Termination of Employment Convention, 1982 (No. 158) - Türkiye (Ratification: 1995)

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative stated that in its report for the year 2001, the Committee of Experts, while reviewing various dimensions of existing labour legislation in Turkey, had criticized a draft amendment on job security submitted to it, on grounds of the inconsistencies between the said draft and the pertinent Articles of Convention No. 158. As a matter of fact, this draft bill prepared by the Ministry of Labour last year was also criticized by union leaders and employers as well as academicians within Turkey who claimed that it did not meet the requirements of the job security model foreseen by Convention No. 158. Taking these criticisms and the views expressed by the Committee of Experts into consideration, the Ministry of Labour formed a commission in February 2001, composed of nine academicians, and entrusted to this commission the drafting of a new bill which would ensure full compliance with the Articles of the Convention. The commission included three academics elected by the Government, three by the Turkish Confederation of Employers' Associations (TISK) and three by the labour confederations (TÜRK-IS, HAK-IS and DISK), each one appointing its own representative. Although serving different parties, these academicians were known for their neutral and objective views on labour issues. At the outset, the social partners made a full commitment to accepting the final text which the said commission would produce. In the meantime, the Government withdrew its first draft from the legislative process. After deliberations in its various meetings, this nine-member commission reached compromise solutions and prepared a new draft bill through the joint efforts of its members. This unique experiment was the first of its kind in Turkish labour relations, reflecting features of a successful social dialogue at this level. This new draft, which was in full compliance with the Convention, had now been submitted for the approval of the Council of Ministers which was expected to refer it soon to the remaining procedures of the legislative process. After its enactment, the Government would certainly be pleased to submit it to the ILO.

The Committee of Experts had observed in its report that the draft submitted to it by the Government did not provide any clarity as to the requirement of "valid reasons" for termination. The new draft, adopted by the unanimous decision of the commission's members, filled this void by stating clearly that the employer contemplating to terminate a worker employed under a permanent contract with an unspecified term, must depend on a valid reason regarding the capacity or conduct of the worker, or based on the operational requirements of the undertaking, establishment or service. On the issue of prohibited grounds that, inter alia, could not constitute valid reasons for termination, the new draft had enumerated the following: (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) acting or having acted in the capacity of, or seeking office as, a workers' representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, political opinion, national extraction or social origin; (e) absence from work during maternity leave during which female workers must not be engaged in work, as foreseen in the Labour Act No. 1475; (f) temporary absence from work due to illness or accident, in the waiting period envisaged by the Labour Act No. 1475.

Concerning the Committee of Experts' observation that legislation should ensure workers an opportunity to defend themselves before termination of employment, the new draft had addressed this issue by providing that the employer should give the notice of termination in written form, stating the reasons for termination in clear and precise terms. Furthermore, the employment of a worker could not be terminated for reasons related to the worker's conduct or performance before he was provided with an opportunity to defend himself against the allegations made, unless the employer could not reasonably be expected to provide this opportunity. The new draft provided that the burden of proving that termination was based on a valid reason rested on the employer.

With regard to the Committee of Experts' remark that adequate remedies should be ensured and awarded in cases of unjustified dismissals, the new draft called for remedies for the worker seeking redress through appeal mechanisms, either before the labour court or arbitration. If termination had been declared invalid, the remedies included reinstatement, or compensation, to be not less than the worker's six months' wages and not more than the total of his annual wages.

In cases of terminations for the worker's "serious misconduct" or "improper behaviour", the proposed amendment foresaw the same remedies if termination was found unjustified, that is, reinstatement or compensation. Furthermore, stronger remedies had been provided for terminations due to the worker's union membership, participation in union activities and for union representatives (shop stewards), i.e. reinstatement or at least the worker's total annual wages. For certain categories who fell outside the scope of the Labour Act by definition, the new draft brought the same protections as for those who were covered against terminations due to union membership or participation in union activities.

As the Committee of Experts had noted, a social security reform package which included unemployment insurance was approved by Parliament in August 1999. At present, therefore, workers in Turkey enjoyed a satisfactory severance pay system as well as unemployment benefits. With the incorporation of Convention No. 158 into the Labour Act, as embodied in the new draft, they would be covered by a full-fledged social protection system.

Regarding the Committee of Experts' observations concerning the inadequate status of measures for collective redundancies in Turkey, the new draft had foreseen amendments which were fully in line with the Convention. The amended version of section 24 on collective dismissals provided for clear-cut definitions and strict notification requirements, as well as consultations with trade unions or workers' representatives on measures to be taken to avert or to minimize the terminations or to mitigate their adverse effects on workers.

The speaker brought to the Committee's attention a new law on the structure and functions of the Economic and Social Council which was enacted in April 2001. Thus, the Economic and Social Council, which was administered by government circulars since 1995, had now been given a stronger legal status. Moreover, according to the recently published National Programme in which the Government of Turkey had committed itself to harmonizing national norms and practices with those of the European Union, the passage of job security legislation was the short-term goal which must be realized within one year, at the latest.

Tripartite social dialogue to which Turkey attached great importance would continue to play a significant role in the implementation of the reforms envisaged by the National Programme, as evidenced by the experiment of the aforementioned nine-member commission, the recently enacted Law on the Economic and Social Council and the proposed consultation mechanisms involving workers' representatives.

As these recent examples of progress showed, and despite the various economic difficulties faced by the coalition Government during the last two years, Turkey had again demonstrated its commitment to bring its labour relations system into conformity with ILO standards. In this connection, the speaker thanked the ILO once again for its pioneering work in paving the way for more social progress in his country.

