Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations made by the Turkish Confederation of Employers’ Associations (TİSK) and the International Organisation of Employers (IOE) received on 1 September 2014 and 28 August 2015. The Committee also notes the observations made by the Municipality and Private Government Employees’ Union (BEM-BIR-SEN) received on 30 April 2014 and the Government’s reply thereto; the observations from the All Municipality Workers’ Trade Union of Turkey (TUM YEREL-SEN) received on 30 October 2014 and the Government’s reply thereto; the observations from the International Trade Union Confederation (ITUC) received on 1 September 2014 and the Government’s reply thereto; and the observations of the Confederation of Public Employees’ Trade Unions (KESK) received on 1 September 2014 and the Government’s reply thereto. The Committee further notes the Government’s detailed replies to the Confederation of Progressive Trade Unions of Turkey (DİSK) observations received on 8 April 2013. It also notes the ITUC observations received on 1 September 2015. Finally, the Committee notes the observations from the TİSK, the Confederation of Turkish Trade Unions (TÜRK-İŞ), the Confederation of Turkish Real Trade Unions (HAK-İŞ), the DİSK, the Confederation of Public Servants’ Unions (MEMUR-SEN), the Confederation of Turkish Public Employees’ Union (Türkiye Kamu-Sen) and the KESK which the Government sent with its report and which the Committee will consider as soon as it receives the translation.

The Committee takes due note of the Government’s detailed reply to the allegations of violations of collective bargaining rights and cases of anti-union dismissals submitted by the ITUC in 2014 and requests the Government to reply to the ITUC’s more recent observations from 2015 alleging further violations of the Convention in practice.

Scope of the Convention. The Committee had previously requested the Government to clarify whether domestic workers were covered by the new legislation. The Committee notes the information provided by the Government, as well as by the TİSK and the IOE, in this regard and especially notes with interest the Government’s indication that domestic workers enjoy the rights set out in the Act on trade unions and collective bargaining agreements (Act No. 6356) of 7 November 2012, and that a domestic workers’ union was in fact registered on 13 February 2014 within the framework of the general works sector.

The Committee had also requested the Government to clarify whether the rights under the Convention had been afforded to prison guards. The Committee takes due note of the Government’s indication that the recent Constitutional Court rulings extending the right to organize to the civilian personnel of the police did not include prison staff. The Government adds however that prison staff are covered by collective agreements concluded in the public service. The Committee recalls in this regard its 2012 General Survey on the fundamental Conventions, paragraph 168, in which it has indicated that the right to organize and to bargain collectively also applies to prison staff. The Committee requests the Government to indicate the manner in which workers’ organizations representing prison staff may participate in negotiations of collective agreements covering their members.

In its previous comments, the Committee noted that Act No. 6356 introduced a requirement for the publication of the application and withdrawal forms relating to trade union membership on the e-State gate and requested the Government to provide information on the measures taken or envisaged to ensure that the e-State gate did not create an obstacle for the exercise of the rights guaranteed by this Convention. The Committee takes due note of the Government’s comments, as well as observations of the TİSK and the IOE, that the e-State system is simpler and easier than the earlier notary system, does not put a burden on either workers or their organizations, is free of charge and protects personal data. The Committee further notes the Government’s confirmation that the information available on the e-State gate is not public and therefore not subject to abuse. The Penal Code criminalizes the recording of personal data on trade union affiliation, as well as obtaining and disseminating such data unlawfully.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee once again recalls that the June 2013 Conference Committee on the Application of Standards had requested the Government to establish a system for collecting data on anti-union discrimination in the private sector and to provide information on the functioning of national complaints mechanisms and all statistical data related to anti-union discrimination in the private and public sectors. The Committee notes the Government’s indication that no system exists for collecting such data. The Committee also notes however the serious allegations of anti-union harassment raised by the KESK in relation to the Government’s use of the Basic National Education Act and the Regulations on the appointment of the directors of institutes of education, to discriminate against its members. The Committee requests the Government to reply specifically to the most recent observations of the KESK in this regard. In the light of the continuing concerns raised, the Committee once again requests the Government to establish a system for collecting data on anti-union discrimination (in both private and public sectors) and to provide information on the concrete steps taken in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

The Committee notes with interest the clarification brought by the Constitutional Court in a judgment handed down on 22 October 2014 which raises the fine that shall be payable for unjustified dismissal and further grants the right for workers to initiate legal proceedings for reinstatement should they consider that they were dismissed on anti-union grounds.

