A strike is the collective stoppage of work by employees in order to defend or advance their economic and social interests. In Turkish law this right is guaranteed by Article 54 of the Constitution, while the manner of its exercise and its limits are governed by the Trade Unions and Collective Labour Agreements Act No. 6356.
Not every collective stoppage of work, however, amounts to a strike in law. Whether the action complies with the statute produces consequences across a wide field, from the fate of the employment contract to the legal remedies available to the employer. The distinction between a lawful strike and an unlawful strike is therefore not a theoretical classification but a line that directly determines the outcome in practice.
Below we examine the concept of the strike, the persons to whom the right is granted, the steps through which the decision is taken, the differences between the two types of strike, and the legal consequences of the process for the employee and the employer alike.
The Concept of the Strike
Definition and Function
A strike is the collective cessation of work by employees in order to protect or improve their economic and social rights. In collective labour law the strike functions as an instrument of pressure and negotiation, resorted to in particular for the resolution of disputes arising during collective labour agreement negotiations.
Constitutional Basis
The right to strike is secured at constitutional level:
Constitution of the Republic of Türkiye, Art. 54(1)
"Employees have the right to strike in the event that a dispute arises during the conclusion of a collective labour agreement."
As the wording of the provision makes clear, the constitutional guarantee is not unlimited; the exercise of the right is tied to the collective labour agreement process and to the procedure prescribed by statute.
The Regime Under Act No. 6356
The scope of the right, the manner of its exercise and its limits are dealt with in detail in the Trade Unions and Collective Labour Agreements Act No. 6356. The Act constructs the strike as the halting by employees, through collectively refraining from work, of activity at the workplace, or its substantial disruption having regard to the nature of the work. Nevertheless, not every collective stoppage of work enjoys the legal protection of that definition; for an action to be regarded as lawful, the conditions enumerated in the statute must be satisfied.
Who Holds the Right to Strike
Unionised Employees
In Turkish law this right is in essence a power conferred upon unionised employees. Since the instrument in question serves the resolution of disputes arising in the collective labour agreement process, it is exercised as a rule through employee trade unions. It is not legally possible for a single employee to take a strike decision on his or her own.
The Decision Is Taken by the Trade Union
The exercise of the right depends upon the competent employee trade union taking a strike decision once a dispute has arisen in the collective labour agreement negotiations. The decision is taken in accordance with the procedure prescribed by the statute, announced at the workplace, and then implemented. In this respect a strike is not an individual reaction but a collective action organised by the trade union.
The Position of Non-Unionised Employees
Employees who are not union members have no power to take a strike decision themselves. Where, on the other hand, a lawful strike decision has been taken at the workplace by the competent trade union, employees who are not members may also join that action. Where non-unionised employees organise among themselves and collectively stop work, this will in most cases be characterised as an unlawful strike.
Public Officials and Strike Prohibitions
No such right is provided for public officials. Under the Constitution and the relevant legislation, civil servants and other public officials may not go on strike. In addition, in certain branches of activity the right to strike may be restricted on grounds of public order and public health.
What Steps Precede a Strike Decision?
Collective labour agreement negotiations. A strike arises, as a rule, following a dispute that emerges during collective labour agreement negotiations. If no agreement can be reached in the negotiations between the employee trade union and the employer or the employers’ association, the dispute stage begins.
The record of dispute. Where the negotiations prove inconclusive, a record of dispute is drawn up between the parties. That document establishes that the negotiations have broken down and constitutes one of the legal steps required for the strike process to run its course.
The mediation stage. Once the record has been transmitted to the competent authority, a mediator is appointed and the mediation process begins. If no settlement can be reached at this stage either, the mediator draws up a record concerning the dispute and submits it to the competent authority.
The union taking the decision. Following the drawing up of the record of dispute and the completion of the mediation meeting, the competent employee trade union may take a strike decision, observing the periods and procedures required by the statute. The decision is given by the competent organs of the union, and the will to stop work collectively is thereby expressed in law.