The Employer members mentioned at the outset that the report of the Committee of Experts contained only one case on this Convention, maybe due to the fact that only 33 States had ratified it. Regarding the general observation made by the Committee of Experts in which it urged governments to consider ratifying the Convention and to seek information or assistance from the Office, the Employer members wondered whether such observations of a legal/political nature fell within the mandate of the Committee of Experts. The task entrusted to the Experts was to examine the extent to which governments complied with their obligations regarding the implementation of ILO standards in particular, Conventions that had been ratified. When the Governing Body considered the matter in March 2001, there had been no agreement as to whether the ratification of this Convention should be recommended to member States. For this reason the Employer members had doubts about the appropriateness of the abovementioned observation and considered that it went beyond the competence of the Committee of Experts. Over the last 20 years, this Committee had addressed matters related to Turkey more than 18 times mostly with regard to Conventions Nos. 98 and 87. Turkey had ratified Convention No. 158 in 1995 and a few years later the first representation under article 24 of the ILO Constitution was made by the Confederation of Turkish Trade Unions (TÜRK-IS). The basis for the examination by the Committee of Experts was the government report covering the period from mid-1997 to end of 1999, and the November 2000 discussion in the Governing Body of the representation made under article 24 of the ILO Constitution. The point of departure was a draft amendment to Labour Act No. 1475 (1971). The first question was whether the draft reflected the term "valid reason" in accordance with Article 4 of the Convention. The draft amendment stated that an employer would have to provide a "clear reason" for dismissal. This did not seem to be an important legal issue. It was more important to look at the manner in which the provision was used in practice. The second point related to the prohibited grounds for dismissal mentioned in Article 5 of the Convention. The list of prohibited grounds did not necessarily have to be included in the national legislation as it was not exhaustive nor exclusive. The Article used the words "in particular" and therefore provided examples. In this respect, it was more important to examine how the requirement of a clear reason applied in practice. More information on this point might have been useful. The experts also had doubts regarding dismissal on grounds of personal behaviour for deliberate acts or serious misconduct, and wondered whether it made sense to introduce responsibility for a three or four-day absence from work. Even in such cases, Article 7 called for employers to provide the possibility of appeal against unjustified dismissal. In this respect, the experts had noted that no cases of appeal to courts had been cited in the Government's report. This requirement did not relate to Article 7, but to Article 8 which indicated that one could make an appeal in several fora including courts or arbitration. However, it was not necessary to examine the details as the Government member had explained that the previous draft had been amended by a commission of experts. The new draft appeared to be quite different and the employers noted with interest the information provided orally by the Government representative. However, it was not a common practice to carry out an ad hoc examination, and it was up to the Committee of Experts to examine the text after it had been submitted in writing. This Committee could examine this issue at a later stage if necessary. As to the conclusions, they should ask the Government to submit the text as soon as possible in order to establish whether any observations were to be required for the future. For the time being, on the basis of the facts presented to the Committee, it seemed that all points raised by the Committee of Experts had been met, but this would have to be established at a later stage.

The Worker members thanked the Government member for the information that he had provided. He had indicated that bearing in mind the few ratifications, the application of Convention No. 158 was rarely discussed in the Committee. On that subject, the Committee of Experts had made a general observation that year emphasizing the need to ratify it. The objective of Convention No. 158 was to strike a balance between workers and employers' rights. While employers should have the right to make decisions about employment in their company, workers should enjoy protection against unfair or unjustified dismissal. The loss of a job had serious repercussions on the life of a worker and his family because it could mean insecurity and, indeed, poverty. The Governing Body had expressed an opinion on the application of Convention No. 158 ratified by Turkey in 1995, following a representation submitted by the Confederation of Turkish Trade Unions. The observations of the Committee of Experts in that case concerned failure to observe and violation of several provisions of the Convention. In the case of Article 4 of the Convention, Labour Act No. 1475 did not require a valid reason to be given for dismissal, and the same applied to the Maritime Labour Act and the Journalists' Labour Act as well as other workers not covered by those laws. Furthermore, under Article 5 of the Convention, the legislation should contain a list of grounds which were not considered valid reasons for dismissal. In addition, the legislation did not ensure workers an opportunity to defend themselves against allegations invoked by the employer as grounds for dismissal, which was contrary to Article 7 of the Convention. Finally, the concept of serious misconduct was defined too broadly in the national legislation, which meant that in practice a large number of workers were deprived of a period of notice of dismissal, which meant that Article 11 of the Convention was not applied. The Worker members indicated that other violations were worthy of comment; nevertheless, it was already clear that Turkey was not applying the Convention which it had ratified in 1995. The existence of a Bill which would answer some of the points raised was to be welcomed. It would not, however, resolve others. Under those circumstances, the Government should be called on to make the necessary amendments to the Bill in order to bring its legislation into conformity with the Convention with a minimum of delay.

The Worker member of Turkey stressed that the Committee had before it a very good example of the effective guidance of the ILO in securing significant progress in protective labour legislation and social peace. The draft Bill which had been prepared by the Ministry of Labour and submitted to the Council of Ministers in September 2000 for final review before being passed on to the Legislative Assembly was far short of fulfilling the requirements of the Convention. The workers were not satisfied with this. In November 2000, the final report of the Governing Body on the workers' representation under article 24 of the ILO Constitution was issued, followed by the report of the Committee of Experts. These reports were effective. Through social dialogue, the Ministry of Labour reopened the draft Bill for discussion and the final outcome was a text which fulfilled, except for some shortcomings, the requirements of the Convention. The Bill was presented to the Council of Ministers for final evaluation on 28 May 2001. The Government had also undertaken, in the framework of the agreement it had signed with the speaker's confederation two weeks ago, to take the necessary steps for the rapid promulgation of the Bill. The provision of job security through the enactment of this Bill was included in the immediate obligations of Turkey in the national action plan concerning accession to the European Union. The speaker stressed that in the preparation of the Bill, there was an atmosphere of tripartite social dialogue supported by the contributions of the legal advisers. He noted with satisfaction that the President of the Turkish Confederation of Employers' Associations had openly stated that the employers would endorse and support a Bill that was prepared in harmony with Convention No. 158. Making his comments on the Bill, he indicated that its scope was limited to workers with a labour contract under the Labour Act only, thus excluding workers under the Maritime Labour Act, the Journalists' Labour Act and some other groups of workers. Additionally, workers in enterprises employing less than ten workers were outside the scope of this draft. A seniority of six months was required as well. Moreover, the job security of shop stewards was curtailed. He hoped that the shortcomings would be minimized during the legislative process. In spite of these and some other shortcomings, the Bill met the requirements of the Convention considerably. This was an achievement of the ILO supervisory bodies and the ILO tradition of tripartite consultation supported by legal advice. Finally, the speaker hoped that the Government would have the same attitude to social dialogue and respect for ratified ILO Conventions in bringing its legislation into full harmony with the rights guaranteed by Conventions Nos. 87 and 98 and, in particular, the right of public servants to organize, strike, and bargain collectively. He urged this Committee to acknowledge the very positive development concerning Convention No. 158 and encouraged the Government of Turkey to accelerate the legislative process.

