Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the Government’s report.

Comments of workers’ organizations. The Committee takes note of the comments made by the following workers’ organizations: the Confederation of Turkish Public Employees Union (TURKIYE-KAMU-SEN) concerning, inter alia, government interference in trade union activities – ban of union-related booklets, posters, advertisements, calendars in some institutions (communication dated 9 February 2006), the Confederation of Turkish Trade Unions (TURK-IŞ) concerning issues relating to the right to strike (communication dated 17 April 2006), the Confederation of Progressive Trade Unions of Turkey (DISK) commenting on certain negative aspects of the draft Bills Nos. 2821 and 2822 (communication dated 9 June 2006). The Committee also notes the communication of the International Confederation of Free Trade Unions (ICFTU) concerning issues already raised and allegations concerning government interference in trade union statutes, and police violence and arrests of trade unionists during peaceful demonstrations (communications dated 12 July 2006 and 10 August 2006). The Committee notes the observations of the Government, dated 19 July 2006, regarding the communication of TURKIYE-KAMU-SEN, as well as those of 19 October 2006, regarding the communication of DISK and those of 17 October 2006, regarding the communication of the ICFTU. Noting the seriousness of these allegations concerning acts of violence, the Committee recalls that the right of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee notes the Government’s indications that, as these allegations concern private enterprises, the gathering of information will take time and that the plaintiff may lodge complaints concerning discrimination incompatible with trade union rights. The Committee expresses the hope that the Government will take the necessary measures to conduct investigations with respect to the allegations concerning acts of violence and requests the Government to send its observations on all pending comments.

The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2303 (see 342nd Report, June 2006) concerning inter alia the amendments to Trade Unions Act No. 2821 and Collective Agreements, Strike and Lockout Act No. 2822.

New Acts. The Committee notes the adoption of a new Associations Act No. 5253, enacted in 2004 and replacing Act. No. 2908, and a new Penal Code. The Committee will examine these texts once it has the translation at its disposal.

Draft bills. In its previous comments, the Committee noted that drafts with modifications to Act No. 4688 on public employees’ trade unions (amended by Act No. 5198), Trade Unions Act No. 2821, and Collective Labour Agreements, Strike and Lockout Act No. 2822 were under preparation. The Committee notes that the Government indicates that consultations with the social partners are continuing.

Furthermore, the Committee noted with interest that the draft bills amending Acts Nos. 2821 and 2822 contained improvements in the application of the Convention and thereby addressed some of the questions raised by the Committee: (1) the removal of two conditions of eligibility for the election of trade union officers: the condition of nationality and the condition of at least ten years of employment (Act No. 2821, section 14, paragraph 14); (2) the abrogation of the provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37, paragraph 3); (3) the abrogation of the provision under which the Governor is entitled to appoint an observer at the general congress of a trade union (Act No. 2821, section 14, paragraph 1); (4) the removal from the list of activities where strikes are prohibited of the following activities: the production of lignite coal for thermal plants; public notaries; sea and land transport or railway, and other rail transport (Act No. 2822, section 29); urban public transportation on land, sea or rail; lignite production to feed power plants; exploration, production, refining and distribution of petroleum; petrochemicals the production of which is based on naphtha or natural gas; (5) the removal of the prohibition of unions’ television and radio stations which results from Act No. 3984; (6) the exclusion of unions from the scope of section 43 of Associations Act No. 2908, which provides that associations are allowed to invite any foreigner to Turkey or send one of their members abroad, provided due notification is given in advance to the Governor.

However, a number of concerns had remained valid and related to:

Article 2 of the Convention. 1. The exclusion from the right to organize of a number of public employees (sections 3(a) and 15 of Act No. 4688). The Committee notes that the Government indicates in its report that criticism made with respect to sections 3(a) and 15 will be taken into consideration when Act No. 4688 is under review and that the Tripartite Consultation Board unanimously agreed in its meeting on 19 May 2005 on the need to make amendments to the said Act in order to allow public servants to form or join unions during probation period. Furthermore, the Committee notes that, in its reply to one of TURKIYE-KAMU-SEN’s comments, the Government indicates that all public servants except the employees having “worker” status are covered by Act No. 4688, as stipulated in its article 2 (workers employed in the public sector have the same rights as private sector workers since they are covered by Acts Nos. 2821 and 2822); however, article 15 of Act No. 4688 recognizes the right to organize of those public servants who are not employed in the judiciary, security or central supervision cadres and not engaged in the administration of the State. The Committee recalls that, under section 3(a), the definition of “public employee” refers only to those who are permanently employed and have finished their trial periods. With respect to public officials, the Committee recalls that, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union. The Committee notes from the Government’s report that the tripartite consultation board unanimously agreed on the need to amend Act No. 4688 in order to allow public servants to form or join unions during probation. Section 15 lists categories of public employees who are prohibited from joining trade unions. The Committee underlines that Article 2 of the Convention provides that workers without distinction whatsoever should have the right to form and join organizations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. It follows, in particular, that the right to organize of public employees cannot hinge on the duration of their contract of employment. As regards public employees “in position of trust”, the Committee recalls once again that it is not compatible with the Convention to exclude totally these public officials from the right to organize. On the other hand, to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: first, that the officials concerned have the right to form their own organizations to defend their own interests; and, second, that the category of the employees concerned is not so broadly defined as to weaken the organizations of other public employees by depriving them of a substantial proportion of their actual or potential membership. The Committee requests the Government to ensure that the legislative reform under way takes into account the abovementioned concerns, so that all workers, without distinction whatsoever, have the right to form and join an organization of their own choosing and requests the Government to keep it informed of the progress made in this regard.

