Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Türkiye (Ratification: 1993)

With reference to its observation, the Committee requests that the Government provide further information on the following points.

The Committee takes due note of the comments of the Government to the effect that article 51 of the Constitution provides for reasonable grounds on which the right to organize can be restricted and that in practice no restriction has occurred under this provision. The Committee must nonetheless once again recall that the broad wording of certain grounds - i.e. general health and morals and the protection of the freedom of others - on which the restrictions can occur under article 51 of the Constitution could potentially give rise to unacceptable restrictions in respect of the rights under the Convention. It therefore requests the Government to consider amending article 51.

Article 2 of the Convention. 1. (a) In its previous comments, the Committee had requested the Government to take the necessary measures so as to guarantee the full exercise of their rights in accordance with the Convention of the following categories of workers: foreign workers, private security personnel and homeworkers (under Act No. 2821), apprentices (under Act No. 3308) and contract personnel. The Committee notes the general comment of the Government to the effect that the review of Act No. 2821 will be undertaken by the tripartite commission in charge of a series of legislative reforms and that the issues raised by the Committee in respect of this Act and Act No. 3308 have been transmitted to the commission. The Committee once again requests the Government to indicate in its next report the measures taken or envisaged so as to ensure that each category of workers mentioned above enjoy the full exercise of the right to organize, in accordance with Article 2 of the Convention.

(b) The Committee notes with interest that article 51 of the Constitution was also amended so that, in particular, the founders of a union are no longer required to submit information and documents to the competent authority designated by the law. The Committee notes on the other hand that such requirement remains valid under section 6 of Act No. 4688 and section 6 of Act No. 2821. It further notes that these sections permit governors to apply to the labour court to prevent an organization from continuing its activities if it is deemed that the documents submitted do not fulfil the conditions set out in the law or if they are incomplete. The Committee trusts that the relevant provisions of both Acts will be brought in line with article 51 as amended, so as to avoid any risk of undue interference in the establishment of occupational organizations and to fully ensure in practice the right of workers to establish organizations of their own choosing. In the meantime, the Committee requests the Government to provide indications on the practical application of the abovementioned provisions of Act No. 4688 and Act No. 2821. In particular, the Committee requests the Government to indicate whether clear instructions have been issued to the governors to whom the information is submitted, to the effect that, under these Acts, they do not have authority to interfere in the establishment of the trade unions; should they consider that the establishment of a particular trade union is contrary to the law, they must apply to the labour courts which would then decide, as the case may be, on the suspension or the dissolution of the trade union concerned.

(c) The Committee also notes that article 51 of the Constitution has been amended to provide that "membership in more than one labour union cannot be obtained at the same time and in the same work branch". Assuming that this amendment will now permit workers employed in more than one occupational activities to have the right to belong to the trade unions corresponding to each of their activities if they so wish, the Committee trusts that the Government will take the necessary measures to amend section 14 of Act No. 4688 accordingly. Further, the Committee requests the Government to clarify whether section 22 of Act No. 2821 allows membership in several unions when pertaining to different branches of activity. The Committee requests the Government to provide the necessary information in its next report.

(d) The Committee notes the comment of the Government to the effect that, under section 14 of Act No. 4688, there is no formal condition for public officials - and in particular the intervention of a notary public is no longer required - to become a member of a trade union or to resign from it. The Committee trusts that sections 22 and 25 of Act No. 2821 will be amended so as to fully ensure the right of workers freely to join organizations of their own choosing.

(e) The Committee notes the comments of the Government on section 4 of Act No. 4688 under which public officials are not allowed to establish organizations on an occupational and workplace basis, and that no information was provided in respect of section 3 of Act No. 2821 which contains an identical prohibition and in respect of which the Committee has drawn the attention of the Government on several occasions. The Committee would like once again to recall that the right to join the organization of one’s own choosing includes the free determination of the level of representation. The Committee therefore requests the Government to repeal from section 4 of the Act No. 4688 and section 3 of the Act No. 2821 the prohibition concerning the establishment of trade unions on an occupational or workplace basis.

(f) With reference to the conclusions of the Committee on Freedom of Association in Case No. 2126, the Committee notes that, in accordance with section 3 of Act No. 2821, trade unions shall be constituted on branch activity basis and that, in accordance with section 4 of Act No. 2821, "the branch of activity covering a worksite shall be determined by the Ministry of Labour". The Committee considers that the setting up of broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions is not in itself incompatible with the Convention. On the other hand, the Committee considers that this classification, and its modification, should be determined according to specific, objective and pre-established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee therefore requests the Government to indicate in its next report the criteria on which the Ministry of Labour makes the determination under section 4 and to provide any text governing this determination. Further, as regards workers who, by reason of a decision taken under section 4, have lost their right to be represented by the trade union Dok Gemi-Is which they had freely chosen, the Committee trusts that the Government will take the necessary measures so as to restore to these workers their right to establish and join the organization of their own choosing. It requests the Government to keep it informed in this respect.

