Tansu Akin
Akin Legal, Istanbul
tansu@akin.av.tr

Introduction

Employment relationships are fundamentally governed by individual work contracts between employers and employees. However, employees (workers) may delegate their rights to negotiate working conditions to trade unions. In this event, collective bargaining agreements set out the minimum rights and maximum obligations of the workers represented.

The authority and competency of trade unions, along with the procedures for collective bargaining in Turkey, are regulated under Law No 6356 on Trade Unions and Collective Bargaining Agreements (‘the Law’). Article 2/1-h of the Law defines a collective bargaining agreement as an agreement between a trade union and an employer’s union, or directly with an employer not affiliated with any union, to regulate terms concerning employment contracts, including their conclusion, content and termination.

The Law aligns with the principles outlined by the International Labour Organisation (ILO).^[1] Specifically, ILO Recommendation No 91 defines collective agreements as written agreements concerning working conditions and employment terms concluded between an employer or group of employers and representative workers’ organisations or, absent such organisations, elected worker representatives in accordance with national laws.

Thresholds for union competency

For a trade union to be eligible for collective bargaining, it must meet two cumulative thresholds:

1. It must represent at least one per cent of workers nationwide within the relevant sector.
2. It must either represent more than 50 per cent of the employees in the specific workplace or exceed a 40 per cent representation threshold across an entire enterprise.

Annually, the Ministry of Labour publishes union membership statistics by sector, informing unions and employers of the unions’ national representation capacity. However, the determination of the second criteria frequently leads to disputes between unions and employers, particularly regarding whether the threshold should be defined at a workplace or enterprise level.

Definitions and jurisprudence on workplace and enterprise

Employment Law No 4857 defines a workplace as a unit where material and non-material elements and employees are collectively organised by an employer to produce goods or services. While neither the Employment Law nor the Collective Bargaining Agreements Law explicitly define what an enterprise is, jurisprudence indicates that an enterprise is typically broader comprising multiple workplaces with a shared objective under common ownership and management, potentially across multiple sectors.

The distinction between connected workplaces versus enterprises significantly impacts union competency thresholds. Workplaces demonstrating legal dependence, unified management and common objectives should be treated as a single workplace, requiring unions to surpass a 50 per cent membership threshold. Conversely, if any of these three criteria are absent, these units constitute an enterprise, reducing the union threshold to 40 per cent.

This enterprise classification is advantageous for unions, especially when membership distribution is uneven across workplaces. A union might have no members in one workplace but may still exceed the 40 per cent threshold across an enterprise, gaining bargaining authority.

Practical challenges and judicial interpretations

Trade unions strategically assert their competency at either workplace or enterprise levels, matching their representation capacity, often leading to litigation and delays in the collective bargaining processes. Such delays significantly impact workers’ rights, particularly in Turkey’s current high-inflation context (approximately 40 per cent annually).

Turkish jurisprudence, notably from the Court of Appeals^[2] and the Court of Cassation,^[3] clarifies the criteria to resolve disputes relating to workplace or enterprise classifications:

‘In the justification of Article 2 of Law No. 4857, it is stated that the definition of workplace is a unit consisting of different elements and aimed at a technical purpose, in other words, the production of goods and services. After stating that “places connected to the workplace”, “attachments” and “vehicles” are included in the scope of a unit in determining the boundaries of a workplace, it is regulated that especially in cases where a workplace also uses a separate area for the production of goods and services, the conditions of “unity in purpose”, production in accordance with the same technical purpose, commitment in terms of quality, “unity in management” and being organized under the same management will be sought in terms of whether these will be considered as a single workplace or independent workplaces. On the other hand, since technological and economic developments require a multifaceted structural change in terms of production of goods and services, marketing and offering them to customers within the framework of a workplace, the performance of works in the realization of the purpose of a workplace has gone beyond the “place” where the workplace is established, and it has been felt necessary to expand it to liaison offices that are not workplaces within the “employer established business organization” or to organizations where works are carried out throughout the country or within the province. In this context, the provision that “the workplace is a whole within the scope of the work organization formed by the places, attachments and tools connected to the workplace” has been introduced in Article 2.

The basic element that gives the characteristic of the workplace is the technical purpose. There is no difference between producing goods and services for profit or for another purpose. In other words, service production or goods production can be a technical purpose alone. As a result, the workplace is an organizational unity that basically realizes a technical purpose. The workplace requires organization within a permanent organization. Organization essentially includes the existence of labor as well as material and non-material elements.

