The Legal Framework: Employee's Right to Strike and Employer's Defensive Lockout

A.  Introduction

During collective labor agreement negotiations, disputes between parties may arise which lead employees to exercise the right to strike and  employers to initiate lockouts as a defense. Exercising these rights without meeting the legal conditions stipulated within the constitutional context renders the situation unlawful and causes the offending party to face severe administrative and legal sanctions.

In the event of an unlawful strike, the employer has the right to terminate the employment contracts of the employees who participated in the decision to strike, encouraged the strike, participated in the strike or encouraged the participation or continuation of the strike for just cause and without providing notice or severance pay. Furthermore,  in case of an unlawful strike, the employer may seek damages incurred due to this strike from the employee organization that initiated thestrike or from the employees who participated, if the unlawful strike was not decided by any employee organization.

Similarly, if the employer initiates a lockout without meeting the legal conditions, severe consequences may arise and entitles employees to terminate their employment contracts for just cause. In addition, the employer may be obliged to fulfill and pay all rights arising from the employment contracts during the lockout period and to compensate the damages incurred by these employees. Herein with this article, we aim to outline the key aspects of strike and lockout decisions and evaluate the factors that employees and employers should consider when deciding to implement these measures, in order to avoid being subjected to the aforementioned sanctions.

B. The Employee's Right to Strike

1. Right to Strike in General

The right to strike, which has a constitutional status in Turkish law, is regulated in Article 54 of the Turkish Constitution. Accordingly, in the event of a dispute during the conclusion of a collective labor agreement, employees have the right to strike and the procedures and conditions, scope, and exceptions of the exercise of this right are regulated by law. In addition, the use of a strike decision in a manner contrary to the rules of good faith, to the detriment of society and to the destruction of national wealth is also forbidden by the constitutional system. Further to the relevant regulation; the conditions and workplaces in which strikes may be forbidden or postponed shall be regulated by law, in these cases, the dispute will be resolved by the Supreme Arbitration Board, at any stage of the dispute, the parties can agree and apply to the Supreme Arbitration Board, the decisions of the Supreme Arbitration Board are definitive and have the force and effect of collective labor agreements.

The regulations on the procedures and conditions regarding the strike mentioned in the Article of the Constitution are regulated in the Code on Trade Unions and Collective Labor Agreement (the "Code"), No: 6356 dated 18.10.2012. The right to strike is defined in Article 58 of the Code as "the right of employees to stop work by agreement among themselves or in compliance with the decision of an organization to stop work collectively for the same purpose, with the aim of stopping the activity in the workplace or significantly disrupting it according to the quality of the work". The article also states that in the event of a dispute during the conclusion of a collective labor agreement, a strike conducted in accordance with the provisions of the Code to protect or improve the economic and social conditions and working conditions of the employees will be referred to as a "legal strike". In order to be referred as a legal strike, the demands of the employees must not go beyond professional purposes, the authorized Trade Union must take a decision and implement this decision, certain periods must be complied with and there must be no strike ban in the line of business. Actions that do not meet these conditions, such as collective work stoppages, work slowdowns, reduced productivity, condemnation, politically motivated strikes, mass walkouts, are considered unlawful strikes.

2. Implementation of the Legal Strike Decision and its Effect on the Employment Contract

The principles of taking and implementing a legal strike decision are regulated in Article 60 of the Code; it is stated that the strike decision can be taken within sixty days from the date of the notification of the mediation dispute report issued as a result of the collective labor agreements specified in the fifth paragraph of Article 50 of the Code and can be implemented on the date to be notified to the other party six working days in advance within this period.

In the event that a strike decision is lawfully taken, employees are free to participate in the strike or not, but employees who participate in the strike must leave their jobs. Those who do not participate in the strike or who refuse to participate in the strike cannot be prevented from working in the workplace by the employer. However, the employer has the discretion whether to employ these employees. Any attempt by the employer to prevent this is considered as interference with trade union rights and leads to the imposition of administrative sanctions. Article 66 of the Code guarantees employees' right to strike in various ways. Therefore, an employee's employment contract cannot be terminated for encouraging or participating in a lawful strike, and during a strike, employees will continue to benefit from insurance benefits in accordance with the relevant provisions of the Social Security and General Health Insurance Law No: 5510.

The effect of a legal strike on the existing employment contract is regulated in Article 67 of the Code. Accordingly, the employment contracts of the employees who participate in the legal strike, who do not participate in the strike or who give up their participation but cannot be employed due to the strike remain suspended during the strike and lockout period. Regarding the wages to be paid during this suspension period, the continuation of the said article states that the employer is obliged to pay the wages and supplements accrued and earned by the employee before the start of the strike or lockout on the usual payment day, but no wages and social benefits (weekly holiday pay, national holiday pay, union dues) shall be paid to the employees for this period, and this suspension period shall not be taken into account in the calculation of severance pay.

