Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Türkiye (Ratification: 1952)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, by the Confederation of Public Employees’ Trade Unions (KESK) in communications dated 20 August 2009 and 28 August 2010, and by the Turkish Public Workers Labour Union (TÜRKIYE KAMU-SEN) in a communication dated 15 September 2009. The Committee requests the Government to provide its observations thereon in its next report.

While the Committee notes the observations provided by the Government on the comments made by the ITUC in a communication dated 29 August 2008, it regrets that no observations have been provided by the Government on the comments previously made by KESK in a communication dated 1 September 2008, and by DISK in a communication dated 2 September 2008. The Committee once again requests the Government to provide its observations thereon.

The Committee notes that the Government’s report on the application of the Convention has not been received.

The Committee notes that an ILO high-level bipartite mission visited the country in March 2010 pursuant to a request by the Conference Committee on the Application of Standards in 2009. The Committee further notes the draft Law on Trade Unions amending Acts Nos 2821 and 2822, prepared by a “scientific committee” appointed by the Ministry in 2009.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous observation, while taking due note of legislative provisions introducing dissuasive sanctions against acts of anti-union discrimination (sections 118 and 135 of the Penal Code No. 5237, and section 18(2) of Act No. 4688), it observed that the ITUC referred to the widespread incidences of acts of anti-union discrimination in the public and private sectors, such as transfers of public employees who are trade union members or officers, interference in the activities of public sector trade unions by the Government as employer, and blacklisting and pressure to quit the union in the private sector. The Committee notes with concern that similar allegations were submitted by KESK in its communications. In view of the absence of the Government’s reply thereon or any other information provided by the Government in this respect, the Committee once again requests the Government to indicate in its next report the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee expresses the firm hope that the Government will take all necessary measures to ensure that the provisions of the Convention in this regard are applied both in law and in practice.

The Committee had previously requested the Government to update the sanctions provided for under sections 59(2) (non-reinstatement of trade union officers) and 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 and to ensure that the compensation afforded to a trade union officer who wishes to return to his/her post and is not reinstated for anti-union reasons has a dissuasive effect. The Committee notes in this respect that section 24 of the draft Law on Trade Unions would appear to address the issue previously raised by the Committee with regard to adequate compensation for acts of anti-union discrimination as it proposes to provide, in addition to the compensation provided for under the Labour Law (No. 4857), for a compensation of not less than the worker’s annual wage. With regard to the non-reinstatement of a trade union officer who wishes to return to his/her post, section 22 of the draft merely indicates that, while calculating the compensation, the employment period in the workplace shall be taken into consideration, as well as the wage and other rights enjoyed by the worker prior to termination. The Committee considers that compensation established solely pursuant to this criterion would not constitute a sufficiently dissuasive sanction against an employer. The Committee therefore requests the Government to review the draft Law on Trade Unions so as to further amend the relevant sections of Act No. 2821.

Article 4. Free and voluntary collective bargaining. The Committee recalls that it has previously expressed the hope that the Government would take the necessary measures to amend section 12 of Act No. 2822 so as to ensure that, where no union meets the 50 per cent membership criterion, the existing unions at the workplace or enterprise may bargain at least on behalf of their own members regardless of whether they are affiliated to a confederation or not. The Committee notes that, while section 39 of the new draft Law on Trade Unions, amending section 12 of Act No. 2822, proposes to abolish the requirement of affiliation to a major confederation in order for a union to be able to engage in collective bargaining at the workplace level, the proposed amendment maintains the requirement that unions should represent the majority of workers in a workplace (50 per cent plus one) in order to enter into negotiations with the employer with a view to concluding a collective agreement. The Committee once again recalls that in such systems, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members. The Committee therefore requests the Government to review the draft Law on Trade Unions so as to further amend section 12 of Act No. 2822.

Collective bargaining in the public service. The Committee recalls that for a number of years it has been raising the issue of collective bargaining in the public service covered by the Public Servants Trade Unions Act, No. 4688. The Committee notes that Law No. 5982 amending the Constitution, enacted by the Grand National Assembly on 7 May 2010, entered into force after being approved by the electorate in the referendum held on 12 September 2010. The Committee notes with satisfaction that pursuant to this Law, the following provisions of the Constitution were amended:

–      article 53 further amended so as to add the following paragraph: “public servants and other public employees have the right to conclude collective agreements. The parties may apply to Reconciliation Board if a dispute arises during the process of collective agreement. The decisions of the Reconciliation Board shall be final and have the force of a collective agreement. The scope of and the exceptions to the right of collective agreement, the persons to benefit from and the form, procedure and entry into force of collective agreement and the extension of the provisions of collective agreement, as well as the organization and operating procedures and principles of the Reconciliation Board and other matters shall be laid down in law”;

–      article 53 so as to repeal paragraph 3 which restricted autonomy of the parties in collective bargaining; and

–      article 128(2) so as to provide that “the qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other manners related to their status shall be regulated by law, without prejudice to provisions on collective agreement concerning financial and social rights”.

Regarding Act No. 4688, the Committee notes the Government’s explanation provided to the June 2010 Conference Committee that the constitutional amendment would be followed by the relevant legislative amendments. The Committee notes that the above-noted constitutional amendments appear to address some of the issues it had previously raised in respect of Act No. 4688 and, in particular, with regard to section 28, which limited the scope of negotiations to financial questions, and section 34, which allowed the possibility of modification of collective agreements signed by the parties, by the authorities.

The Committee takes note of the Government’s indication concerning the forthcoming legislative amendment of Act No. 4688 and trusts that this Act will be soon amended so as to ensure that public servants enjoy full collective bargaining rights and not just the right to hold “collective consultative talks” as currently established. The Committee trusts that the amended legislation would further address the following points it had previously raised: (i) if the legislation is to provide for the direct employer to participate in genuine negotiations with trade unions representing public servants not engaged in the administration of the State, the need to ensure that a significant role is left to collective bargaining between the parties; (ii) the need to guarantee clearly within the legislation that negotiations cover not only financial questions but also other conditions of employment; (iii) the need to clearly guarantee that the legislation does not give the authorities, in particular the Council of Ministers, the power to modify or reject collective agreements in the public sector; and (iv) the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that currently provided for (currently 15 days under section 34).

The Committee further once again recalls that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State who are excluded from this right and, therefore, from the right to be represented in negotiations (as addressed in the comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)).

The Committee urges the Government to engage in ongoing assistance with the ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688, and expresses the hope that the final texts will take fully into account its comments above. It requests the Government to transmit the relevant legislative texts or proposed drafts thereof with its next report.