(g) With reference still to the conclusions of the Committee on Freedom of Association in Case No. 2126, the Committee notes that, under section 12 of Act No. 2822, a dual criteria - representation of at least 10 per cent of the workers in a given branch of activity and more than half of the workers employed in the worksite or each of the work sites to be covered by the collective agreement - applies for the recognition of the right to conclude a collective agreement. The Committee notes from the indications given by the Government in its report on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that it intends to lift the 10 per cent criteria but that reforms have not been finalized in this respect due to continuing consultation with social partners. The Committee also notes from the indications given by the Government in its report that the Act is also due to be examined by the tripartite commission in charge of labour legislative reforms. Considering that trade unions which do not fulfil the dual criteria should not in practice be totally deprived of the essential means for defending the occupational interest of their members, and thus that the right of workers to join the organizations of their own choosing should be fully guaranteed, the Committee requests the Government to provide information on the practical application of section 12, pending further development in amending Act No. 2822.

2. (a) In respect of public officials, the Committee requests the Government to provide a copy of the regulations which were adopted following Act No. 4688, and published on 9 November 2001, and which apparently specify further the Act in respect of the establishment of trade unions in the public service. Further, with reference to section 14 of the Act which provides that copies of public officials’ application for membership of trade unions should be sent to the Ministry of Labour and Social Security, the Committee requests the Government to provide clarifications on the role of the Ministry of Labour and Social Security in the determination of the number of members of a trade union.

(b) The Committee notes the comments of the Government concerning the condition provided under section 6 of Act No. 4688 to the effect that a public official must have been in employment for two years to become a founder of a union: this condition is linked to a probationary period of two years to which each public official is subjected. The Committee would like nonetheless once again to reiterate that the right to freely establish a union under Article 2 applies to all workers without distinction and does not hinge on their particular status of employment. The Committee therefore requests the Government to repeal the condition concerning the founders of unions from section 6.

(c) In its previous comments, the Committee had noted that, under section 3(g) of Act No. 4688, a confederation must be constituted at least of five unions from different sectors. The Committee had requested the Government to provide information on the practical application of section 3(g) and to amend it in the case it restricted the right of public officials to affiliate with the confederation of their own choosing, including in the private sector. The Committee notes with regret that the Government has not provided information on this matter and requests it to indicate the measures taken or envisaged to ensure that public sector unions may join confederations of private sector unions.

Article 3. (a) In its previous comments the Committee had noted that the amendment to section 14 of Act No. 2821, providing for a precondition for election of union officers concerning years of employment, hinged on an amendment to article 51 of the Constitution. The Committee notes with interest that the precondition concerning ten years of active employment has been repealed from article 51. The Committee therefore trusts that section 14 of Act No. 2821 will be amended accordingly so that the right of workers’ organizations to elect their representatives in full freedom will be effectively guaranteed.

(b) In its previous comments the Committee had requested the Government to provide clarification on section 18 of Act No. 4688 and, in particular whether this provision imposed an obligation on union officers to take unpaid leave when elected. The Committee notes from the report of the Government that there is indeed an obligation for public officials who are elected as union officers to take unpaid leave. The Committee further notes from the indication given by the Government that the same obligation applies to a number of branch officers under certain conditions and that the officers concerned will be determined by the general assembly of the organization. While the Committee notes that according to the Government the aim of this obligation is to enable union officers to carry out their activities freely, it must underline that such an obligation may prevent some public employees from presenting their candidacy in the union executive bodies and that thus the right of workers’ organizations to elect freely their representatives is not fully guaranteed under Act No. 4688. In these circumstances, the Committee requests the Government to amend section 18 so as fully to guarantee the rights of public servants’ organizations under Article 3 of the Convention.

(c) The Committee notes from the report of the Government that the comments it has made in relation to the provision of Act No. 3984 prohibiting unions’ television and radio stations have been transmitted to the tripartite commission. The Committee requests the Government to keep it informed of any measures taken to ensure that unions may organize their administration and activities without interference by the public authorities.

Article 4. The Committee notes the comments of the Government in respect of section 54 of the Law on Associations, which is referred to in section 37 of Act No. 4688. According to the Government, governors do not have the power to dissolve a union but they can decide to suspend the activities of an association. This decision should be submitted within 48 hours to a court; if it is not submitted in a timely fashion to the court, it shall cease to have effect. While section 37 of Act No. 4688 is a particular aspect of a more general question - i.e. the impact of the Law on Associations on the organization, the functioning and the activities of the trade unions which the Committee has raised in its observation - the Committee would like to recall, that if the legislation allows dissolution or suspension of trade unions by the administrative authority, the latter’s decision should not take effect until a final decision is handed down by the judicial authority; further, the organizations must have the right of appeal to an independent and impartial judicial body (see General Survey on freedom of association and collective bargaining, 1994, paragraph 185). While noting that the Governor’s decision to suspend a trade union ceases to have effect if it is not timely submitted to the courts, the Committee requests the Government to amend section 37 of Act No. 4688 so that such a decision will not have any effect on the trade union activities and thus to ensure that the suspension and the dissolution of trade unions can occur only through a final decision rendered by a judicial authority with all due judicial safeguards. Further, the Committee requests the Government to indicate in its next report specifications on the procedure followed by the courts in such instance.

Article 5. The Committee notes that, according to the information provided by the Government in its report, section 43 of Act No. 2908 has been amended by Act No. 4748 and that an association may invite any foreigner to Turkey or may send one of its members abroad at the invitation of a foreign institution, provided due notification is given in advance to the Governor. The Committee requests the Government to provide information on the practical application of section 43 as amended and, in particular, to indicate whether the notification to be provided to the Governor is merely a formal requirement or whether the Governor may approve or disapprove any activities in this respect.