The Code prohibits the employer from hiring or employing other employees, either permanently or temporarily, to replace the suspended employees during a legal strike. It is stated that the employer's violation of this prohibition will be inspected by the competent authority upon the written application of the Trade Union. One of the important points here is that employees who do not participate in the strike or who give up their participation in the strike can only be employed in their own jobs, and these employees cannot be assigned the jobs of the employees who participated in the strike. The prohibition of hiring employees regulated for the employer in the Code also appears in the form of the prohibition of working in other jobs for the employees participating in the strike. In this context, it is regulated that the employee whose employment contract is suspended cannot work for another employer during the strike period, and if he/she does so, his/her employment contract will be terminated for just cause.

3. Unlawful Strike

In the event that the strike does not meet the conditions stipulated in the Constitution and the Code, therefore is unlawful, the employer may always request the court to determine whether the strike is unlawful or not, and in the event that the strike is unlawful, the employer may terminate the employment contracts of the employees who participated in the decision to organize the strike, encouraged the strike, participated in the strike or encouraged the participation or continuation of the strike for just cause and the employees will not be paid notice or severance pay. In this regard, it is important to note that only in the event of an illegal strike, the employer may terminate the employment contracts of the employees and seek compensation for the damages incurred. In addition, in the event of an unlawful strike, the damages incurred by the employer due to this strike will be compensated by the employees' organization that decided on the strike or, if the unlawful strike was not decided by any employee organization, by the employees who participated in this strike.

4. Termination of Employment Contract Due to Trade Union Activity

Article 25 of the Code regulates that employees cannot be dismissed or subjected to different treatment by the employer because of their union activities. In the doctrine, the definition of trade union activity is defined as any activity carried out to protect or improve their economic, social, and cultural rights and interests through trade unionism. To give a concrete example, situations such as an employee attending a union meeting or strike, distributing union leaflets, etc. are included within the scope of union activity. It should also be noted that not only union members but also employees who are not members of any union can benefit from these guarantees if they are discriminated against due to their union activities

The mentioned article of the Code regulates that if the employer violates the articles on freedom of union, an union compensation of not less than one year's salary of the employee will be decided. In this context, the employee has the right to file a lawsuit in accordance with the provisions of Articles 20 and 21 of the Labor Law No: 4857 ("Labor Law") regarding termination without notice periods and invalid termination, and the employer must prove the reason for termination in this lawsuit. In the event that it is determined in the lawsuit that the employment contract has been terminated for trade union reasons, according to Article 21 of the Labor Law, trade union compensation will be decided regardless of the employee's application, the employer's reinstatement or non-reinstatement, but if the employee is not reinstated, the non-reinstatement compensation regulated in Article 21 will not be ruled separately. At this point, the fact that the employee does not file a lawsuit based on invalid termination does not prevent the claim for union compensation.

To summarize; in the event of termination of the employment contract for invalid reasons due to union activity, liability for reinstatement and union compensation; in the event of injustice termination, liability for severance pay, notice pay, etc., as well as liability for union compensation may arise to the extent that the conditions are fulfilled.

C. The Employer's Lockout Defense

1. Lockout Decision in General

The term "lock-out" is regulated in Article 54 of the Constitution together with the right to strike. Similar to the strike, the Constitution stipulates that the procedures and conditions in case the employer resorts to a lock-out are regulated by the Code. The use of lockout in violation of the rules of good faith, to the detriment of the society and in a manner that destroys the national wealth is prohibited at the constitutional level; the provisions stipulating that the cases and workplaces where lockout may be prohibited or postponed are regulated by law, that in these cases the dispute will be resolved by the Supreme Arbitration Board, that the parties may apply to the Supreme Arbitration Board by agreement at any stage of the dispute, and that the decisions of the Supreme Arbitration Board are final and have the force of a collective labor agreement are included in parallel with the right to strike.

In Code No: 6356, the term lockout is defined in Article 59 as "the collective dismissal of employees by the employer or the employer's representative, by his own decision or in compliance with the decision of an organization, in such a way as to cause a complete cessation of activity in the workplace". In the same article, the conditions for the lockout to be legal are explained as follows: "In the event of a dispute during the conclusion of a collective labor agreement and a strike decision is taken by the trade union, the lockout made in accordance with the provisions of this Code is called a ‘legal lockout’."

In this context, only in the event of a dispute during the conclusion of a collective labor agreement and a strike decision taken by the trade union, a lockout initiated in accordance with the provisions of the Code is called "legal lockout". In the systematics of the Code, the fact that the decision to lockout is based on the condition that a strike decision has been taken beforehand shows that the lockout can only be made for defense purposes. It is regulated that a lockout decision taken without fulfilling the conditions required for a legal lockout is unlawful.

