5.  At the material time the applicant union, founded in 1955 with its registered office in Istanbul, represented workers in the food-processing sector. 6.  In 2003 a number of employees at three factories in Turgutlu (Manisa), Torbalı (İzmir) and Manyas belonging to the Tukaş Gıda Sanayi ve Ticaret public limited company (“the Tukaş company” or “Tukaş”), the main shareholder of which was the holding company OYAK (Ordu Yardımlaşma Kurumu, a pension fund for the armed forces), joined the applicant union. 7.  On 20 February 2004, arguing that the number of its members at the three factories had attained the minimum level set in the Trade Union Act (Law no. 2821; ...), the applicant union applied to the Ministry of Labour and Social Security (“the Ministry”) for certification of its representative status (yetki belgesi) so that it could enter into collective labour agreements with Tukaş on behalf of its members. 8.  In a decision of 26 May 2004 the Ministry granted the application and confirmed the applicant union’s representative status. On the basis of a report drawn up by labour inspectors on the nature of Tukaş’s activities and its labour force, the Ministry found that, in view of the number of employees belonging to the applicant union and the total number of staff at the three factories, which operated in the food-processing sector, the conditions laid down in the Trade Union Act (Law no. 2821) for engaging in collective bargaining were satisfied. It also stated that the staff at Tukaş’s head office belonged to the “business, computing, education and arts” sector. 9.  On 31 May 2004 Tukaş applied to the İzmir 3rd Labour Court for judicial review of the Ministry’s decision of 26 May 2004, submitting that the applicant union did not satisfy the requirements for engaging in collective bargaining. 10.  On 17 September 2004 the 3rd Labour Court appointed an expert to determine whether the applicant union’s membership attained the minimum level laid down in the Trade Union Act (Law no. 2821). 11.  On 13 November 2004 the expert submitted his report to the court. In it he noted that, according to a first approach taking into account the total number of Tukaş’s employees at its head office and its three factories, the applicant union did not have enough members to represent employees in collective bargaining. He pointed out that production planning for the factories on the basis of market demand, laboratory controls and analyses of product hygiene, taste and quality, product marketing and human resources management were all carried out at the company’s head office, that the activities of the three factories and the head office were “complementary” for the company and that they all came under the food-processing sector. Accordingly, a calculation of the company’s total number of employees  had to include the staff at both the head office and the three factories, and as a result, the applicant union was not sufficiently representative to engage in collective bargaining with Tukaş.
In his report the expert also noted that, according to a second approach excluding staff at the head office, the applicant union had a sufficient number of members at the three Tukaş factories to qualify as representative. 12.  The applicant union challenged the expert report before the Labour Court. It argued that, pursuant to section 60(17) of the Trade Union Act (Law no. 2821), employees at the Tukaş head office belonged to a different occupational sector, namely the “business, computing, education and arts” sector, and consequently could not form part of its membership. That being so, it contended that the expert report should not have included staff at the head office in its calculations. 13.  The Ministry asked the Labour Court to reject the application by Tukaş, arguing that its decision of 26 May 2004 authorising the applicant union to represent employees in collective bargaining with the company had been lawful. 14.  In a judgment of 2 December 2004 the İzmir 3rd Labour Court found in favour of the company and withdrew the applicant union’s representative status. It based its decision on the arguments set out in the first approach referred to in the expert report of 13 November 2004. It found that the activities carried out at the Tukaş head office were complementary to the activities at the company’s factories, and that they all came under the food-processing sector. Accordingly, it held that the applicant union’s members accounted for only 152 of the 443 Tukaş employees, a figure that was too low for the applicant union to qualify as representative in the light of the requirement for “the majority of a company’s employees” to be members. 15.  On 21 December 2004 the applicant union appealed on points of law and reiterated the observations it had made before the Labour Court. 16.  In a judgment of 22 March 2005 the Court of Cassation dismissed the applicant union’s appeal and upheld the first-instance judgment. The judgment was finalised on 15 April 2005. 17.  Meanwhile, at the start of 2004 Tukaş had invited employees who were members of the applicant union to cancel their membership on pain of dismissal. Some had complied but forty employees had refused. 18.  Shortly afterwards, Tukaş had dismissed the forty employees in question on economic grounds (market fluctuations) or for professional shortcomings (underperformance). 19.  In March 2004 the employees dismissed by Tukaş applied to the İzmir labour courts, claiming wrongful dismissal and seeking their reinstatement in the company. 20.  In judgments delivered between July and December 2004, different İzmir labour courts (nos. 1, 2, 3, 4 and 5) found in favour of the dismissed employees, holding that they had been dismissed on the grounds of their membership of a trade union. They observed that Tukaş had failed to persuade them that there had been any economic or performance-related reasons to justify the dismissals, which had therefore been wrongful. They ordered Tukaş to reinstate the dismissed employees, or failing that, to pay each of them compensation for wrongful dismissal equivalent to one year’s wages. 21.  In judgments delivered between December 2004 and June 2005 the Court of Cassation upheld the judgments of the İzmir labour courts. 22.  Tukaş did not reinstate any of the employees it had dismissed and paid them compensation as ordered by the labour courts. By 2005 the applicant union no longer had any members among the staff of Tukaş.
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