The purpose of this study is to provide a solution on how to establish the branch’s right to legal rest within the framework of the procedural provisions of the branch’s right to legal rest in the event of a conflict of interest between the union headquarters and the branch that held the general assembly subject to annulment in the lawsuit filed for the annulment of the union branch general assembly, decisions taken and elections held. The party to the annulment lawsuits to be filed for the branch general assembly is the union, which is a private law legal entity. Since the branch does not have legal personality, it cannot be a party to the lawsuit. Unions may engage in behaviors that will neutralize the branch that opposes them. This is contrary to internal union democracy. Limited to the cases where there is a conflict of interest between the union and its branch, it has been adopted by judicial decisions and defended in the doctrine that the branch should be given the right to defend itself in the lawsuit despite its lack of legal personality. In the event that the union headquarters does not use the necessary means of defense, the branch should be given the opportunity to express that its general assembly or transaction is in accordance with the law. How this right can be exercised within the procedural provisions is discussed in this study and evaluated together with the judicial decisions.
Trade unions are private law legal entities established for the protection and development of the economic and social rights and interests of their members. Trade unions have the right to internal and external organization. This is a consequence of the collective freedom of association. When unions are organized in branches, they can establish healthier communication with their members and seek solutions to their problems. The participation of members who are too far away from the union headquarters in the union’s activities may decrease. Therefore, branch organization of trade unions helps the development of democracy within the union.
Respect for the power of the majority, protection of the rights of the minority, and a participatory organizational structure are the sine qua non of democracy. Democracy requires respecting the power of the majority in an environment where there are those who think differently, but also protecting the rights of the minority. Differences between the union and the branch, although a necessity of democracy, may disturb the union headquarters. In cases where there is a conflict of interest, the union headquarters may take actions to liquidate dissident branches instead of supporting and acting in favor of the branch.
Trade unions have the capacity of right and action. The capacity to act is exercised through their organs. The general assembly of the trade union is the highest authorized body of the trade unions. Pursuant to Article 10 of the Law No. 6356 on Trade Unions and Collective Bargaining Agreements, the general assembly is composed of members or delegates in accordance with the principles in the trade union statute. The general assembly elects the compulsory organs, takes the basic decisions necessary for management, carries out audits and imposes the necessary sanctions. The decisions taken by the general assembly must therefore comply with the law, the statute and democratic principles.
General assembly decisions of trade unions and branches with legal personality are subject to judicial review. “Members and delegates of the ministry or organization or its branch may file a lawsuit within one month from the date of the general assembly for the annulment of these transactions or the general assembly, claiming that the general assembly and elections were held in violation of the provisions of the law and the statute, or that there was an irregularity or unlawful practice to the extent that it affected the results of the elections.” (Article 15 of the CML).
Trade union branches do not have legal personality. If the decisions taken or elections held by the branch general assembly are contrary to the law, statute and democratic principles, the Ministry, members or delegates may file a lawsuit for annulment. The party to the lawsuit is the union headquarters since the branch has no legal personality. In cases where there is a conflict of interest between the union and the branch, it is possible that the union headquarters may not make an adequate defense in the annulment lawsuit filed for the branch general assembly and may even accept the lawsuit. In cases where there is a conflict of interest between the union and its branch, the right to legal rest must be recognized, as the court’s decision regarding the branch general assembly will affect the union branch and the status of the elected mandatory organ members of the branch.
In the lawsuit filed against the union for the annulment of the general assembly of the branch, how the branch will exercise its right to legal rest has been the subject of judicial decisions and this issue has been discussed in the doctrine. In cases where there is a conflict of interest between the union and the branch, the Court of Cassation, which accepted the existence of compulsory litigation friendship between the union headquarters and the union branch and ruled that if the lawsuit is not directed to the union branch, the court should consider this situation at every stage of the proceedings and ensure that it is a party, continued this practice until 2023. It is also accepted in the doctrine that in order for the union branch to defend itself, the lawsuit must be directed to the union branch together with the union headquarters.
In its decision rendered in 2023, the Court of Cassation stated that the lawsuit should be directed to the members of the branch board of directors since the representative title of the union belongs to the members of the board of directors, and that this is a requirement of the right to be heard legally. In our study, in cases where there is a conflict of interest between the union and the branch, whether the branch or the branch manager can side with the union as a compulsory litigation friend is examined in line with judicial decisions and solutions are proposed.
Trade Union, Branch, Legal Entity, Litigation Friendship, Collateral İntervention