The Employer member of Turkey stated that this was the second draft amendment to the Labour Act No. 1475 (1971) which was necessary since the first draft of 1999 was not in accordance with the requirements of the Convention and had been severely criticized by the Turkish Labour Law experts. A second draft had therefore been prepared and as a whole it was in conformity with the Convention. The Turkish Minister of Labour and Social Justice had submitted the second draft to the Office of the Prime Minister and it was believed that it would be adopted by Parliament. However, this draft did not have the full support of both social partners because it took over the rigid provisions of the Convention and lacked flexibility. The Turkish Employers' Association agreed with measures to protect the workers against unjustified dismissals. However, they had also demanded that provisions be adopted concerning severance pay as the currently existing level of compensation in case of unjustified dismissal dated back to a time when there was no unemployment insurance and no legal protection against unjustified dismissal. The present system of compensation placed a heavy burden on the employers. Therefore, the draft Bill was incomplete and provisions on reduced amounts of severance pay had to be adopted. The commission which had prepared the draft legislation had in fact submitted two texts to the Minister: the first concerned protection against unjustified dismissal; and the second reviewed severance pay provisions. However, the Minister only considered the first draft and completely disregarded the second. The Turkish trade unions reacted to any revision of severance pay and wished to maintain the existing system of compensation. The employers did not wish to abolish severance pay but to reform it in order to attain fair and equitable levels. Article 12 of the Convention provided not just severance allowance to workers but also unemployment benefits. In the view of the employers, protection against unjustified dismissal, severance compensation and unemployment benefits formed a comprehensive system. Therefore, the draft Bill should contain provisions concerning not only protection but also compensation and assistance. The Turkish Employers' Association was in disagreement with the Government on this issue.

The Worker member of Germany underlined the crucial importance of Convention No. 158 to workers. The Committee of Experts' report had extensively covered inconsistencies between the Convention and the law and practice in Turkey. He noted with interest the statement of the Government member. The new draft amendment was a good example of fruitful tripartite consultations. The Government needed to take all necessary measures to adopt the draft Bill and ensure that all inconsistencies were eliminated in practice. Two further aspects were of particular importance. First, laws on security of employment should apply to all branches of economic activity in accordance with Article 2 of the Convention. Second, according to the draft Bill, trade union representatives did not have a claim to reinstatement in the event of unjustified dismissal and only had a claim for compensation. The possibility of reinstatement was crucial to workers as this guarantee fell within the general context of trade union rights and was related to Conventions Nos. 87 and 98. Therefore, in addition to noting with satisfaction the progress made, it was important to ensure the full application of all aspects of the Convention.

The Worker member of Senegal said that Convention No. 158 and its Recommendation had the same objective and were important for security of employment, an essential aspect of the body of standards. The validity of the reason invoked in the case of dismissal was a crucial element of Article 4 of Convention No. 158. Article 17 of the Labour Act No. 1475 provided, in particular, that a worker could be dismissed without notice "if the worker has contracted a disease or suffered an injury ... ". It should be underlined that the provision clearly stated that disease was a reason for dismissal, which was in conflict with Article 6, paragraph 1, of Convention No. 158 which provided that: "temporary absence from work because of illness or injury shall not constitute a valid reason for termination". Although the draft amendment submitted by the Government stated that an employer must provide a clear reason for dismissal, it did not require the validity of the reason invoked to be evaluated on the basis of the criteria contained in the Convention. Furthermore, the draft amendment did not include the right for the worker to defend himself against dismissal. The speaker requested that another Bill should be drawn up in consultation with the social partners, taking into account the principles of social dialogue and tripartism. It should also reflect the spirit of Convention No. 158.

The Worker member of New Zealand underlined that it was important to support successful social dialogue and the resolution of this case which concerned natural justice requirements for the protection of workers against arbitrary and unfair dismissal, namely the right to know the reason for the intended dismissal (Article 4) and the right to defend oneself against allegations of misconduct (Article 7). Given the seriousness of the potential breaches, it was particularly pleasing that the ILO supervisory mechanism had led to social dialogue between the Government of Turkey and the social partners and that substantial progress had been recorded. The speaker therefore endorsed the comments made by the Turkish Worker member and shared the hope that the cooperative spirit of social dialogue would result in law and practice in Turkey being brought into full compliance with the Convention and would enable other outstanding issues relative to Conventions Nos. 87 and 98 to be successfully addressed.

The Worker member of Austria agreed with most speakers that the draft Bill covered virtually all points raised by the Committee of Experts and expressed his hope that all discrepancies would be remedied. With reference to the statement made by the Employer member of Turkey, Convention No. 158 did not cover the level of compensation and the issue of severance pay was not relevant in this context. The conclusions should welcome the rapid introduction of the Bill to Parliament and the rapid conclusion of the process. The draft amendment was a demonstration of a well-functioning social dialogue which should be sustained in view of the country's efforts to become a member of the European Union.

The Employer member of Turkey indicated that the intervention made by the Government member did not reflect the real situation because there were two draft laws which had been prepared at the same time, although they had been submitted separately, and had been considered as interdependent. The first draft related to the protection of workers against dismissals and was in conformity with the Convention, while the second draft related to the severance compensation. However, only the first draft had been submitted to the Prime Minister's Cabinet, in spite of the fact that the attention of the Minister of Labour and Social Security had been drawn to the abovementioned remark. It was worthwhile to underline that the severance compensation which was calculated on the basis of 30 days or 59 days for some collective agreements, played an essential role for the protection of workers. He concluded that the Turkish Confederation of Employers' Associations (TISK) had proposed the preparation of a new draft law on severance compensation in order to safeguard the vested rights of workers, and ensure the application of the Convention.

The Government representative referred to certain points made by members of the Committee. Regarding the comments of the Worker member of Turkey, he pointed out that Article 2(2) of Convention No. 158 allowed the member State to bring a certain seniority period in order to be entitled for coverage. With regard to the allegation that only workers covered by the Labour Act No. 1475 were covered by this draft Bill, the speaker pointed out that other workers were also covered in the event of dismissal on account of union membership or activities. Concerning the comments made by the Worker member of Germany, he pointed out that, if the termination was unjustified, the remedy was reinstatement. However, if reinstatement was not possible for practical reasons, the level of compensation was determined by national law which stipulated a minimum of six months' wages and a maximum of one year's salary. In the event of termination on account of trade union membership activities, then compensation was much higher and should not be less than the worker's total amount of annual wages. While working on the draft Bill, the Commission of Academicians also took account of the current severance pay as well. The Minister found the two drafts acceptable; however, both parties, workers and employers, were opposed to the draft on severance pay for different reasons. Upon this development, the Minister submitted only the draft Bill on job security to the Prime Minister's office.

The Employer members noted that new information had been provided to the Committee from the Government member and the Employer and Worker members of Turkey and that all agreed that the requirements of Convention No. 158 would be met once the draft Bill had been adopted. This was a positive development. In response to the comment made by the Worker member of Austria, the Employer members agreed that the Convention did not provide for compensation in case of justified dismissal. This point would have to be dealt at the national level. Finally, it was not really appropriate to make demands concerning the application of Conventions Nos. 87 and 98 on the day when the Committee was discussing Convention No. 158, especially as this practice had occurred in the past. As far as the conclusions were concerned, they would have to be formulated in a positive manner. All parties had expressed a positive view, and this should be reflected in the conclusions.

The Worker members welcomed the draft law under discussion which would bring significant improvements to the legislation on termination of employment. In spite of the divergent views between the social partners, the draft seemed to need further amendments in order to be in full conformity with the provisions of the Convention. The Worker members invited the Government to adopt the draft law as soon as possible while taking into account the abovementioned remarks.