If two production units belonging to the same employer are organized to achieve the same technical purpose or if different production purposes of the same technical purpose are realized in these places, unity in purpose has been achieved.

Different production units do not have to be within the same land borders to be considered a single workplace. However, the distance between the units should not be at a level that prevents the execution of the works from a single source because even if there is unity in purpose between different units, it is indisputable that it is difficult to achieve unity in management.

In the sense of Collective Labor Law, the workplace should be a unit that allows the formation of common interests stemming from solidarity among workers and has continuity to continue its activities and creates a union interlocutor in the business line where the employer is engaged in the main business. In German and French Law, determining where the workplace is and its boundaries is left to the autonomy of the social partners. However, in our law, the workplace is accepted as absolute and indisputable. The concept of workplace is a functional concept. On the other hand, the enterprise is generally defined as a unit formed by the organization of more than one workplace belonging to the same employer in order to realize an economic purpose. One of the basic criteria that distinguishes a workplace from an enterprise is the purpose pursued. The enterprise does not necessarily have to pursue an economic purpose. The workplace should generally be considered as an independent section of the enterprise. It pursues a different purpose from the enterprise in Commercial Law as there is no obligation to employ workers in commercial enterprises.

A clear distinction between workplace and enterprise cannot be made based on the concept of “organization”, since both may operate within the same organizational framework. However, it is inevitable that the size of the business in relation to the workplace will also require the size of the organization. On the other hand, it is also true that the business will create a professional management team beyond the employer. After our department’s decision to eliminate, an inspection was carried out in both workplaces and in the expert reports prepared, it was stated that both workplaces were interconnected workplaces.

In the dispute in hand; the plaintiff has 2 workplaces subject to authorization determination. The one with the registration number … is located in [A] and the one with the registration number … is located in [B]. According to the authorization list document, it was seen that the workplace in [A], where 555 workers work, is registered in the Metal, Plastic Industry and Other Manufacturers Sector Group, and the workplace in [B], where 3 people work, is registered in the Transportation Vehicles, Manufacturing, Sales and Repair sector group. The ministry evaluated these two workplaces as being in the same business line and separate workplaces and made an authorization determination at the enterprise level. The plaintiff, on the other hand, claims that the workplace in [B] is a place connected to the factory in [A], a connected workplace where transfer transactions are made for the import and export of goods produced in the factory, that there are not two separate workplaces, but a single workplace, therefore, a determination should be made at the workplace level. According to the above-mentioned provisions of Law No. 6359, in order for a determination to be made at the enterprise level, it is necessary for “more than one workplace to be established in the same business line” and “to be independent workplaces”, and in the case in hand, in the factory workplace located in [A] belonging to the plaintiff company, which is the subject of determination of authority, concrete mixer manufacturing and assembly, trailer superstructure manufacturing and assembly, defense industry vehicles manufacturing and assembly works are carried out, and in the branch workplace located in [B], the goods produced in the factory and to be exported are transferred from the factory to the branch and transferred from there, the financial affairs in the factory and branch are managed from the financial center in the central factory, the warehouse in the free zone operates as a transit warehouse for import and export, no production is made in this workplace, transfer transactions are made as a continuation of the production made in the central factory, therefore this workplace is a workplace affiliated with the central factory, both workplaces operate in a unity of purpose and management and therefore the branch workplace is a workplace affiliated with the central factory, an authority determination cannot be made at the enterprise level, a sufficient majority cannot be provided for determination of authority at the workplace level, therefore it was understood that the decision given by the court was appropriate.’

To summarise the jurisprudence, several workplaces would be considered as a single workplace if they all meet the following three criterion:

• unity in purpose: production units must share the same technical purpose;
• unity in management: centralised management must oversee the operational activities across units; and
• commitment in quality: consistency in standards and practices across units is necessary.

Distance between locations should not prevent unified management. A connected workplace must support solidarity among workers, enabling collective representation aligned with the employer’s primary business activities.

Contrasting with German and French law, where workplace boundaries are subject to negotiation by social partners, Turkish law defines workplaces explicitly and indisputably.

Conclusion

Turkish courts interpret workplace definitions conservatively, emphasising technical purpose, managerial unity and quality consistency. These strict interpretations guide whether multiple workplaces constitute a single workplace or enterprise, ultimately affecting union representation thresholds and collective bargaining competencies.