Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee also notes the observations provided by the Government on the 2011 comments of Education International (EI) and the Turkish Union of Public Employees in the Education, Training and Science Services (TÜRK–SEN), as well as those of the International Trade Union Confederation (ITUC). The Committee notes the comments submitted by the ITUC in a communication dated 31 July 2012, alleging notably several cases of violence against trade unionists, the sentencing and imprisonment of 25 teachers and one leather worker, as well as the prosecution faced by 111 workers for participating in a demonstration. The Committee also notes the communication of EI, dated 31 August 2012, alleging the arrest and imprisonment of members of the Confederation of Public Employees (KESK), the police raid of KESK offices and of KESK affiliate trade unions members’ houses, as well as police violence. The Committee recalls that in its previous observation it had also noted the comments submitted by EGITIM–SEN. The Committee requests the Government to provide its observations thereon.

Civil liberties. The Committee recalls that for a number of years it has been commenting upon the situation of civil liberties in Turkey. It has been observing with concern the allegations of important restrictions placed on freedom of speech and assembly of trade unionists, including numerous cases of violence against trade unionists, as well as arrests, again contained in the above-noted 2012 ITUC and EI communications. With regard to the EI 2011 communication alleging: (1) police searches in the KESK offices on 28 May 2009, the arrest of some members as a result, and the abroad travel ban imposed on those arrested, the Government states that the searches were limited to certain rooms and that a number of detained suspects were condemned to prison for being part of a terrorist organization by the High Penal Court on 28 November 2011, which therefore explains the travelling ban; (2) the search of the EGITIM–SEN office on 21 June 2011, where property was damaged and members were later taken into custody, the Government indicates that this search was within the scope of anti-terrorist activities, that no property was damaged and that the members’ lawyers were present during the custody and the searches; (3) the use by the police of tear gas against EI members attending a solidarity demonstration on 31 March 2010, the Government indicates that security forces were attacked with stones and sticks and several were injured as a result and that tear gas was used as one of the proportionate intervention tools; (4) the arrest, beating and injury of several EI members during a demonstration, the Government states that security forces intervened as they, along with police vehicles and public buildings, were attacked with stones and sticks; (5) several violations of freedom of speech and assembly (some demonstrations were not allowed for “security” reasons, or because there was no adequate place for them to be held, demonstration organizers have been imprisoned for not informing local authorities of the demonstration, and court cases have been launched against them for violating Act No. 2911), and that the right to peaceful demonstration may not be exercised in practice because of the intervention of the Government and the police, the Government confirms that several legal actions for violating Act No. 2911 have been launched. As to the ITUC’s allegation of judicial harassment, the Government indicates that all individuals have equal rights and responsibilities before the law no matter which position or title they have.

The Committee notes with concern the new allegations of restrictions placed on freedom of association and assembly of trade unions. In its report, the Government explains that arrests of trade union members were made because terrorist organizations have infiltrated non-governmental organizations to take advantage of the opportunities of these organizations in accordance with the demands of the terrorist organizations. No union or institution has been interfered with and the Government qualifies as unsubstantiated the claim that people are detained due to union actions. The Government indicates that regular training for prevention of disproportionate use of force is provided to riot police units and that 17,000 riot police are being trained annually, including on human rights compliance. Moreover, the Government indicates that a project on prevention of use of disproportionate force by police, conducted under the General Directorate of Education within the General Directorate of Security, started in September 2011 and is expected to be completed by the end of 2013. A directive to regulate the intervention principles of personnel deployed in social events entered into force on 15 August 2011. The Committee takes note of the measures taken by the Government. The Committee recalls that respect for civil liberties is an essential prerequisite to freedom of association and urges the Government to continue to take all the necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee also again urges the Government to review, in full consultation with the social partners, any legislation that might be applied in practice in a manner contrary to this fundamental principle and to consider any necessary legislative amendments or abrogation. It requests the Government to provide information on all measures taken in this respect and to send a copy of the Directive regulating intervention principles of personnel in social events. The Committee also requests the Government to carry out an investigation into the new allegations concerning all the cases of use of violence during police or other security force interventions and to provide information on the ongoing legal proceedings launched for violation of Act No. 2911.

Legislative issues. The Committee notes that Act No. 6289 on public servants’ unions and collective agreement, with significant amendments to Act No. 4688, has been adopted on 4 April 2012. The Committee welcomes the fact that this new Act addresses some of the issues raised by the Committee in the past, including lifting the exclusion to the right to form and join trade unions of public employees on probation. However, the Committee notes that the following provisions of Act No. 6289 are not in full conformity with the Convention:

Article 2 of the Convention:

• -Section 15 which prohibits several categories of workers, such as senior public employees, magistrates, civilian personnel in military institutions and prison guards, to establish and join a trade union.
• -Section 7(d) which requires to provide the place of residence of the founders of an organization in its statutes that must be submitted to the office of the Governor of the province in order to be incorporated.

Article 3. Election of representatives:

• -Section 10(8) which provides for the removal of union executive bodies in case of non-respect of requirements concerning meetings and decisions of general assemblies set out in the law upon application that can be made by the Ministry of Labour and Social Security.
• -Sections 33 and 34 which provide for the procedures for settlement of disputes by the Public Employees’ Arbitration Board and make no mention of the circumstances in which strike action may be exercised in the public service. The Committee recalls the need to ensure that cases in which strikes may be restricted or even prohibited are limited to those involving public servants exercising authority in the name of the State.

The Committee hopes that the Government, in full consultation with the social partners, will take the necessary measures to bring Act No. 6289 into full conformity with the Convention.

Supervision of organizations’ accounts (Associations Act No. 5253). The Committee had previously observed that section 35 of the Associations Act of 4 November 2004 provides that certain specific sections of this Act apply to trade unions, employers’ organizations, as well as federations and confederations, if there are no specific provisions in special laws concerning these organizations. In this respect, section 19 enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24-hours’ notice. The Committee notes the Government’s indication that no trade union has been audited and that financial reports, within the context of Act No. 2821, are submitted to the Ministry of Interior by trade unions. However, the Committee recalls once again that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 19 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure that verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members.

The Committee recalls that for a number of years it had been commenting on several provisions of Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strikes and lockouts. The Committee has been informed that the Collective Labour Relations Act, amending Act No. 2821 and Act No. 2822, has been adopted by the Parliament on 18 October 2012. The Committee notes in this regard the communication of the Confederation of Progressive Trade Unions of Turkey (DISK) of 30 October 2012 alleging that the new law brings no substantial change in promoting trade union rights and freedoms and even contains some arrangements which will exacerbate existing problems (for example, the double criteria requirement for gaining authorization to engage in collective bargaining has not been removed). The Committee requests the Government to provide a copy of this Act as well as to provide its observations with regard to the allegations of the DISK.

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 5253 and 6289 and expresses the hope that these amendments will take fully into account its comments above.