The Committee took note of the information supplied by the Government member and the subsequent debate. It also took note of the conclusions relating to the representation, submitted under article 24 of the ILO Constitution, adopted by the Governing Body in November 2000. It also noted with interest the existence of a draft text which had been drafted, in tripartite consultations, to bring the legislation into conformity with the Convention. The Committee expressed the firm hope that in the very near future it would be in a position to confirm real progress in the application of the Convention. It requested the Government to submit a detailed report to be examined at the next meeting of the Committee of Experts for the purposes of evaluating progress.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TISK), communicated together with the Government’s report. It further notes the observations of the Confederation of Progressive Trade Unions of Turkey (DISK), received on 1 September 2022. The Government is requested to provide its comments in this respect.

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Committee notes the information provided by the Government with respect to the application of section 11 of Law No. 4857, on “Fixed-term and indefinite employment contracts”, which provides safeguards against abusive recourse to fixed-term employment contracts. The Government indicates that, pursuant to section 11, an employment contract is deemed to have been made for an indefinite period where the employment relationship is not based on a definite period (a fixed term). The Government adds that a fixed-term contract is one concluded in written form which is for a specified duration or is based on objective conditions, such as the completion of a specific task or the occurrence of a certain event. In its observations, the TISK indicates that section 11 of Law No. 4857 establishes extremely difficult conditions for the conclusion of fixed-term employment contracts, to prevent abusive recourse to such contracts. The Government also refers to section 12 of Law No. 4857, which provides that an employee working under an employment contract for a definite period shall not be subjected to differential treatment in relation to a comparable employee working under an employment contract for an indefinite period. In addition, the Committee notes the court decision communicated by the Government, holding that a fixed-term contract cannot be concluded in the absence of an objective reason justifying the fixed-term nature of the employment. The Committee further notes that, pursuant to section 11, fixed-term contracts may be concluded more than once where an “essential reason” exists, in which case successive employment contracts will retain their status as fixed-term contracts. In this context, the Committee notes the Government’s indication that, according to section 11 and the established case law of the Cassation Court, it is not necessary for the “essential reasons” invoked in each of the successive fixed-term contracts to be the same. Lastly, the Committee notes that the Government has not provided information with respect to the application in practice of section 11, including information on the total number of fixed-term contracts and contracts of indefinite duration. Noting that section 11 of Law No. 4857 permits the use of successive fixed-term employment contracts where an objective reason persists or a new reason emerges, the Committee requests the Government to provide detailed updated information on the manner in which section 11 is applied in practice, particularly in relation to preventing abusive recourse to successive fixed-term contracts including copies of decisions of the Cassation Court or other judicial bodies that have interpreted this provision. The Government is further requested to provide detailed information, including statistical data, on the impact of section 11 in preventing abuses in the use of fixed-term contracts of employment. Additionally, the Committee reiterates its request that the Government provide data on the total number of fixed-term employment contracts compared with employment contracts for an indefinite duration concluded during the reporting period.

Article 2(4)–(6). Categories of employees excluded from the scope of the Convention. The Committee once again recalls that section 18 of Law No. 4857 excludes from its employment protection provisions: workers employed in businesses employing less than 30 workers; workers with less than six months’ employment; and workers in managerial positions. The Committee notes the extracts provided by the Government from collective agreements concluded in enterprises employing fewer than 30 workers, which explicitly refer to the Convention and provide for the worker to receive compensation in the event of unfair dismissal or dismissal without valid cause. Lastly, the Committee notes the statistical data provided by the Government on the number of enterprises employing fewer than 30 employees and the number of insured workers employed by these enterprises. According to the data provided, as of the first quarter of 2022, less than half—42.8 per cent—of those working in enterprises with less than 30 workers were insured. The Committee further notes the Government’s reference to the Decision of the Supreme Court of Appeals General Assembly No. 2017/2903E. and 2021/1837K.

The Government also recalls that section 17 of the Labour Law provides that if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the amount of wages they would have received during the notice period, plus compensation in lieu of notice if the notice period was not respected. In its observations, TİSK refers to the Turkish Code of Obligations, Law No. 6098, which is applicable to jobs and workers outside the scope of the Labour Law. Notably, according to the section 438, if the employer terminates the service contract immediately without lawful reason, the worker may demand compensation at the amount of the termination notice period for indefinite contracts or the amount the worker would have earned if the periods had been complied with for fixed-term contracts. The Government mentions the decision of the Supreme Court of Appeals General Assembly No. 2017/2903E. and 2021/837. The Court ruled that, labour protection provisions, in this case the protection against fixed-term contracts, can only be put forward by the employees and therefore the employer cannot argue that the employment contract is indefinite. The Committee also notes that relatively large number of workers are excluded from the scope of the Turkish Labour Law, according to the data provided by the Government indicating that the number of insured employees in workplaces with fewer than 30 workers is 8,248,571 in 2022 (43 per cent of all insured workers). The Committee requests the Government to provide additional information, including extracts from court decisions relevant to the manner in which it is ensured that workers excluded by section 17 of Law No. 4857 are provided equivalent protections to those afforded by the Convention. In particular, the Committee requests the Government to continue to provide updated information on the application of the Convention in small and medium-sized enterprises that may be excluded from the employment protection provisions of the Labour Law, including statistical data on the number of establishments employing fewer than 30 workers in comparison with other establishments, and examples of court decisions that have examined allegations of bad faith dismissals, including in small and medium-sized enterprises with less than 30 employees.

Article 10. Remedies in case of unjustified termination. The Committee notes the Government’s reference to case law awarding the compensation of payment in the amount of three times the worker’s wages during the notice period as provided for in section 17 of Law No. 4857. Additionally, the Government points to the exceptions set out in section 4 of the Law, which exclude from the application of the Law enterprises in the agriculture, forestry and domestic work sectors that employ less than 50 employees. It nevertheless indicates that employees working in these enterprises are covered under the Code of Obligations. In its observations, the DISK points out that cases brought by workers for reinstatement take some four to five years to complete and even where the court concludes that the dismissal was unjustified, employers are not required to reinstate the worker. The DISK indicates that only one per cent of workers who win their complaints for unfair dismissal are reinstated. Nor can the worker benefit from unemployment insurance until the conclusion of the court procedure, so that they are not able to access the benefit when they most need it, immediately after their dismissal. Moreover, the DISK indicates that the compensation in lieu of reinstatement is only four months’ salary, which is inadequate to deter employers from unjustifiably dismissing workers. The DISK alleges that it is common for employers to dismiss workers to prevent workers from organizing at the workplace. The Committee requests the Government to provide updated detailed information on the manner in which those workers excluded from application of the provisions of the Convention pursuant to section 4 of Law No. 4857 are provided with adequate compensation or such other relief as may be deemed appropriate, in the event of unjustified termination, as required under Article 10 of the Convention.

