have the competence. If several trade unions meet this criterion in the enterprise, the trade union having the largest number of members on the day of the application shall have the competence to conclude a collective labour agreement (STİSK Article 41/III).9 The procedure to determine whether a trade union is competent contains multiple stages. They are as follows: ■ The ■ A trade union that meets the requirements submits a request to the Ministry of Labour, Social Services and Family to determine whether is it indeed competent. In its application, the union asks the Ministry to determine the number of workers in the workplace and the number of its members. ■ Upon determining that the trade union meets the requirements and that it has the absolute majority, the Ministry shall communicate the result with other trade unions constituted in the same branch of activity and with the employers’ trade union or the employers not belonging to such unions. ■ The Ministry shall issue a competency certificate to the union in question if there has been no objection or if the objection has been rejected within six business days. (In trade union jargon, this is called “obtaining competence.”) Disputes as to competence Once a competence notice is received, any workers’ or employers’ trade union or an employer not belonging to such a union, may challenge the competence of either one or both of the parties or may claim that they themselves have met the requirements. The objection must list reasons for such a challenge. ■ The court will reject the objection without examining the appeal petition if it does not include any concrete evidence. The court will make a final ruling without a hearing if the time limit to object has been exceeded or if there are factual errors in the number of workers and union members. In any other objection, the court shall hold a hearing and issue a verdict, which will be open for appeal. If either party appeals to the Regional Court of Appeal, the Court will have to make a ruling within a month. If this decision is also appealed, the Court of Cassation will have to make a final ruling within a month. Source: Evrensel - [2015 - Sosyal-İş Union protest on right to bargain on collective rights] - Dispute as to competence shall be withdrawn! Respect to the union Rights! Right to collective agreement cannot be prevented! procedure to determine competence shall be suspended until the court gives a final decision on the objection. ■ In case no objection has been made within the objection period, a court determines that the union has competence as a result of the union’s objection, or if the court rejects the objection, the Ministry will issue a certificate of competence. In case of a ruling, the certificate will be issued as of the finalisation of the trial. However, objections with regard to competency are much more complicated in practice. The main obstacle to obtaining competency, and therefore the ability to engage in collective agreements, is Article 43(5) of Law No.6356, which states “Competence procedures shall be suspended until a final decision is made with regards to an objection.” Utilising Article 43(5) to delay procedures is a practice that has been going on for nearly 40 years. It has been shown that most objections are aimed at de-unionizing or at least at exerting pressure on the union by taking advantage of the postponement of the competence procedure. Moreover, various trials show that disputes concerning the scope of the workplace, the total number of workers and number of members, are lodged deliberately at labour courts that do not have competence to rule on the dispute, a delaying tactic.10 10 Engin, E. Murat. “6356 Sayılı Yasa’da Toplu İş Sözleşmesi Yetkisi.” [The Authority to Conclude Collective Labor Agreements in 9 https://www.mevzuat.gov.tr/MevzuatMetin/1.5.6356.pdf 22 C O L L E C T I V E R I G H T S O F W O R K E R S U N D E R T U R K E Y ’ S C O N T I N U O U S S TAT E O F E M E R G E N C Y T R A D E U N I O N R I G H T S I N E U R O P E A N A N D E U R O P E A N - A F F I L I AT E D E N T E R P R I S E S Law No.6356] Çalışma ve Toplum 39.4 (2013). T H E L E G A L F R A M E W O R K O F T H E S TAT E O F E M E R G E N C Y A N D I T S L I M I T S 23