Announcement and implementation of the decision. The decision taken is announced at the workplace in the manner prescribed by the statute and notified to the relevant authorities. The announced decision may be put into effect within the period allowed. Once the strike actually begins, the employees collectively cease work and activity at the workplace halts or is substantially disrupted.
The Lawful Strike
Definition
A lawful strike is the collective stoppage of work in order to defend or improve the economic and social interests of employees, carried out in compliance with the procedures and conditions laid down in Act No. 6356. Strikes conducted in accordance with the statute are legally valid and afford employees a measure of protection.
The Conditions Required
For an action to be regarded as a lawful strike, the following conditions must be satisfied together:
- the action must take its origin in a dispute arising in collective labour agreement negotiations;
- the decision must have been given by the competent employee trade union;
- the decision given must be announced in the manner required by the statute;
- the action must be implemented in observance of the periods and steps set out in the statute.
Collective stoppages of work that do not bear these elements are not regarded as lawful strikes.
An Example from Practice
Where no agreement can be reached in negotiations on wages, working conditions or social rights, strikes decided upon by the competent trade union and implemented after due announcement are in the nature of a lawful strike. In such actions the employees are exercising a right conferred by statute, and their participation in the strike does not on its own constitute a valid reason for termination.
The Unlawful Strike
Definition
An unlawful strike is a collective work stoppage carried out without compliance with the procedures and conditions laid down in Act No. 6356. In other words, where employees collectively cease work in the absence of a decision taken by following the procedure required by the statute, the action falls within this category.
When Is a Strike Regarded as Unlawful?
Actions carried out in the following circumstances are generally characterised as an unlawful strike:
- where the action is carried out in branches of activity in which a strike prohibition applies, or in areas of public service
- where there is no strike decision given by the competent employee trade union
- where the stoppage of work arises on a footing outside the collective labour agreement process
- where the procedural and time conditions required by the statute are not observed
De Facto Work Stoppages
Collectively stopping work, slowing it down, or embarking on action designed to halt the activity of the workplace, without any basis in a union decision, is in most cases assessed as falling within the scope of an unlawful strike. Conduct of this nature does not amount in law to the exercise of the right to strike.
The Legal Consequences
A strike contrary to the statute may have consequences for both employees and trade unions. Faced with such an action, the employer has the option of terminating the contracts for just cause and of claiming compensation for the loss it has suffered. Legal liability and sanctions may likewise arise for trade unions that organise an unlawful strike.
For further detail on the employer’s power of termination for just cause, reference may be made to our note entitled In Which Cases May the Employer Terminate the Contract for Just Cause; and for the consequences of termination in respect of severance pay, to our note entitled Severance Pay Claims.
Lawful and Unlawful Strike: A Comparative View
The essential criterion separating the two types of strike is whether the action has been carried out in compliance with the procedures and conditions prescribed by statute. A lawful strike is an action conducted by following the steps required by Act No. 6356 and protected in law, whereas an unlawful strike is a stoppage of work brought about without compliance with those conditions. The consequences the distinction produces for the parties are markedly different.
| Point of comparison | Lawful strike | Unlawful strike |
|---|---|---|
| Basis | A dispute arising in collective labour agreement negotiations | A collective stoppage with no basis in the statutory process |
| Deciding body | The competent organ of the competent employee trade union | No union decision taken in due form |
| Procedure | The announcement, notification and time conditions in the statute have been observed | The procedural and time conditions have not been met |
| Employment contract | Suspended for the duration of the strike | The employer may proceed to terminate for just cause |
| Liability | Participation alone is not a ground for termination | Compensation for loss and union liability may arise |
Determining into which category a work stoppage falls is therefore of decisive importance, both for the protection of employees’ rights and for the legal measures available to the employer.
Rights and Obligations of the Parties During a Strike
The status of the employment contract. Employment contracts do not come to an end during a lawful strike; they are merely suspended. In this period the employee does not perform the obligation to work, and the employer is under no obligation to pay wages. When the strike ends, the contract continues in force from where it left off.
The working regime at the workplace. During a strike, activity at the workplace largely halts or is seriously disrupted. While the employees taking part in the strike do not work, the employer is for its part obliged to conduct the working regime in this period in accordance with the statute. It is not open to the employer to resort to strike-breaking practices or to engage in unlawful conduct aimed at weakening the effect of the action.