Seafarers. In response to the Committee’s previous comments, the Government indicates that section 14 of Maritime Labour Law No. 854 on “Annulment and Dissolution without Precedent” includes provisions regarding the termination of the employment contract by the employer or employer’s representative, or the seafarer. In this context, the Government refers to Decision No. 2012/7542E. and 2019/20331K. of the 9th Civil Chamber of the Supreme Court of Appeals. In that case, a seafarer working within the scope of Law No. 854, demanded severance pay and other indemnities, alleging that he had terminated his employment contract in accordance with the law, after his wages were not paid in their entirety. The employer maintained that the worker was not entitled to severance pay because his termination was unfair, alleging that the worker’s overtime and holiday pay were paid by accrual, that he was covered by the provisions of the collective agreement and had received a meal card in accordance with the agreement. The case was dismissed by the lower court on the grounds that the termination of the employment contract by the worker for just cause could not be proven. Following appeal, the Supreme Court ruled in favour of the worker, finding that the working hours were not disputed by the parties, and that the worker had in fact worked overtime. On this basis, the Supreme Court held that the worker had correctly terminated his employment contract due to non-payment of overtime, in accordance with section 24/II-e of Labour Law No. 4857. The Committee requests the Government to provide updated information in relation to protections afforded to seafarers against unjustified dismissal, including copies of relevant court decisions that may have been issued in this respect.

[ The Government is asked to reply in full to the present comments in 2024.]

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TISK), communicated together with the Government’s report. It further notes the observations of the Confederation of Progressive Trade Unions of Türkiye (DISK), received on 1 September 2022.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that, at its 341st Session in March 2021, the ILO Governing Body approved the report of the tripartite committee set up to examine the representation submitted by the Action Workers’ Union Confederation (Aksiyon-Is) under article 24 of the ILO Constitution (GB.341/INS/13/5). The tripartite committee issued conclusions and made recommendations in relation to: (i) the summary dismissal of thousands of Turkish workers, including all members of Aksiyon-Is, by legislative decree on the grounds that they were terrorists who had supported the coup attempt that took place in Türkiye on 15 July 2016; (ii) the lack of due process in respect of the appeals procedures held before the Inquiry Commission established to examine the terminations; and (iii) the situation of the dismissed workers who suffered from retaliatory actions that impeded them from securing alternative employment, receiving termination indemnities or their entitlements under the health, employment and pension systems to which they were affiliated and contributing.

The tripartite committee found that the Government summarily dismissed thousands of workers, including all 29,579 members of Aksiyon-Is, under emergency decrees issued by the Government following the attempted coup, deeming the workers to be terrorists on the basis of alleged links with a terrorist organization merely due to their association with the trade union confederation. The dismissed workers were not informed prior to the dismissal of the reasons for their termination, nor were they afforded the opportunity to defend themselves prior to being dismissed. The tripartite committee also found that the workers were apparently denied the opportunity to present information or evidence in their defense, including witness testimony, to the Inquiry Commission on the State of Emergency Measures responsible for examining their appeals. The tripartite committee found that, in addition to being summarily dismissed, the workers concerned were blacklisted as being or having ties to terrorists, precluding them from securing alternative employment. They received no termination indemnities and were deprived of their entitlements under the health, unemployment and pension systems to which they were affiliated and had been contributing, in violation of Article 12 of the Convention. The tripartite committee also observed, citing Article 9(2) of the Convention, that the sample cases set out in the 2019 Inquiry Commission report appeared to place the burden of proof on the worker, in addition to restricting their means of defense. It urged the Government to ensure that the dismissed workers are ensured a full and fair opportunity to argue their case and present information and evidence in their defense in challenging their dismissals, and that the principle of due process is fully observed in each individual application, including on appeal. Noting that the work of the Inquiry Commission is still under way, the tripartite committee urged the Government to ensure full reconsideration on the merits of those cases in which applications have been rejected without the applicants having had the opportunity to present oral statements or witnesses, and to ensure this right of defense for those dismissed workers whose cases have not yet been examined. Noting the dire impact of the dismissals on the workers’ ability to secure alternative employment, the tripartite committee urged the Government to make all efforts to ensure a rapid, comprehensive and impartial review of the merits of each individual case, and in the event that the dismissals were found to be unjustified, to award compensatory damages and restitution of accrued benefits. The tripartite committee requested that the Government take into account these observations in its application of the Convention and invited it to provide information for examination and possible further monitoring by the Committee of Experts.

The Committee deeply regrets that the Government does not refer in its report to any measures taken to address the concerns and recommendations of the tripartite committee regarding the denial of the dismissed workers’ rights to be informed of and present a defense prior to dismissal, as well as of their right to a fair, impartial review of their termination decision. The Committee further regrets that the Government does not provide concrete information on the situation of those dismissed workers whose appeals were upheld. The Committee therefore urges the Government to take all necessary measures to implement the recommendations of the tripartite committee approved by the Governing Body and requests the Government to provide full information in this respect in its next report.

Articles 4 through 9, 10 and 12. Valid reason for termination. Right to present a defense. Right of appeal to an impartial body. Adequate compensation and termination indemnities. The Committee notes the conclusions of the tripartite committee referred to above concerning the summary dismissals of thousands of workers since July 2016, including all members of the Aksiyon-Is trade union confederation. While the Committee notes the Government’s position that the dismissals were not based on the workers’ affiliations with the trade union confederation, it once again emphasizes that Article 4 of the Convention provides that the employment of a worker shall not be terminated unless there is a valid reason connected with the capacity of conduct of the worker or based on the operation requirements of the undertaking, establishment or service. Moreover, prior to dismissal, the worker should be informed of the reason for the termination decision and be afforded the opportunity to be heard. In this context, the Committee draws the Government’s attention to paragraphs 146 and 150 of its 1995 General Survey on Protection against unjustified dismissal, which provide that, pursuant to Article 7 of the Convention, “the worker, before his employment is terminated, must have an opportunity to defend himself against the allegations made, which presupposes that the latter should be expressed and brought to his attention before the termination. […] It is important that the allegations are expressed and communicated to the worker without ambiguity and that the worker is given a real opportunity to defend himself.” Moreover, pursuant to Articles 8 and 9(2) of the Convention, the dismissed worker is entitled to appeal the termination to an impartial body and should not have to bear alone the burden of proving that the termination was not justified. The Committee notes the Government’s indication that as of 27 May 2022, the number of applications submitted to the Inquiry Commission stood at 127,130. The Commission had handed down decisions on 98 per cent of the applications, delivering 124,235 decisions (17,265 appeals accepted and 106,970 rejected). The Government indicates that 61 of the acceptance decisions are related to the opening of organizations that had been shut down, such as associations, foundations and television channels. The Committee urges the Governmentto implement the recommendations of the tripartite committee to make all efforts to ensure full reconsideration on the merits of those cases in which applications have been rejected without the applicants having had the opportunity to present oral statements or witnesses, and to ensure this right of defence for those dismissed workers whose cases have not yet been examined. The Government is requested to provide detailed updated information on the manner and extent to which the recommendations of the tripartite committee have been given effect.