2. Elements of a Lockout

2.1. Temporary and Collective Suspension of Employees from Work:

The Code defines lockout as the "collective" suspension of employees from work. Therefore, the suspension of only some employees does not constitute a lockout. There is no white/blue collar distinction in the systematics of the Code. In accordance with the collective expression, the employees must be suspended from work all together. If there are employees who want to work at the workplace, the employer cannot accept this situation, because the purpose here is to stop the work and the employment of some employees means the prevention of this purpose and the lockout is considered as an unlawful lockout.

In addition, employees who do not participate in the strike or who refuse to participate in the strike can be employed in their own jobs. However, these employees cannot be assigned the work of the employees who participated in the strike. Within the scope of the right of management, the employer is free to employ or not to employ those who do not participate in the strike or those who refuse to participate in the strike. In a lockout, all employees are temporarily and collectively suspended from work.

In this context, after the mediation stage is passed upon the dispute during the collective labor agreement negotiations and a record is kept due to the failure to resolve the dispute, the condition of the absence of strike prohibitions regulated in Article 62 of Code No: 6356 is realized (in life and property rescue works; funeral works and cemeteries; city network water, electricity, natural gas, petroleum production, liquidation and distribution, etc.). If a lockout decision is taken by employer following the announcement of a strike decision, it is not possible to employ any white-collar or blue-collar employee at the factory site, whether they participate in the strike or not.

At this point, it is necessary to refer to Article 65 of the Code, which regulates the employees who cannot participate in both strikes and lockouts. The relevant article is as follows:

“Employees who cannot participate in legal strikes and lockouts

ARTICLE 65 - (1) In works which are not for production or sale in any way, but which have a technical necessity to be continuous in terms of their nature, the number of employees who will ensure the continuity of the activity (e.g. blast furnaces that must be constantly active, heat (humidity) sensitive equipment) or the safety of the workplace, the safety of machinery and fixtures, equipment, raw materials, semi-finished and finished products, or the protection of animals and plants, must work during the legal strike and lockout, and the employer must employ them."

The works under Article 65 are referred to as "Protection Works". Within the scope of the Article, protection works can be defined as the works necessary to keep the enterprise in its current state without production or sales, and thus to resume work without delay at the end of the strike-lockout. The employer may replace employees who are absent for any reason with new employees with the written permission of the competent authority.

It should be underlined that private security guards are not considered as protection employees. For these employees, Article 17 of the Law No. 5188 on Private Security Services provides for the prohibition of participation in strikes and Article 18 provides for the prohibition of suspension from duty due to lockout, and these employees are already within the scope of strike and lockout prohibitions and must work.

Article 68 of Code No: 6356 stipulates that during a legal strike or lockout, an employer may not hire or employ other employees, either permanently or temporarily, to replace employees whose employment contracts are suspended. It is also stipulated that employees whose employment contracts are suspended due to a legal strike or lockout cannot work for another employer during the strike or lockout. Therefore, the prohibition of working in other jobs for employees and the prohibition of hiring temporary employees for employers are foreseen both in terms of strike and lockout (However, among the employees who cannot participate in the strike and cannot be subjected to lockout, new employees can be hired to replace those who die, leave voluntarily or whose employment contract is terminated by the employer for just cause). The employer's violation of this prohibition will be inspected by the competent authority upon the written application of the party trade union, and if the violation is detected, an administrative fine will be imposed for each employee hired in violation of this prohibition.

2.2. The Suspension Is Such as To Completely Stop the Operation:

The second element of a lockout is that the suspension of work must be such as to cause a "complete" cessation of activity in the workplace. This element is essentially related to the concept of collective. The cessation of activity can only be realized if the employees are suspended collectively.

As we have explained above, in the event of a lockout, all employees in the workplace must be removed from the workplace to ensure the element of complete cessation of activity in the workplace. In this respect, because of the lockout, all employees must leave the workplace, including unionized employees, non-unionized employees and employees who wish to continue working under the working conditions desired by the employer.

2.3. Having an Employer Decision Regarding Lockout.

3. Decision and Implementation of a Legal Lockout

Article 60 of the Code regulates that the strike decision must be taken and implemented within the legal period. The relevant article further provides that the employers' union or the employer who is not a member of the union, which is a party to the dispute, can take a lockout decision within sixty days from the notification of the strike decision and put it into effect on the date to be notified to the other party six business days in advance. At this point, it is important to note that strike and lockout decisions must be announced immediately in the workplace or workplaces by the party taking the decision, the right to strike or lockout that does not start on the notified date will be forfeited, and the authorization certificates obtained in respect of the strike and lockout decisions that are not put into effect within the time limit will be null and void. In addition to the said articles, it is regulated that the date of implementation of strike and lockout decisions must be submitted by the party taking the decision to the notary public and the competent authority to be notified to the other party, and the date of implementation of the strike and lockout must also be announced immediately in the workplace or workplaces by the party taking the decision.

