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Turkey: Court backs workers in human rights dispute with factory owner over trade union membership

Forty factory workers, dismissed from their Turkish food industry jobs for being trade union members, have convinced Strasbourg judges that their human rights were breached.

Tek Gıda İş Sendikası v. Turkey (no. 35009/05)

The applicant trade union, Tek Gıda İş Sendikası, based in Istanbul, was founded in 1955. At the relevant time it represented employees working in the food processing industry.

The case concerned the judicial authorities’ refusal to recognise the trade union’s representation in the Tukaş Gıda Sanayi ve Ticaret company and the dismissal of employees of the company who had
refused to cancel their membership of the trade union at their employer’s request.

In 2003, a number of employees in three factories belonging to the Tukaş Gıda Sanayi ve Ticaret company joined the applicant trade union.

In February 2004, that trade union asked the Ministry of Labour and Social Security to establish its representation so that it could conclude, on behalf of its members, collective labour agreements with the company in question.

By decision of 26 May 2004, the Ministry acceded to that request and validated the trade union’s representation.

The Tukaş company lodged an application to set aside that decision with the 3rd Labour Court of İzmir. By judgment of 2 December 2004, the court, hearing and determining on the basis of an expert report, acceded to that application on the grounds that the trade union had too few members to be considered sufficiently representative. The trade union appealed to the Court of Cassation, which
dismissed its appeal on points of law on 22 March 2005.

Meanwhile, the Tukaş company had invited employees who were members of that trade union to cancel their membership on pain of dismissal; forty employees refused and were dismissed on redundancies or for professional shortcomings.

On different dates, the employees in question appealed to the İzmir Labour Courts against their wrongful dismissal, demanding their reinstatement in the company. By various judgments delivered between July and December 2004, the courts ordered the Tukaş company to reinstate the employees whom it had dismissed, or else to pay them compensation for wrongful dismissal.

The Court of Cassation upheld those judgments. None of the employees were reinstated. The Tukaş company paid them the compensation ordered by the courts.

Relying in particular on Article 11 (freedom of assembly and association), the applicant trade union complained, first of all, about the domestic courts’ refusal to recognise its representation as a precondition for collective bargaining within a company, which the union submitted had been a result of an erroneous calculation of the number of union members on the staff of Tukaş, and secondly, about the fact that the relevant legislation and the courts had not prevented the company from eradicating trade unions from its workplaces by means of wrongful dismissals.

In its 4 April judgement, the European Court of Human Rights ruled:

No violation of Article 11 – concerning the refusal to recognise the applicant trade union’s representation

Violation of Article 11 – on account of the fact that the State had failed to fulfill its positive obligation to prevent the employer from dismissing all the employees who were members of the applicant trade union by means of wrongful dismissals

Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 8,500 (costs and expenses).

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