Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK), received on 31 August 2020, of the International Trade Union Confederation (ITUC), received on 16 September 2020, Education International (EI), received on 1 October 2020, and the Government’s detailed replies thereon. The Committee further notes the observations of the Confederation of Public Servants Trade Unions (MEMUR-SEN) and of the Confederation of Turkish Trade Unions (TÜRK-IS), communicated with the Government’s report. The Committee notes the Government’s reply to the observations submitted by the TÜRK-IS. The Committee finally notes the observations of the Turkish Confederation of Employer Associations (TİSK), received on 29 September 2020.

Scope of the Convention. In its previous comments, the Committee had noted that while the prison staff, like all other public servants were covered by the collective agreements concluded in the public service, this category of workers did not enjoy the right to organize (section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688)). The Committee had requested the Government to take the necessary measures, including legislative review, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee notes that the Government reiterates that it is forbidden to this category of public servants to establish and join trade unions due to the nature of their work and considerations of public order and safety, discipline and hierarchy, which are overarching principles in the public service administration. Recalling that all public servants not engaged in the administration of the State or those who are members of the armed forces or the police, defined in a restrictive manner, must enjoy the rights afforded by the Convention, the Committee once again requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee requests the Government to provide information on all measures taken in this respect.

Further noting that the MEMUR-SEN points out to the need to ensure freedom of association and collective bargaining rights to locum workers (teaches, nurses, midwives, etc.) as well as public servants who work without a written contract of employment, the Committee requests the Government to provide its comments thereon.

Articles 1 and 3 of the Convention. Adequate protection against anti-union discrimination. Following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference (hereafter, the Conference Committee), the Committee has been requesting the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors. The Committee notes the Government’s indication that it is currently not possible to obtain reliable data on the cases of trade union discrimination. In this respect, the Government points out the difficulties with carrying out data collection, which include the length of judicial processes and the need to make considerable arrangements in the records and databases of various institutions. The Government indicates that it is necessary to carry out work with all relevant institutions and organizations on the issue of discrimination and that these institutions have to develop their own database infrastructure and recording systems to detect trade union discrimination. The Committee notes this information and underlines the importance of statistical information for the Government to fulfil its obligation to prevent, monitor and sanction acts of anti- union discrimination. The Committee reiterates the June 2013 request of the Conference Committee and expects that the necessary work will be conducted within each relevant institution to that end. The Committee requests the Government to provide in its next report information on the measures taken in this respect. The Committee notes the TISK indication that the social partners are committed to work together in this respect. The Committee recalls that the Government can avail itself of the technical assistance of the ILO in this regard.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. In its previous comments, the Committee had noted the information on the high number of suspensions and dismissals of trade union members and officials under the state of emergency. It had noted in this respect the allegation that the state of emergency was used by the political power to target and punish certain trade unions and to exert pressure on oppositional trade unions through dismissals of their members. Firmly hoping that the Inquiry Commission (established to review such dismissals) has the necessary means to examine the relevant facts, the Committee had requested the Government to provide information on the functioning of the Commission and to indicate the number of applications received from trade union members and officials, and the outcome of their examination. The Committee had also requested the Government to provide information on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials. The Committee notes the Government’s indication that as of 2 October 2020, there were 126,300 applications submitted to the Inquiry Commission. Since 22 December 2017, the Commission delivered its decisions in respect of 110,250 applications, out of which, 12,680 were accepted (for reinstatement) and 97,570 were rejected while 16,050 applications are still pending. The Government explains that the decision of the Commission are circulated to the institutions where the persons lastly took office, which then carry out the appointments together with the Council of Higher Education, where relevant. The Government further indicates that an annulment action against the decision of the Commission and the institution or organization where the relevant person lastly tool office may be brought before any of the six Ankara Administrative Courts within a period of sixty days as from the date of notification of the decision. The Government points out that there is no statistical information available on the number of trade union members or officials who have applied to either the Inquiry Commission or Ankara Administrative Courts.

The Committee recalls that it had previously noted that according to the ITUC 2019 observations, more than 11,000 KESK representatives and members were suspended from their jobs or dismissed because of their trade union activities and requested the Government to provide its comments thereon. The Committee notes that in its most recent observations, KESK points out that close to 89 per cent of all applications are rejected by the Commission and alleges that the examination of cases involving its members is postponed. The Committee further notes that the Government reiterates that given the higher rate of positive decisions in relation to KESK members (one in three, which is above the average rate), KESK allegations are unfounded. The Government further denies that measures imposed on KESK members were based on anti-union grounds and refers to the legislative provisions providing protection against acts of anti-union discrimination.