Article 4. Collective bargaining. In its previous comments, the Committee noted that section 34 of Act No. 6356 provided that a collective work agreement may cover one or more than one workplace in the same branch of activity, which, it considered, appeared to limit the right of workers’ and employers’ organizations to freely determine how and at what level to carry out collective bargaining. The Committee notes the Government’s indication that the Act has also introduced the possibility of concluding a “framework agreement” at the branch of activity level alongside enterprise level collective labour agreements. The Government adds that the use of this new means of bargaining and the experience to be gained will show the direction that the Turkish collective bargaining system might take in the future. The Committee therefore requests the Government to review the impact of section 34 of the Act and to consider, in consultation with the social partners, its amendment in a manner so as to ensure that it does not restrict the possibility of the parties to engage in cross-sector regional or national agreements. It requests the Government to provide information on the steps taken in this regard.

The Committee recalls its previous comments in relation to section 35(2) of Act No. 6356 which states that the parties cannot extend or reduce the validity of a collective agreement once signed. In this regard, the Committee takes due note of the Government’s indication that this provision does not restrict the right of the parties to a collective agreement to agree to make changes to its provisions, but rather restricts only the possibility of changing the agreement’s duration with a view to recognizing rival trade unions’ right to collective bargaining by imposing time limits to the duration of the agreement.

The Committee recalls that section 41(1) of Act No. 6356 sets out the following requirement for becoming a collective bargaining agent: the union should represent at least one per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. Reiterating its long-standing concerns related to the double threshold for collective bargaining which requires on the one hand representation at the branch level and on the other hand majority representation at the workplace, the Committee expressed the firm hope that the thresholds would be revised and lowered in consultation with the social partners. The Committee notes with interest the Government’s indication that Act No. 6356 was amended by Act No. 6645 of 4 April 2015 to provide the right to bargain collectively without meeting the abovementioned branch threshold for the following categories of trade unions: (i) trade unions which could not complete the transitional period; (ii) trade unions which fulfilled the 10 per cent threshold according to the statistics published in July 2009; and (iii) the abovementioned categories of trade unions which conclude labour agreements in other workplaces of the same branch of activity where they have a majority within one year after the entry into force of this provision. According to the statistics published by the Ministry of Labour and Social Security, the rate of unionization in the private sector rose from 9.21 per cent in January 2013 to 10.65 per cent in January 2015 and to 11.21 per cent in July 2015. According to the Government, this attests to the positive effects of the e-State gate.

Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold, accompanied by new methods of data collection on representativity, the Committee trusts that the Government will continue to review this matter with the social partners concerned, including as regards the impact of the thresholds on collective bargaining coverage. The Committee requests the Government to provide information on the steps taken in this regard and statistics related to collective bargaining coverage in the country.

In its previous comments, the Committee had noted that sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) provided for a variety of situations in which the certificate of competence to bargain may be withdrawn by the authorities (the failure to call on the other party to start negotiations within 15 days of receiving the certificate of competence; the failure to attend the first collective bargaining meeting or failure to begin collective bargaining within 30 days from the date of the call; failure to notify a dispute to the relevant authority within six working days; failure to apply to the High Arbitration Board; failure to take a strike decision or to begin a strike in accordance with the legislative requirements; and failure to reach an agreement at the end of the term of strike postponement). The Committee requested the Government to take the necessary measures to amend these provisions to avoid interference in the bargaining process. The Committee notes the Government’s indication that these measures are designed to ensure the bargaining process is completed in 120 days and that there is no restriction on the continuation of the negotiations between parties during strike action. The Committee requests the Government to provide information on any use of these sections and to continue to review their application with the social partners concerned with a view to their eventual amendment, favouring collective bargaining where the parties so desire.

As regards mediation, the Committee notes the Government’s indication that the favoured situation is where the parties agree on a mediator from an official list and the parties are under no obligation to accept the mediator’s proposals. The Committee requests the Government to provide information on any use of section 50(1) which permits a unilateral determination of the mediator where the parties have not been able to agree.

Collective bargaining in the public service. The Committee recalls that, with respect to Act No. 4688 as amended, it had requested the Government to ensure that: (i) the direct employer participates, alongside the financial authorities, in genuine negotiations with trade unions representing public servants not engaged in the administration of the State; and (ii) a significant role is left to collective bargaining between the parties. It had further recalled that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector was the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State. Observing that the Government has not provided any information in this regard, the Committee once again requests it to provide information on the measures taken or envisaged to ensure a significant role for collective bargaining with public servants not engaged in the administration of the State.

[The Government is asked to reply in detail to the present comments in 2017.]