LEXIST

Decision on the “Reduction of the Employee’s Base Wage After Becoming a Member of a Labour Union”

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First Instance Court Decision

With the decision of the Court of First Instance numbered 2019/472 E. 2020/209 K. dated 08.09.2020, it has been decided to accept the case on the grounds that the base wage of the plaintiff, which was agreed upon by the individual employment contract, was reduced by the defendant (employer) as a result of the plaintiff benefiting from the collective labour agreement; and that this violates the principle of favour to the employee (işçiye yararlılık ilkesi) which is stated in the second paragraph of Article 6 of the former Law numbered 2822 on Collective Labour Agreements, Strikes and Lock-outs (Law No. 2822) and in the first paragraph of Article 36 of the Law numbered 6356 on Trade Unions and Collective Labour Agreements (Law No. 6356) and that the written consent of the plaintiff employee was not obtained by the defendant employer.

Court of Appeal Decision

With the decision of the Regional Court of Justice dated 29.12.2020 numbered 2020/2498 E. 2020/3206 K., it has been decided to deny the defence attorney’s appeal request on merit based on the grounds that no violation of the law in terms of procedure and principle was found in the factual and legal evaluation of the First Instance Court.

Decision of the 9th Civil Chamber of the Court of Cassation

In the review made by the 9th Civil Chamber: it has been stated that “Although the case, which was filed based on the claim that the wage was reduced after the plaintiff employee started to benefit from the collective labour agreement after becoming a member of the labour union, had been decided in line with the previous practices and decisions of our Chamber, since in accordance with the principle decision taken by the 9th Civil Chamber of the Court of Cassation, which was reformed upon the closure of the 22nd Civil Chamber of the Court of Cassation, in September 2020, the requests based on the claims that the wage was reduced should be rejected, and attorney fees and litigation expenses should not be awarded in favour of the defendant due to the said rejection.”

Decision of Insistence Given by the Court of First Instance

In the trial conducted by the first instance court upon the decision of reversal: the Court of First Instance insisted on its previous decision based on the grounds that, “In a dispute of a similar nature, the decision of the Assembly of Civil Chambers of the Court of Cassation dated 16.05.2018 numbered 2015/1429 E. 2018/1089 K. was in line with the decision given before the reversal decision and in another case of a similar nature, the reversal decision of the 9th Civil Chamber of the Court of Cassation was given by majority vote.”

The Examination Conducted by the Assembly of Civil Chambers Regarding the Dispute Before the Assembly of Civil Chambers through Insistence

It has been decided that, “Although as a result there has been a decrease in his daily wage (per diem) within the scope of the provisions of the collective labour agreement after the plaintiff became a member of the union and started to benefit from the collective labour agreement implemented in the workplace, his financial benefits as a whole and his income have increased. Therefore, it should be accepted that the plaintiff shall not be entitled to the difference between his prior and current wages and other differential labour receivables related to this. Therefore, it is against procedure and the law to insist on the previous decision while it should comply with the reversal decision of the 9th Civil Chamber.”

Applicable Legislation

1. Article 36 of Law No. 6356.

2. Article 6 of the former Law No. 2822.

Conclusion

The decision of insistence given by the first instance court was based on the reason that, “in another case of a similar nature, the reversal decision of the 9th Civil Chamber of the Court of Cassation was given by majority vote.” However, it should be noted that; the principle decision was taken regarding the issue after the merger of the 22nd Civil Chamber of the Court of Cassation and the 9th Civil Chamber of the Court of Cassation where it was stated that, “if the base wage in the employment contract of an employee decreases after he becomes a member of the union, a comparison should be made by the court; if the wage, its fringe benefits and social rights stipulated by the CLA are in favour of the employee, it will not be against the law to reduce the base wage of the employee with the CLA.”

In the evaluation made by the Assembly of Civil Chambers, in accordance with the said principle decision, it has been accepted that, “Although the hourly wage of the plaintiff employee was reduced in his payroll after he became a member of the union and started to benefit from the collective labour agreement implemented in the workplace, since the wage was reduced by the CLA, it cannot be said that the wage was reduced by the unilateral decision of the employer; and that the employee will not be entitled to differential wages and other differential employment receivables since his financial benefits and his income increased as a whole, along with the supplementary payments stipulated in the collective labour agreement.

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