Further in this respect, the Committee notes the EI allegations that: during the state of emergency period, 1628 members of the Education and Science Workers Union of Turkey (EĞİTİM SEN) were dismissed from the public service by virtue of Decrees with the force of law; only 12.7 per cent of files pertaining to this union members have been examined, among which 126 applications were rejected and only 79 accepted; and as of May 2020, 1178 EĞİTİM SEN members were still without employment. While noting the Government’s reply that the acceptance rate for reinstatement of EĞİTİM SEN (38,5 per cent) is much higher than the average rate (11,5 per cent), the Committee expresses its concern at the allegation that close to 75 per cent of the dismissed EĞİTİM SEN members are still without employment. The Committee requests the Government to provide its comments thereon.

While taking note of the general statistics provided by the Government, as well as the detailed information in which it recalls the reasons for the state of emergency, the Committee regrets once again the absence of specific information on the number of trade union members and officials involved. The Committee notes with concern the high number of rejection cases (currently 88.5 per cent) and further regrets the absence of information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials.  The Committee reiterates its firm hope that the Inquiry Commission and the administrative courts that review its decisions carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds. The Committee once again requests the Government to provide specific information on the number of applications received from trade union members and officials, the outcome of their examination by the Inquiry Commission and on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials.

Article 1. Anti-union discrimination in the course of employment. The Committee recalls the observations of KESK and the EĞİTİM SEN, alleging that hundreds of their members, mostly in the education sector, were transferred against their will from their workplaces in 2016 (at least 122 transfers, mainly for participation in trade union activities and events) and in 2017 (1,267 transfers, 1,190 of whom from the education sector). The Committee had requested the Government to take the necessary measures to prevent the occurrence of anti-union transfers and demotions in the future, and to ensure that if any anti-union discriminatory measures remained in force, they were revoked immediately. The Committee notes the most recent KESK allegations concerning relocation of its members, termination of their contracts and suspensions for having exercised their trade union rights, as well as administrative investigations launched by employers. It further notes the ITUC allegations of trade union busting at various enterprises and the Government’s detailed reply thereon. The Committee notes that the Government denies any discrimination against legitimate trade union activities of any trade union organization and emphasizes that under the national legislation, no dismissal or suspension can take place because of a legitimate trade union activity or trade union affiliation. The Government points out that the protection of the legislation against anti-union discrimination in both public and private sectors are further strengthened and adjudicated through the judicial system that includes individual application to the Constitutional Court and the European Court of Human Rights against violation of fundamental rights and freedoms by public authorities. Referring to the KESK allegation of relocation, the Government points to the legislation applicable to public service, which allows for relocation if the needs of the service require. The Committee takes note of the observations submitted by workers organizations and the detailed information provided by the Government. The Committee requests the Government to continue engaging with the social partners regarding complaints of anti-union discrimination practices in both the private and public sectors.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. It noted in this respect that pursuant to section 34 of Act No. 6356, collective work agreement may cover one or more than one workplace in the same branch of activity, thereby making cross-sector bargaining in the private sector impossible. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 in a manner so as to ensure that it does not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes the Government’s indication that section 34 of the Act was drafted taking into account the views of the social partners. The Government indicates that this provision regulates the scope and level of collective bargaining with a view to protect and strengthen workplace peace and that the legislation in question does not restrict collective bargaining to the level of workplace but allows also the enterprise and group level bargaining as well as framework agreements. The Committee notes the TISK indication that because of the sectoral characteristics and the difficulties to compile all of them in a single agreement, inter-sectoral or national agreements are not favoured by the social partners. While taking note of these explanations, the Committee recalls that in accordance with Article 4 of the Convention, collective bargaining should remain possible at all levels and that the legislation should not impose restrictions in this regard. The Committee therefore once again requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 so as to ensure that the parties in the private sector wishing to engage in cross sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 initially set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 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. It further recalls that the 3 per cent threshold was decreased to 1 per cent by Act No. 6552 of 10 September 2014 and that additionally, section 1 of Act No. 6356 stipulating that the 1 per cent membership threshold should be applied as 3 per cent with regard to trade unions that are not members of confederations participating in the Economic and Social Council was repealed by the Constitutional Court. Therefore, the 3 per cent branch threshold was reduced to 1 per cent with regard to all trade unions. Furthermore, the Committee recalls that until 6 September 2018, legal exemptions from the branch threshold requirement were granted to three categories of previously authorized trade unions, so as to prevent the loss of their authorization for collective bargaining purposes. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold and noting that the exemption granted to the previously authorized unions was provisional, the Committee had requested the Government to indicate whether the exemption had been extended beyond 6 September 2018, and the impact of the decision made in this regard on the capacity of previously authorized organizations to bargain collectively. It had further requested the Government to continue reviewing the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners, and should it be confirmed that the perpetuation of the 1 per cent threshold had a negative impact on the coverage of the national collective bargaining machinery, revise the law with a view to its removal.