It should be added that the temporary or permanent prohibitions regulated for strikes are also regulated for lockouts. Lockout is also prohibited in works and workplaces where strikes are prohibited.

4. Consequences of Legal Lockout

During the implementation of the strike before the lockout decision; the sale of the products produced before the start of the strike and taking them out of the workplace cannot be prevented. It is not allowed to prevent the sale and removal of the products produced by employees who do not participate in the strike, or to prevent the entry of materials, tools, and equipment necessary for the workplace into the workplace.

As a result of a legal lockout decision:

a.  Employees' employment contracts are suspended. Therefore, some rights and obligations are suspended during the lockout, and wages and social benefits cannot be paid by the employer for this period, provided that the employees whose employment contracts are suspended pay their wages and supplements that have been processed before the start of the lockout on the usual payment day. The time spent in lockout cannot be considered in the calculation of severance pay and shall not be counted among the periods worked.

b. The employer cannot hire other employees in the workplace after the lockout decision (Art.68 - shared regulation with the strike).

c.  Except for the exceptions listed above, all employees are forced to leave the workplace.

d. Except for the exceptions listed above, the operation of the enterprise comes to a complete halt.

e.  The right to housing is regulated in the same way as strikes. During a legal (strike or) lockout, the employer may not require employees (participating in the strike or lockout) to leave the dwellings provided by the employer.

5. Unlawful Lockout and Its Consequences

A lockout conducted without fulfilling the conditions required for a legal lockout is unlawful.

In the event of an unlawful lockout, employees may terminate their employment contracts for just cause. The employer is obliged to pay all the rights of these employees arising from the employment contract related to the lockout period without any work equivalent and to compensate the damages incurred (Art. 70/3 of Code No: 6356).

Either party can request the court at any time to determine whether a strike or lockout that has been decided or is being carried out is unlawful.

The court will give a decision within one month. The decision binds the parties and the members of the employees' and employers' unions and constitutes conclusive evidence in criminal proceedings. The judge can decide to suspend the strike or lockout as a precautionary measure.

Administrative fines are imposed depending on the type of violations.

6. Maximum Duration and Termination of a Legal Strike and Lockout

Code No: 6356 does not regulate the maximum period for which a legal strike or lockout can be applied. Therefore, a legal strike or lockout can be applied for a definite or indefinite period in line with its purposes.

The termination of a legal lockout is regulated in a joint provision with the termination of a legal strike in Article 75 of Code No: 6356

“Decision to end strike and lockout:

ARTICLE 75 - (1) The decision to terminate a legal strike or lockout is notified in writing by the party taking the decision to the other party and the competent authority by the end of the next working day.

(2) The termination of the strike or lockout is announced at the workplace by the competent authority. A legal strike and lockout end with the announcement.

(3) The termination of the strike does not require the abolition of the lockout and the termination of the lockout does not require the abolition of the strike.

(4) In the event that the trade union implementing the strike is closed for any reason, or dissolved, the strike and lockout, if there is a decision taken, will automatically end and the authorization certificate will be invalid.

(5) In the event that the employers' union implementing the lockout is closed, dissolved, or dissolved for any reason, the lockout automatically ends.

(6) In the event that it is determined that three quarters of the employees who are members of the union at the workplace have left the membership of the union on the date when the union implementing the strike applied for authorization, one of the relevant persons can apply to the court for the termination of the strike. On the date to be determined by the court, the termination of the strike will be announced according to the procedure in the second paragraph."

As seen above, the situations that terminate a legal strike and lockout are regulated as i) the decision of the employee or employer party ii) the decrease in the number of trade union members iii) the termination of the employee or employer union.

Finally, we would like to add that the said article of the Code No: 6356 regulates that if the employer violates the articles on freedom of association, a union compensation of not less than one year's salary of the employee will be decided. In this context, the employee has the right to file a lawsuit in accordance with the provisions of Articles 20 and 21 of the Labor Law regarding termination without notice and invalid termination, and the employer must prove the reason for termination in this case. If it is determined that the employment contract was terminated for union reasons in the lawsuit filed, union compensation will be decided regardless of the employee's application, the employer's reinstatement, or non-reinstatement, but if the employee is not reinstated, the non-reinstatement compensation regulated in Article 21 will not be ruled separately. At this point, the fact that the employee does not file a lawsuit based on invalid termination does not prevent the claim for union compensation. To summarize; in the event of termination of the employment contract for invalid reasons due to union activity, liability for reinstatement and union compensation; in the event of termination without just cause, liability for severance pay, notice pay, etc., as well as liability for union compensation to the extent that the conditions are met, may come to the fore.

We sincerely hope that this article, in which we share our legal assessments regarding legal strikes and lockouts in accordance with relevant legislation, will be beneficial to those interested.