In the last issue, by examining some of the provisions of the New Turkish Penal Code, which entered into force on 12 December 2004 within the scope of EU harmonization efforts, the law; We have mentioned that it contains a number of new concepts and regulations that directly concern our business and working life as well as the employer sector as well as the individual. In this context, we tried to explain “crimes against the environment” by stating that we will detail two of the regulations due to their special importance. However, in this article, we will include the provisions under the heading “Violation of Freedom of Work and Labor and Prevention of the Use of Trade Union Rights”, which we could not mention in the previous issue because we did not have enough space.
The most important thing to know about this subject is that; With these provisions, a new type of crime has been created that has never existed in our law before, and accordingly, many problems have arisen in practice.
With the new regulation, the violation of the freedom of work and labor and the prevention of the use of union rights have become a serious crime.
117 of the New Turkish Penal Code. In the first paragraph of the article under the title of “Violation of the freedom of work and work”; A person who violates the freedom of work and work by using force or threat or by any other unlawful behavior will be punished with imprisonment from six months to two years or a judicial fine, in case of a complaint by the victim. Anyone who employs them for low wages or subjects them to working and accommodation conditions incompatible with human dignity shall be sentenced to imprisonment from six months to three years or a judicial fine not less than one hundred days. It establishes that a person who compels the acceptance of agreements under conditions other than those previously accepted or causes a business to be stopped, terminated or continued, shall be sentenced to imprisonment from six months to three years.
In the rationale of this article, it is stated that, as determined in the Constitution, everyone has the freedom to work and contract, and starting from the provision that it is free to establish private enterprises, it is stated that the aim of this crime definition is to secure the said fundamental freedom.
A new type of crime, which was not included in the previous Turkish Penal Code, has been created in terms of union guarantee:
118 of the New Turkish Penal Code. pursuant to the article; A person who uses force or threat against a person to force him to join or not join a union, to join or not participate in the activities of a union, to force him to leave the union or his position in the union management, is sentenced to imprisonment from six months to two years. 2 of the same article. in the paragraph; It is said that in case the activities of a union are prevented by the use of force or threat or any other unlawful behavior, a prison sentence of one to three years is imposed.
118 titled “Prevention of the use of trade union rights”. With this article, a new type of crime was created that was not included in the previous TCK. In the first paragraph of the aforementioned article, it was tried to ensure the freedom of individual unions by means of punishment, and in the second paragraph, the freedom of the unions collectively was tried to be guaranteed. 31 of the Trade Unions Act. The article already regulates the guarantee of the union under the title of guarantee of freedom of being a member of a union or not. Moreover, in the new Labor Law No. 4857, there are many provisions such as reemployment provisions and regulations that expand this guarantee. With this latest regulation in the Turkish Penal Code, we see that the union guarantee is once again secured by more than one law.
The definition of the crime in question has been broadly covered and is open to abuse against employers:
When we look at the provision and justification of the law regarding the Union Guarantee, it is understood that the definition of the crime is handled broadly and is open to abuse to the detriment of the employers.
In the text of the article, acts of preventing the use of union rights are defined as crimes. It is a crime to be forced to join or not be a member of a union, to participate in or not to participate in the activities of the union, or to be forced to leave the union or its position in the union management. In order to be sentenced according to the completed form of this crime, it is not necessary for the person who has been subjected to coercion or threat to be a member of the union or to give up being a member of the union, to participate in the activities of the union or to give up participating in the union or to leave the union or his position in the union management. For these purposes, the use of force or threat against the person is sufficient to be punished as if the crime in question was completed. In this respect, the crime in question is to be specified in terms of legal technique; constitutes an attempted crime. If the activities of a union are hindered by force or threat or any other unlawful act, the crime is completed. In this context, and when we look at the way the article is arranged, it is easy to complain and difficult to acquit!
A democratic reaction of the employer during the union organization will of course not be within the scope of this article. The employer, who is unable to prove the real reason for terminating an employee’s employment contract before the court, and who somehow terminates it just because the employee is a member of a union, may find himself testifying as a suspect in the prosecutor’s office and before the court without even realizing it.
In this way, it seems possible for any employer who wants to prevent the activity of the labor union, which starts organizing activities in any workplace, according to its own methods, without professional help, to find himself in the defendant’s chair at any time and easily.
It is obvious that after these issues, which were not considered crimes before, came into our lives with the new regulation, it is necessary to be much more careful even within the legal field of action.
One of the most basic legal rules; It has been determined as “ignorance of the law is not an excuse”, so legal regulations, especially penal laws, are no joke. In order not to fall into undesirable situations, our employers should have at least general knowledge of such laws that directly concern them.
(This article was published in the section of Law and Us in the November 2006 issue of the Journal of the Aegean Region Chamber of Industry.)
