Türk hukukun’ da toplu iş uyuşmazlıklarında barışçı çözüm yolu olarak arabuluculuk
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Dosyalar
Tarih
2018
Yazarlar
Dergi Başlığı
Dergi ISSN
Cilt Başlığı
Yayıncı
Namık Kemal Üniversitesi
Erişim Hakkı
info:eu-repo/semantics/openAccess
Özet
Türk Hukuku’nda bireysel iş uyuşmazlıklarının çözümü 5521 Sayılı İş Mahkemeleri Kanunu döneminde 6325 Sayılı Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu’na bağlı olarak ihtiyari olarak arabulucuya götürülebildiği görülmektedir. Bireysel iş uyuşmazlıklarının mahkeme tarafından çözümünün masraflı olması ve uzun sürmesi nedeniyle bu durumun işçinin mağduriyetine yol açtığı ifade edilebilir. Bireysel iş uyuşmazlıklarının daha hızlı ve etkin çözülmesine yönelik yasal çalışmalar tezin yazımı aşamasında tamamlanmıştır. 7036 Sayılı İş Mahkemeleri Kanunu toplu hak uyuşmazlıklarından kaynaklanan ve mahkemede görülecek olan dava açılmadan önce arabuluculuğa başvurulmasını dava şartı olarak getirmiştir. Böylece ihtiyari olan arabuluculuk toplu çıkar uyuşmazlıklarında olduğu gibi zorunlu arabuluculuk şekline dönüşmüştür. Tezin varılan sonucunu kısaca özetlemek gerekirse; Türk Hukuku’nda 6356 Sayılı Kanunu ile grev ve lokavt öncesi toplu menfaat (çıkar) uyuşmazlıkları için barışçı çözüm yolu olarak getirilen arabuluculuk konusundaki düzenlemelerin yetersiz olduğu ve eksikliklerin gelişen çalışma koşulları dikkate alınarak yeniden ele alınması gerekmektedir. Toplu hak uyuşmazlıklarında yapılan yeni düzenlemeler dikkate alınarak toplu hak ve çıkar uyuşmazlıklarında farklı uygulamaların ya da yeni sorunların ortaya çıkması söz konusu olabilecektir. 6356 Sayılı Kanunda yer alan arabuluculuk ile ilgili hükümlerin değiştirilerek 7036 Sayılı İş Mahkemeleri Kanunu ve 6325 Sayılı Hukuk Uyuşmazlıklarında Arabuluculuk Kanunu’nda yer alan düzenlemeler de dikkate alınarak toplu iş uyuşmazlıkları için arabuluculuk konusunda bütünlük arz edecek şekilde Adalet Bakanlığı ile Çalışma ve Sosyal Güvenlik Bakanlığı’nın ortak olarak yürütecekleri çalışma sonucunda arabuluculuk hükümlerinin yönetmeliğe bırakılmadan daha ayrıntılı bir şekilde hazırlanacak yeni bir kanun ile günümüzdeki şartlara uygun olarak yeniden düzenlenmesi gerektiği hususunda kanaate varıldığı söylenebilir.
There are many sources and studies on the field of individual labor disputes in Turkish Law such as books, articles, theses and it can be observed that the studies being conducted has concentrated on this field in recent years. In order to help you eliminate your gaps in collective labor disputes and to encourage conducting studies on the collective labor disputes, it can be said that it is necessary to write a thesis on Mediation as a Peaceful Solution in Collective Labor Disputes in Turkish Law. Reasons for preparing the thesis are as follows: Trying to explain the amendments made to the laws and regulations in Turkish Law regarding the mediation, determining the issues that are missing regarding the mediation and helping the legislator make amendments, guiding the change in regulations in whole or in part by criticizing the problems that the existing regulations bring about in practice, and encouraging the mediation institution in particular to make use of the dispute more willingly and effectively in a solution-oriented manner. According to the rights recognized by the Constitution of 1961 after the period when the strike and lockout in the Labor Law No. 3008 was forbidden in Turkish Law, the Collective Labor Agreement Strikes and Lockout Law No. 275 entered into effect and it appears that the reconciliation took place as a peaceful solution alternative to the collective labor disputes. After the adoption of the 1982 Constitution, the Collective Labor Convention Striking and Lockout Law No. 2822 entered into effect and after the amendments made in the Constitution in 2012, the Law No. 6356, which is still in force, entered into force. In both cases, it is understood that the mediation took part in the collective interests disputes as a peaceful solution. Law No. 6356 has removed the distinction between voluntary and mandatory mediation. It can be argued that the mediation is a mandatory peaceful solution that needs to be considered in collective interests disputes before resorting to the options like the strike and lockout. Resorting to strike and lockout in collective iv rights disputes was not recognized by the legislator and therefore the resolution of the rights disputes was left to the courts. It is seen that the solution of individual labor disputes in Turkish Law can be arbitrarily dealt with the help of mediation in accordance with Law No. 6325 on Mediation in Legal Disputes in the period of the Labor Courts Law No. 5521. Since the settlement of the individual labor dispute cases at courts is considered to be a fairly costly and lengthy process, it can be said that this situation leads to the victimization of the worker. Legal work on resolving individual labor disputes more quickly and effectively has been completed in the course of writing the thesis. The enacted Labor Courts Law No. 7036 has deemed it mandatory cause of action to resort to mediation before bringing the cases regarding the collective rights disputes to the court. Thus, the arbitrary mediation has become mandatory, as in the case of the collective interests disputes. To summarize the result of the thesis, one can say that the regulations regarding the mediation offered as a peaceful solution alternative with the enactment of the Turkish Law No. 6356 to strike and lockout in the collective interests disputes are insufficient and the deficiencies need to be reconsidered taking into account the evolving working conditions. Taking into account the new regulations on collective rights disputes, it is possible that different practices or new problems arise in the collective rights and interests disputes. By changing the provisions concerning the mediation in the Law No. 6356, and taking into consideration the regulations contained in the Labor Courts Law No. 7036 and the Law on Mediation in Legal Disputes No. 6325, and as a result of the joint work of the Ministry of Justice and the Ministry of Labor and Social Security, which will provide a complete picture of mediation for collective labor disputes, it can be said that the mediation provisions have been decided to be rearranged in accordance with the current conditions, with a new law to be prepared in detail without resorting to the regulations.