Employees who join the strike and those who do not. Employees who take part in a lawful strike are regarded as having exercised a constitutional right; their contracts may not therefore be terminated on the sole ground that they joined the strike. Employees who do not wish to join the strike may continue working. That said, cases are also encountered in which work cannot in practice be carried out because the order of the workplace has been seriously disrupted.
Wages and Social Rights During a Strike
Are wages paid? Since the contract is suspended for the duration of a lawful strike, the employee may not claim wages for the period not worked. Nor is the employer under any obligation to pay wages in this period. Those taking part in the strike may not benefit from wages or from entitlements in the nature of wages for the duration of the action.
Insurance status. Because the contract is suspended, SGK contributions are likewise not paid for this period. Time spent on strike is as a rule not counted towards the insurance period and is not added to the number of contribution days.
Fringe benefits. Throughout the period of suspension, fringe benefits such as meals, transport, bonuses and gratuities do not as a rule accrue either.
When Does a Strike Come to an End?
Signature of the collective labour agreement. A strike most often comes to an end with the signature of the collective labour agreement by the parties. Once agreement is reached on wages, working conditions and social rights, the purpose of the action has been achieved and the employees return to their posts.
The union calling off the strike. Just as it is the union that gives the decision, the power to bring the action to an end also rests with the union. The union may decide, on various grounds, to end or to suspend the strike.
Other grounds of termination. A strike may also end for other reasons. A settlement reached between the parties, the expiry of statutory periods, the ending of the action by administrative decision, or a change in the conditions of the workplace are examples of such cases. With the ending of the strike the employees return to work and the suspended contracts take effect once more.
May the Employer Resort to a Lock-Out?
What is a lock-out? A lock-out is the halting by the employer, during a collective labour agreement dispute, of the activity of the workplace in whole or in part, with a view to suspending work temporarily. Put another way, the lock-out is an instrument of collective labour law regarded as the employer’s counterpart to the strike.
The lawful lock-out. The implementation of a lock-out depends upon compliance with the conditions laid down in Act No. 6356. A lock-out announced and implemented in due form is regarded as a lawful lock-out. In that case the contracts remain suspended for the duration of the lock-out; the employees may not claim wages for the period not worked.
Its relationship with the strike. A lock-out may as a rule be resorted to only by way of response to a lawful strike. The employer may take a lock-out decision in response to a strike decision taken by the union. In this respect the two institutions are positioned as legal instruments to which the parties may resort against one another in the collective labour agreement process.
Furthermore, many of the provisions concerning the work in respect of which a strike may not be called, the employees who may not strike, and the effect of a strike on employment contracts apply to the lock-out as well; on these matters the two institutions are subject to a parallel regime.
The Independent Legal Assessment
The most frequently encountered error in collective labour disputes is that the character of the action is debated after the event. Whether a stoppage of work will be regarded as a lawful strike is, however, determined by the procedural steps followed before the action begins. The drawing up of the record of dispute, the completion of the mediation stage, the taking of the decision by the competent organ and its announcement in due form are formal requirements that cannot be made good afterwards.
A similar discipline is required on the employer’s side. The limits of the measures to be taken against a strike are drawn by statute; strike-breaking practices cease to be a lawful response and may give rise to liability on the part of the employer. Nor should it be overlooked that a lock-out decision may arise only within the statutory conditions and by way of response to a strike.
The following matters take priority in the management of the process:
- complete documentation of the traffic of records and notifications in the collective labour agreement negotiations
- verification that the strike decision was given by the competent organ and that the conditions of announcement were met
- identification, before the action, of the strike prohibitions applying in the branch of activity concerned
- conduct of wage, bonus and insurance practices during the suspension period in accordance with the legislation
- lawful structuring of the working regime in respect of employees who do not join the strike
- advance assessment of the statutory conditions and of timing where a lock-out decision is contemplated
Independent Legal provides advisory services and conducts litigation in disputes arising from collective labour law, from collective labour agreement negotiations through to the management of strike and lock-out processes.