The Committee is raising other matters in a request addressed directly to the Government.

[ The Government is asked to reply in full to the present comments in 20 2 4.]

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Seafarers. The Committee recalls that, in its conclusions adopted in November 2000, the tripartite committee set up by the Governing Body to examine a representation under article 24 of the ILO Constitution noted that the laws regulating the employment of seafarers did not require a valid reason for termination related to capacity, conduct or operational requirements. In its report, the Government provides further information on Maritime Labour Law No. 854. The Committee notes in this regard that section 14 of the Law sets out the conditions for the termination of employment contracts for an indefinite period or of a fixed duration, or contracts of employment per voyage. According to this provision, an employment contract may be terminated by the employer or the representative of the employer if: (a) the seafarer returns to the ship at any port but does not return to work, or does not return to the ship at all; (b) it will be impossible for the seafarer to work on the ship due to arrest, imprisonment or prohibition of work on the ship; (c) the seafarer acts against the employer or the representative of the employer in violation of applicable laws, employment contract or other working conditions; and (d) the seafarer acts against the employer or the employer’s representative in violation of maritime rules and practice, or acts in contradiction to the applicable ethical and moral rules. The Government further indicates that seafarers are also protected against bad faith dismissals. Section 16 of the Maritime Labour Law provides that, if the seafarer is dismissed due to other reasons, such as union membership or due to the filing of a complaint, and in case of the abuse of the right of the termination of the employment contract, the dismissed worker will be entitled to compensation. The parties also have the right to request further indemnification apart from what is expressly stated in the legislation. The Committee therefore requests the Government to provide further information on the position of law and practice regarding the termination of the employment contracts of seafarers, including copies of relevant court decisions in this regard.

Article 10. Remedies in case of unjustified termination. In its previous comments, the Committee noted that workers who win their lawsuits for unfair dismissal are required to pay back the unemployment benefits they received during the legal process. In its observations, the Turkish Confederation of Employer Associations (TİSK) indicates that employment in an income-generating job precludes entitlement to unemployment benefits. The Government indicates that, with the adoption of Law No. 6552 in September 2014, section 50(3) of the Unemployment Insurance Law No. 4447 was amended to clarify that workers who win their lawsuits for unfair dismissal are entitled to retain unemployment allowances received for the period during which they were unemployed, when returning to work. The Committee requests the Government to continue to provide updated information on the application of Article 10 of the Convention.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TİSK), communicated together with the Government’s report.

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Committee recalls the concerns raised by the Confederation of Turkish Trade Unions (TÜRK-İS) in 2013 indicating that, although the Labour Code establishes clear provisions regulating the use of fixed-term employment contracts, in actual practice, such contracts are used to evade employers’ statutory obligations. The Government indicates that employment contracts of an indefinite duration are the typical form that employment relationships take in Turkey. TİSK points out that specific objective reasons must exist at the outset when a fixed-term contract is agreed for the first time. Pursuant to section 11 of the Labour Law, the objective reasons include: jobs with a specified term, completion of a certain job, or the occurrence of a certain event. In the absence of objective reasons justifying the conclusion of a fixed-term employment contract, the contract is deemed to be concluded for an indefinite period. Moreover, according to section 11, a fixed-term employment contract may not be concluded more than once consecutively, unless reasons exist that necessitate the use of successive fixed-term contracts. Apart from this exception, a fixed-term contract that is concluded more than once is deemed to have been concluded for an indefinite period from the beginning. The Government indicates that Turkish courts often interpret the use of fixed-term contracts very strictly and only uphold the use of these contracts in exceptional situations. The Committee notes the examples of court decisions referred to by the Government in this context. According to TİSK, Turkish legislation considerably limits the possibility of concluding fixed-term employment contracts, adding that Turkish legislation is stricter than the principles applied in European Union Directive 99/70 EC since, in contrast to the Directive, Turkish law requires the objective reason justifying the use of a fixed term contract at the beginning of the employment relationship.

TİSK further indicates that since contracts are presumed to be for an indefinite duration, the burden of proof rests upon the party claiming that the employment contract is for a fixed term. In its previous comments, the Committee requested further information on the safeguards against abusive recourse to contracts of employment for a specified period of time, especially for subcontracting arrangements for auxiliary jobs. TİSK indicates that, while it is possible for auxiliary tasks in the workplace to be subcontracted out by the principal, subject to the restrictions set out in section 2 of the Labour Law, this does not mean that the employer can give preference to the use of fixed-term contracts to hire workers employed in auxiliary jobs. If the objective reasons required in the Labour Law have not been met, the employment contract will be deemed to be for an indefinite period from the outset. In addition, unskilled labourers are generally employed in auxiliary jobs. TİSK refers to a 2008 ruling of the Court of Cassation which construed an employment contract as being for an indefinite period because the objective reasons required for a fixed-term contract did not exist. The worker in that case was providing unskilled labour for the employer and occupied a position that required continuity. TİSK considers that it is not possible to use fixed-term contracts in auxiliary jobs, according to the relevant legislation and case law. The Committee requests the Government to continue to provide information on the application of safeguards provided in section 11 of the Labour Law against abusive recourse to contracts of employment for a specified period of time, including relevant court decisions in this regard. It also requests the Government to provide further information on the application in practice of section 11, including data on the total number of fixed-term employment contracts compared with contracts for an indefinite duration.

Article 2(4)–(6). Categories of workers excluded from the Convention. The Committee recalls that section 18 of the Labour Law excludes from its employment protection provisions: workers employed in businesses employing less than 30 workers; workers with less than six months’ employment; and workers in managerial positions. Notwithstanding this provision, section 17 of the Labour Law provides that if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the amount of wages they would have received during the notice period, plus compensation in lieu of notice if the notice period was not respected. The Government indicates that the Turkish Code of Obligations (No. 6098) also applies to workers who are excluded from the scope of the Labour Law. According to section 434 of the Code of Obligations, in cases where the service contract is terminated in bad faith, the employer is obliged to pay an indemnity to the worker equal to three times the amount of wages due during the period of notice of termination. In its observations, TİSK refers to court decisions examining the issue of bad faith dismissals. It adds that workers excluded from the scope of the protections in the Labour Law may nevertheless benefit from the labour safeguards in collective labour agreements. TİSK also indicates that there are provisions in many collective labour agreements that provide safeguards applicable to those employed in workplaces with fewer than 30 workers. The Committee notes the data provided by the Government indicating that the number of insured employees in workplaces with fewer than 30 workers totalled 6,131,494 in 2011 (51.35 per cent of all workers) and 6,493,090 (49.60 per cent of all workers) in 2015. The Committee requests the Government to continue to provide updated information on the application of the Convention in small and medium-sized enterprises that may be excluded from the employment protection provisions of the Labour Law, including statistical data on the number of establishments employing fewer than 30 workers in comparison with other establishments, and examples of court decisions that have examined allegations of bad faith dismissals. Please also provide copies of collective agreements that extend protection afforded by the labour legislation to workers employed in workplaces with fewer than 30 workers. The Committee also requests the Government to provide further information on the number of non-insured workers and the manner in which Article 12 of the Convention would apply to such workers.