There are many sources and studies on the field of individual labor disputes in Turkish Law such as books, articles, theses and it can be observed that the studies being conducted has concentrated on this field in recent years. In order to help you eliminate your gaps in collective labor disputes and to encourage conducting studies on the collective labor disputes, it can be said that it is necessary to write a thesis on Mediation as a Peaceful Solution in Collective Labor Disputes in Turkish Law. Reasons for preparing the thesis are as follows: Trying to explain the amendments made to the laws and regulations in Turkish Law regarding the mediation, determining the issues that are missing regarding the mediation and helping the legislator make amendments, guiding the change in regulations in whole or in part by criticizing the problems that the existing regulations bring about in practice, and encouraging the mediation institution in particular to make use of the dispute more willingly and effectively in a solution-oriented manner. According to the rights recognized by the Constitution of 1961 after the period when the strike and lockout in the Labor Law No. 3008 was forbidden in Turkish Law, the Collective Labor Agreement Strikes and Lockout Law No. 275 entered into effect and it appears that the reconciliation took place as a peaceful solution alternative to the collective labor disputes. After the adoption of the 1982 Constitution, the Collective Labor Convention Striking and Lockout Law No. 2822 entered into effect and after the amendments made in the Constitution in 2012, the Law No. 6356, which is still in force, entered into force. In both cases, it is understood that the mediation took part in the collective interests disputes as a peaceful solution. Law No. 6356 has removed the distinction between voluntary and mandatory mediation. It can be argued that the mediation is a mandatory peaceful solution that needs to be considered in collective interests disputes before resorting to the options like the strike and lockout. Resorting to strike and lockout in collective iv rights disputes was not recognized by the legislator and therefore the resolution of the rights disputes was left to the courts. It is seen that the solution of individual labor disputes in Turkish Law can be arbitrarily dealt with the help of mediation in accordance with Law No. 6325 on Mediation in Legal Disputes in the period of the Labor Courts Law No. 5521. Since the settlement of the individual labor dispute cases at courts is considered to be a fairly costly and lengthy process, it can be said that this situation leads to the victimization of the worker. Legal work on resolving individual labor disputes more quickly and effectively has been completed in the course of writing the thesis. The enacted Labor Courts Law No. 7036 has deemed it mandatory cause of action to resort to mediation before bringing the cases regarding the collective rights disputes to the court. Thus, the arbitrary mediation has become mandatory, as in the case of the collective interests disputes. To summarize the result of the thesis, one can say that the regulations regarding the mediation offered as a peaceful solution alternative with the enactment of the Turkish Law No. 6356 to strike and lockout in the collective interests disputes are insufficient and the deficiencies need to be reconsidered taking into account the evolving working conditions. Taking into account the new regulations on collective rights disputes, it is possible that different practices or new problems arise in the collective rights and interests disputes. By changing the provisions concerning the mediation in the Law No. 6356, and taking into consideration the regulations contained in the Labor Courts Law No. 7036 and the Law on Mediation in Legal Disputes No. 6325, and as a result of the joint work of the Ministry of Justice and the Ministry of Labor and Social Security, which will provide a complete picture of mediation for collective labor disputes, it can be said that the mediation provisions have been decided to be rearranged in accordance with the current conditions, with a new law to be prepared in detail without resorting to the regulations.
Açıklama
Anahtar Kelimeler
Arabuluculuk, Barışçı çözüm yolları, Toplu iş uyuşmazlığı, Türk hukuku’nda arabuluculuk ve çeşitleri, Uluslararası metinler ve bazı bölgelerde arabuluculuk uygulamaları, Mediation, Peaceful Solutions, Collective Labor Dispute, Mediation in Turkish Law and Types of Mediation in Turkish Law, International Texts and Mediation Practices in Some Countries
