises discipline within the union. The real owner of authority in organizations is the general assembly. The disciplinary board carries out the task of ensuring this authority on behalf of the general assembly.
As with the other compulsory organs, the number of members of the disciplinary board cannot be less than three and more than nine; the number of members of the disciplinary boards of confederations cannot be less than five and more than twenty-two; and the number of members of the disciplinary boards of branches cannot be less than three and more than five.
While Law No. 2821 regulates the disciplinary board in a separate article, Law No. 6356 does not regulate the organs other than the general assembly in separate articles, and the mandatory organs other than the general assembly are explained in common provisions. For this reason, it is the established practice to determine the duties, powers, and responsibilities of the disciplinary boards according to the statutes of the organizations.
The disciplinary board is a compulsory body in organizations. Organizations may also establish other bodies depending to need. However, the duties and powers of the general assembly and the boards of directors, auditors and disciplinary boards cannot be delegated to these bodies (Art. 9/2).
Membership of the disciplinary board may be done with or without remuneration. The task of determining the remuneration, compensation, allowances, travel allowances and social benefits to be paid to the members of the disciplinary board belongs to the general assembly of the union (Art. 11/1-f). The union board of directors or the disciplinary board may not determine and apply a remuneration amount ex officio.
The duties, powers and responsibilities of the disciplinary board are to investigate members who are alleged to have acted contrary to the union statute, the objectives and principles of the union or the confederation, to impose disciplinary penalties and to report the results to the general assembly and the relevant parties (Article 19/4). Although the disciplinary board can impose penalties on members who violate the principles, it cannot expel them from membership. Only the general assembly can decide on dismissal from membership.
Attorney Dilhan KARHAN
Antalya Bar Association
Antalya Bilim University Graduate Student
 Tüm yetkilerin merkezileştirildiği, devlete mutlak itaat beklenen, diktatörlük benzeri yönetim.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.16
 Kaymaz, Çiğdem, Sendika Özgürlüğü ve Hakkı, İstanbul 2012
 Kutal’dan , aktaran Yenisey, 2013/4, s.50.
 Yenisey, Kübra Doğan, Sendikal Örgütlenmede İşkolu Esası ve İşkolunun Belirlenmesi, Çalışma ve Toplum, 2013/4, s.50.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.17
 Yenisey, s.48.
 Yargıtay 9. HD., 21.02.2012, E. 2011/4978, K. 2012/4945
 Demir, Fevzi, Sendikaların Kuruluşu ve İşleyişi, Çalışma ve Toplum, 2013/4, s.25
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.18-19.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.24-25.
 Fiil ehliyetine sahip ve fiilen çalışan gerçek veya tüzel kişiler sendika kurma hakkına sahiptir. Ancak 26/9/2004 tarihli ve 5237 sayılı Türk Ceza Kanunu’nun 53’üncü maddesinde belirtilen süreler geçmiş olsa bile; zimmet, irtikâp, rüşvet, hırsızlık, dolandırıcılık, sahtecilik, güveni kötüye kullanma, hileli iflas, ihaleye fesat karıştırma, edimin ifasına fesat karıştırma, suçtan kaynaklanan mal varlığı değerlerini aklama ve kaçakçılık suçlarından birinden mahkûmiyeti bulunanlar sendika kurucusu olamaz.
 Demir, Fevzi, Sendikaların Kuruluşu ve İşleyişi, Çalışma ve Toplum, 2013/4, s.34.
 Demir, Fevzi, Sendikaların Kuruluşu ve İşleyişi, Çalışma ve Toplum, 2013/4, s.35.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.27.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.35.
 Demir, Fevzi, Sendikaların Kuruluşu ve İşleyişi, Çalışma ve Toplum, 2013/4, s36.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.36.
 Aktay, A. Nizamettin, Toplu İş Hukuku, Ankara 2019, s.38.
 Demir, Fevzi, Sendikaların Kuruluşu ve İşleyişi, Çalışma ve Toplum, 2013/4, s40.
 Orhan, Ümit, 6356 sayılı Kanun Kapsamındaki Kuruluşlarda Disiplin Uygulamaları, Türkiye Adalet Akademisi Dergisi, s.360.
 Ümit, s.364.