Kapsam Dışı Personel Hakkında Anayasa Mahkemesi Kararı 07 Kasım 2025

"Consequently, the applicant was not entitled to benefit from the collective bargaining agreement as she was classified as excluded personnel. However, the failure of the courts to provide relevant and sufficient reasoning in this respect is incompatible with the State's positive obligations within the scope of ensuring an effective judicial review required by the right to union.
 

For the reasons explained above, it must be held that the right to union, safeguarded under Article 51 of the Constitution, has been violated." (Hülya Şimşek [Plenary], App. No: 2022/18821, 20 March 2025, § ...)
 

In the Constitutional Court's judgment, an excerpt of which is provided above, the Court held that the reasons for excluding an employee from the scope of the collective bargaining agreement were neither lawful nor justified and therefore ruled that compensation be awarded to the employee who had been excluded from the agreement.
 

Employees who are not entitled to benefit from the collective bargaining agreement are referred to as excluded personnel.
 

The first category of excluded personnel arises directly from statutory provisions. The second category, on the other hand, consists of the group of employees determined by the parties to the collective bargaining agreement, namely, the employer or employers' union and the workers' union.
 

Article 39 of Law No. 6356 on Trade Unions and Collective Bargaining Agreements explicitly specifies the categories of personnel who are not entitled to benefit from a collective bargaining agreement. Within the meaning of this Law, employers' representatives, namely, those who manage the undertaking as a whole on behalf of the employer, fall within this group. In addition, personnel who take part in collective bargaining negotiations on behalf of the employer, as well as those who worked in the workplace during a strike but are not among the employees who were obliged to work, shall not benefit from the collective bargaining agreement unless otherwise stipulated therein. The category of employees excluded from the scope of collective bargaining agreements as defined by law is based on the rationale of preventing conflicts of interest.
 

The other group of excluded personnel consists of employees designated by the parties to the collective bargaining agreement within the framework of collective bargaining autonomy. These employees are generally individuals who hold higher-level positions within the workplace or enterprises such as managers, supervisors, or engineers whose wages and social benefits are determined at the employer's discretion. Such employees cannot benefit from the collective bargaining agreement, even if they are members of the contracting trade union or pay the solidarity dues.
 

The determination of the group of excluded personnel based on the will of the parties has been recognized as valid in the case law of the Court of Cassation (Yargıtay). In the case before the Constitutional Court, the employees concerned were among those excluded from the scope of the collective bargaining agreement through the mutual will of the parties within the framework of collective bargaining autonomy.
 

In the individual application decision of the Constitutional Court, it is understood that the Court held that, under collective bargaining agreements, excluding from the scope employees designated as excluded personnel by the parties  other than those who act on behalf of the employer within the meaning of Law No. 6356, that is, those who hold the title of employer's representative or participate in collective bargaining negotiations as the employer's representative would constitute a violation of the right to union, regardless of any other criterion adopted.
 

https://www.resmigazete.gov.tr/ eskiler/ 2025/ 09/ 20250922-9.pdf

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¹ Yargıtay Hukuk Genel Kurulu, E. 2008/10-227 K. 2008/231 T. 2008; Yargıtay 22. Hukuk Dairesi, E. 2012/26685 K. 2012/24897 T. 12.11.2012