Articles 4 and 5. Valid reasons for termination. The Committee notes the joint statement of the European Trade Union Confederation (ETUC), International Trade Union Confederation (ITUC), Confederation of Turkish Trade Unions (TÜRK-İS), Confederation of Turkish Real Trade Unions (HAK-IS), Confederation of Progressive Trade Unions of Turkey (DISK) and Confederation of Public Employees’ Trade Unions (KESK), referring to a “massive wave of dismissals” in Turkey by the Government since July 2016, primarily in the public sector, and to a meeting in October 2016, with representatives of the ILO. The Committee recalls that Article 4 of the Convention provides that the employment of a worker shall not be terminated unless there is a valid reason connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. The Committee requests the Government to provide detailed information in this regard by providing information on the practical effect given to Articles 4 and 5 of the Convention in relation to the reported “massive wave of dismissals” that has taken place since July 2016.

The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee notes the Government’s report which includes observations made by the Turkish Confederation of Employers’ Associations (TISK), the Confederation of Turkish Trade Unions (TÜRK-IS) and the Confederation of Turkish Real Trade Unions (HAK-IS). In addition, the Committee notes the observations made by the International Organisation of Employers (IOE) and TISK, received in August 2013, and the information provided by the Government in reply to these observations in March 2014. It also notes the communication received in August 2014 whereby the IOE included Turkey in its observations concerning the application of the Convention.

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Committee previously noted TÜRK-İS’s concern that, some employers tend to resort to contracts for a specified period of time with the aim of avoiding employment protection provisions. In its observations of August 2013, TISK and the IOE state that this concern seems to be unjustified since auxiliary jobs are widely performed by subcontractor employees in Turkey. TISK and the IOE add that an employer may recruit a subcontractor upon restrictions set forth by the Labour Code. The Government refers to section 11 of the Labour Law which regulates contracts for a definite and indefinite duration. TISK recalls in its November 2014 observations that this provision requires that there must be objective reasons the first time a fixed-term employment contract is concluded. TÜRK-IS is of view that, although the Labour Code lays down clear provisions, fixed-term contracts are used to evade statutory obligations in practice. The Committee recalls that the Convention provides that adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention (see also Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166)). The Committee requests the Government to provide further information on the observations of the social partners. It also requests the Government to provide updated information on the use of safeguards provided in section 11 of the Labour Law against abusive recourse to contracts of employment for a specified period of time, especially for auxiliary jobs.

Article 2(4)–(6). Categories of employees excluded from the Convention. The Committee recalls that, under section 18 of the Labour Law, employees in businesses employing less than 30 workers, employees with less than six months’ employment and employees holding a managerial position are excluded from the employment protection provisions of the Law. Under section 17 of the Labour Law, if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the notice period plus the compensation in lieu of notice if the notice period has not been respected. The Committee refers to its previous comments and notes the information provided by TISK in November 2014 on the provisions of the Code of Obligations that apply to workers who are excluded from the scope of the Labour Law. HAK-IS indicates that the number of establishments employing fewer than 30 workers with a view to taking advantage of the legislative exemption is rising in the country. It adds that establishments which ought to be employing more than 30 workers try to shirk their responsibilities by dividing the establishments on paper. The Committee notes TÜRK-IS’s indication that the vast majority of undertakings in Turkey are small and medium-sized enterprises and it is therefore clear that a relatively large number of workers do not enjoy job security. The Committee notes that the Constitutional Court, in a judgment of 22 October 2014, declared unconstitutional certain provisions of the Labour Law that denied employees in establishments employing fewer than 30 workers the right to initiate legal proceedings for unfair dismissal on grounds of anti-union discrimination. The Committee requests the Government to provide updated information on any developments concerning the application of the Convention in small and medium-sized enterprises that may be excluded from the employment protection provisions of the Labour Law, including data on the increase of establishments employing fewer than 30 workers in comparison with other establishments and examples of court decisions on bad faith dismissals.

Seafarers. The Committee recalls that, in its conclusions adopted in November 2000, the tripartite committee set up by the Governing Body to examine a representation under article 24 of the ILO Constitution noted that the laws regulating the employment of seafarers did not require a valid reason related to capacity, conduct or operational requirements for termination. In its report the Government refers to Article 2(5) of the Convention and recalls that Maritime Labour Law No. 854 was adopted in accordance with the opinions of the social partners. The Committee notes that, in their observations, TISK and the IOE are of the view that excluding seafarers from the application of the Convention is in conformity with Article 2(5). The Committee recalls that the exclusion permitted by Article 2(5) only applies if the Government lists the exclusion in the Government’s first report, after consultation with the social partners. It recalls in this regard that the exclusion of seafarers was not listed in the first report. It notes however that the Government had listed the provisions of the Maritime Labour Law, describing the conditions in which an employment contract may be terminated. The Committee recalls that it is permissible for a Member to give effect to the Convention in more than one law and it is unnecessary to regard them as exclusions. The Committee therefore requests the Government to provide further information on the position of law and practice regarding the termination of the employment contract of seafarers.

Article 10. Remedies in case of invalid termination. In its previous comments, the Committee noted that the Turkish Employment Agency (İŞKUR) required workers who win their lawsuits for unfair dismissal to pay back the unemployment benefits they received during adjudication. The Committee noted the decision of the Court of Cassation of 5 April 2010 stating that when an appeal procedure for unfair dismissal lasts more than four months, the repayment by the worker winning the lawsuit of unemployment benefits received during adjudication is unlawful as it contravenes Unemployment Insurance Law No. 4447 and the principles of social security. TISK and the IOE indicate that the April 2010 ruling was decided by a majority of judges and add that the Court of Cassation handed down a unanimous decision on 30 November 2010. Both organizations are of the view that the decision of the Court of Cassation has become a precedent and conflicts arising out from unemployment insurance are expected to be resolved similarly by the judiciary. The Government indicates that a draft law is on the agenda of the National Assembly which was prepared to eliminate situations in which unemployment benefits would be requested to be paid back when individuals went back to work. The Committee requests the Government to continue to provide information on the application of Article 10 of the Convention, including information on the eventual adoption of legislation.