2. The criteria under which the Ministry of Labour determines the branch of activity covering a worksite (unions must be constituted on a branch activity basis) and the implications of such determination on the workers’ right to form and join organizations of their own choosing (sections 3 and 4 of Act No. 2821). In its report, the Government indicates that classification of the work under a branch of activity takes into account international standards and the views of workers’ and employers’ confederations. The parties concerned by the decision of the Ministry of Labour may take legal action against the decision at the local labour court and its ruling may be appealed at the court of cassation. The Government indicates in its report that the draft bill on trade unions has fewer branches of activity in order to make a more rational classification and pave the way to much stronger trade unions. The Committee recalls that it 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 requests the Government to specify the criteria on which a particular worksite is classified in a given branch of activity. The Committee further requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2.

Article 3. 1. The detailed provisions of Acts Nos. 4688, 2821 and 2822 in respect of the internal functioning of unions and their activities. The Committee notes the Government’s report indicating that the rationale behind the detailed provisions of Acts Nos. 4688, 2821 and 2822 is to ensure the democratic functioning of the unions and to protect the rights of their members. The Government indicates that, nevertheless, draft bills Nos. 2821 and 2822 will make legislation less detailed. The Committee recalls that legislative provisions, which go beyond formal requirements, may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. The Committee trusts that this issue will be taken into account in the draft legislation and requests the Government to keep it informed in this respect.

2. The removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688). The Committee notes the indication in the Government’s report that only a judicial verdict can have the effect of removing a union executive. The Committee considers that workers’ organizations may organize their administration and activities without any interference by public authorities on grounds which are incompatible with Article 3. The Committee requests the Government to take the necessary measures to amend section 10 of Act No. 4688 to enable workers’ organizations to determine freely whether union officials may remain in their post during their candidacy or election in local or general elections.

3. The right to strike in the public service (section 35 of Act No. 4688). The Committee recalls that section 35 of Act No. 4688 makes no mention of the circumstances in which strike action may be exercised in the public service. The Committee notes that the Government indicates that constitutional amendment is required for the review of restrictions on the right to strike of public servants. The Committee underlines that restrictions to the right to strike in the public service hinge solely on the functions carried out by the public employees concerned. Thus, restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term (see General Survey, op. cit., paragraphs 158 and 159). Where the right to strike is prohibited or limited in a manner compatible with the Convention, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee requests the Government to take the necessary measures to ensure that the abovementioned principles are respected.

4. The right to strike under Act No. 2822. The Committee recalls that it has commented on several occasions on certain provisions of Act No. 2822 concerning the right to strike and which are incompatible with the Convention: section 25 prohibiting strikes for political purposes, general strikes and sympathy strikes (furthermore, article 54 of the Constitution which contains similar prohibitions further prohibits occupation of work premises, go-slow strikes and other forms of obstruction); section 48 placing severe limitations on picketing; sections 29 and 30 prohibiting strikes in many services which cannot be considered to be essential in the strict sense of the term and section 32 under which compulsory arbitration at the request of any party may be imposed in the services where strikes are prohibited; sections 27 (referring to section 23) and 35 providing for an excessively long waiting period before a strike can be called. The Committee notes in this regard that, according to the Government, this waiting period from the beginning of the negotiations until the strike begins is considerably shortened under the draft bill amending Act No. 2822, being now of a maximum of 30 days and 45 days if the parties have recourse to mediation; sections 70-73, 77 and 79 providing for heavy sanctions, including imprisonment, for participating in “unlawful strikes” the prohibition of which, however, is contrary to the principles of freedom of association. In this respect, the Committee notes that the Government indicates that some of the restrictions on the right to strike, such as those mentioned in section 25, require a constitutional amendment. However, several restrictions will be lifted with the amendment of Act No. 2822. The Committee requests the Government to keep it informed of the progress made in adopting the draft bill amending Act No. 2822.

The Committee requests the Government to ensure that all issues raised above be addressed and that the final draft bills and the future legislation will be in full conformity with the Convention. Furthermore, the Committee requests once again the Government to transmit a copy of the new draft modifying Act No. 4688. The Committee once again recalls that ILO technical assistance is available in this regard should the Government so desire.

Other questions. 1. In its previous comments, the Committee had requested the Government to provide information concerning the measures taken so as to ensure that article 312 of the Penal Code which provides for imprisonment for “inciting hatred” is not applied to trade unionists carrying out legitimate trade union activities. In its report, the Government indicates that article 312 has been replaced by articles 215, 216 and 218, and that these articles (both old and new) apply to every person who commits acts of praise for a crime committed or criminal persons, incitement to hatred and enmity of one group of people against another, and insult to one part of the population, regardless of his/her status or trade union function. They are not related to legitimate trade union activities and do not apply to trade unionists who exercise the right to organize their legitimate union activities.

2. Concerning the lawsuit against DISK in respect of the election of its representatives, the Committee notes that the Government does not provide concrete information in this respect. In these circumstances, the Committee requests the Government to take the necessary measures to withdraw this lawsuit.

Furthermore, the Committee notes the communication of the Confederation of Public Employees’ Trade Unions (KESK) dated 2 September 2006 on the application of the Convention. The Committee requests the Government to send its observations concerning KESK’s communication.

The Committee is raising a number of other points in a direct request addressed directly to the Government.