The Committee recalls that the Government had previously pointed out that Act No. 6356 was drafted in consultation with the social partners and taking into consideration the universal principles regarding trade union rights and freedoms. Following the entry into force of the arrangements outlined in the Act, the Government proceeded to obtain the views and evaluations of the social partners. While some of the social partners asked for the continuation of the branch level threshold, others were of the view that it needs to be reduced or abolished; there was no agreement on this issue. The Government had indicated, however, that should a consensus be achieved on this matter, steps would be taken to make the necessary arrangements.

The Committee notes the Government’s indication that the provisional exemption of the branch of activity threshold requirement was extended until 12 June 2020 by Act No. 30799, published on 12 June 2019. The Government indicates that following publication of the Act, the exempted trade unions concluded collective agreements. The Committee notes the TISK indication that the exempted trade unions have been given a significant opportunity to increase their membership. However, following three consecutive extensions, most of the unions in question have not reached the branch level threshold. The TISK indicates that there was a consensus among the social partners for the discontinuation of the exemption. Noting that the provisional exemption has expired on 12 June 2020, the Committee requests the Government to indicate if further extension has been decided and if not, to provide information on the impact of the non-extension on the capacity of previously authorized organizations to bargain collectively and to indicate the status of the collective agreements concluded by them. It also requests the Government to continue monitoring the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

With regard to the workplace and enterprise representativeness thresholds, in its previous comments, the Committee had noted section 42(3) of Act No. 6356, which provides that if it is determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence. It had further noted section 45(1), which stipulates that an agreement concluded without an authorization document is null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee had requested the Government to take the necessary measures to amend the legislation, in consultation with the social partners, and to provide information in this respect. The Committee notes that the Government refers to its previous indication that: (1) the issue of the amendment of the collective bargaining system was discussed with the social partners but no model could be agreed upon by everyone; and that (2) it would consider the proposal for the amendment to the legislation if put forward by the social partners and if such a proposal represented a consensus. The Committee recognizes that while the search for a consensus with regard to collective bargaining is important, it cannot constitute an obstacle to the Government's obligation to bring the law and practice into conformity with the Convention. The Committee therefore once again requests the Government to amend the legislation so as to ensure that if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. It requests the Government to provide information on all measures taken or envisaged in this regard.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had previously noted that section 28 of Act No. 4688, as amended in 2012, restricts the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government reiterates its previous indication that the demands of the unions and their confederations that do not fall within the category of financial and social rights are received and considered at the other, more appropriate platforms established beside collective bargaining. The Committee is therefore bound to once again recall that public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee wishes to further recall however, that the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, as long as the authorities respect the agreement adopted. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the collective agreements concluded in the public service. In this respect, the proposals for the general section of the collective agreement were prepared by the confederation members of PSUD and the proposals for collective agreements in each service branch were made by the relevant branch trade union representative member of PSUD. The Committee had also noted the observation of the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN), indicating that many of the proposals of authorized unions in the branch were accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprived the branch unions from the capacity to directly exercise their right to make proposals. Noting that although the most representative unions in the branch were represented in PSUD and took part in bargaining within branch-specific technical committees, their role within PSUD was restricted in that they were not entitled to make proposals for collective agreements, in particular where their demands were qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. The Committee notes that the Government refers to its previous indication that collective bargaining is held every two years in order to discuss the issues that concern service branches and general issues together. On that occasion, collective bargaining offers for all service branches are determined separately by the authorized trade unions having the highest number of members in that service branch. Naturally, the proposals of the trade unions are determined exclusively for the service branches due to the differences in the service branches and the public servants within the scope of those branches and discussed in the special committees established separately for the service branches by the Heads of PED and PSUD.  Considering that where joint bodies within which collective agreements must be concluded are set up, and the conditions imposed by law for participation in these bodies are such as to prevent a trade union which would be the most representative of its branch of activity from being associated in the work of the said bodies, the principles of the Convention are impaired, the Committee again requests the Government to ensure that Act No. 4688 and its application enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State.

Collective bargaining in the public sector. Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employees’ Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had noted that seven of the 11 members of the Board including the chair were designated by the President of the Republic and considered that this selection process could create doubts as to the independence and impartiality of the Board. The Committee had therefore requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Committee notes that the Government refers to its 2019 report in which it confirms that in addition to the Head of the Board, its five other members with knowledge in public administration, public finances and public personnel regime, as well as one member among the academics proposed by the competent confederations, are appointed by the President. The Committee requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

[The Government is asked to reply in full to the present comments in 2021.]