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

The Committee notes the Government’s report received in November 2011 in reply to its previous comments. It also notes the various relevant decisions of the Ninth Chamber of the Court of Cassation supplied by the Government on the matters covered by the Convention. The Committee further notes the observations of the Confederation of Turkish Trade Unions (TÜRK-İŞ) and the Turkish Confederation of Employers’ Associations (TÍSK) on the application of the Convention. The Committee notes that the new Code of Obligations (Act No. 6098 dated 11 January 2011) entered into force in July 2012. The Committee invites the Government to provide information on the application of the new provisions of the Code of Obligations on the matters covered by the Convention. It would welcome continuing to receive the remarks of the Government and the social partners on the application of the Convention in practice and examples of court rulings concerning questions of principle related to the Convention (Part V of the report form).

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO). In reply to the Committee’s previous comments, the Government indicates that Maritime Labour Law No. 854 has not been amended to cover employment protection of seafarers. The Committee recalls that in its conclusions adopted in November 2000, the tripartite committee set up by the Governing Body to examine a representation under article 24 of the ILO Constitution noted that the laws regulating the employment of seafarers did not require a valid reason related to capacity, conduct or operational requirements for termination. The Committee urges the Government again to take the necessary steps to ensure that seafarers are afforded the protection under the Convention and to provide information on the measures taken in this regard in its next report.

Article 2(2) and (3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. In its previous comments, the Committee noted the safeguards provided in Labour Law No. 4857 against the abuse of different types of contracts. The Committee notes TÍSK’s indication that the Labour Law attaches extremely harsh conditions to the use of employment contracts for a specified period of time. Moreover, the Court of Cassation strictly applies the provisions of the Labour Law regulating these contracts. Accordingly, even if there is an objective reason for stipulating a fixed-term contract, the Court does not hold that the contract is stipulated for a specified period of time if the date of termination of such contract is not clear. The party claiming that the employment contract has been stipulated for a specific period of time has the burden to prove this circumstance. The Committee notes TÜRK-İŞ’s concern that especially for auxiliary jobs some employers tend to stipulate contracts for a specified period of time with the aim of avoiding employment protection provisions. The Committee invites the Government to continue to provide examples of court decisions on the safeguards provided in the Labour Law against recourse to contracts for a specified period.

Article 2(4)–(6). Categories of employees excluded from the Convention. The Committee recalls that under section 18 of the Labour Law, employees in businesses employing less than 30 workers, employees with less than six months’ employment and employees holding a managerial position are excluded from the employment protection provisions of the Law – i.e. in terminating employees the employer does not have to depend on a valid reason. Under section 17 of the Labour Law, if the contracts of these categories of workers are terminated in bad faith, they are entitled to compensation equal to three times the notice period plus the compensation in lieu of notice if the notice period has not been respected. The Committee notes TÜRK-İŞ’s indication that, as a positive and important development, a decision of the Court of Cassation of 26 May 2005 stated that although section 18 of the Labour Law establishes the limit of 30 employees, if the number of workers in an establishment is less than 30, the collective agreement in an establishment may provide that employment protection provisions are applicable regardless of the number of employees. The aforementioned decision has been confirmed by subsequent jurisprudence. The Committee further notes TÍSK’s indication that certain grounds listed under the Convention, such as filing a complaint against the employer (Article 5(c)), are also applicable to employees that are excluded from the employment protection provisions of the Labour Law, to the extent that these grounds are accepted by the courts as being in “bad faith”, thereby rendering the worker entitled to compensation. The Committee invites the Government to continue to provide information on any developments in law and practice concerning the categories of workers excluded from the employment protection provisions of the Labour Law. It also invites the Government to include in its next report information on the impact of the decisions of the Court of Cassation on the application of the Convention.

Article 10. Remedies in case of invalid termination. In its previous comments, the Committee noted that the Turkish Employment Agency (İŞKUR) required workers who win their lawsuits for unfair dismissal to pay back the unemployment benefits they received during adjudication. The Committee notes TÍSK’s concern that a worker whose proceedings lasted for more than four months who received four months’ wages pursuant to section 21 of the Labour Law would be financially disadvantaged if required to pay back the unemployment benefits paid for the period exceeding four months. In this regard, the Committee notes with interest the decision of the Court of Cassation of 5 April 2010 stating that when an appeal procedure for unfair dismissal lasts more than four months, the repayment by the worker winning the lawsuit of unemployment benefits received during adjudication is unlawful as it contravenes the Unemployment Insurance Law No. 4447 and the principles of social security. The Committee invites the Government to continue to provide information on the application of Article 10 of the Convention.

[The Government is asked to reply in detail to the present comments in 2014.]

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It must therefore repeat its 2010 observation which read as follows:

Repetition

The Committee notes the Government’s report received in March 2010 in reply to the previous observations. The Committee also appreciates the ongoing contribution of information and views by the Confederation of Turkish Trade Unions (TÜRK-İŞ) and the Turkish Confederation of Employers’ Associations (TÍSK) on the application of the Convention.

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 Constitution of the ILO). The Committee recalls that in the conclusions adopted in November 2000 by the committee set up by the Governing Body to examine the representation made by TÜRK-İŞ it was noted that the laws regulating the employment of seafarers and journalists did not require a valid reason related to capacity, conduct or operational requirements for termination. The Committee notes with interest that the Government states in its report received in March 2010 that it has amended the Act on Relations between Employees and Employers in Media Profession (No. 5953) to give journalists the same protections afforded other employees under the Labour Law (No. 4857). It notes with regret however that the Maritime Labour Law (No. 854) has not yet been amended to bring it into compliance with the Convention. The Committee urges the Government to take the necessary steps to ensure that seafarers are given the protections afforded by the Convention and to provide information on the steps taken in this regard in its next report.

Article 2(2) and (3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Government indicates that the Labour Act No. 4857 has two safeguards against the abuse of fixed-term, temporary, and seasonal contracts and contracts lasting less than six months with the aim of evading the Convention. First, even though section 18 of the Labour Act limits the application of valid reason requirement to workers with indefinite contracts with at least six months of service, the first paragraph of section 11 requires fixed-term contracts to meet the “objective” standard of a specified term, completion of a certain work, or materialization of a certain event to be recognized as such under the Act. Second, the Government indicates that the second paragraph of section 11 of the Act treats successive fixed-term contracts as an indefinite contract unless there is “an essential reason which may necessitate repeated (chain) contracts”. The Committee notes TÍSK’s view that the objective reason requirement affords a stringent protection against the potential abuse of fixed-term contracts. The Committee would appreciate receiving in the Government’s next report updated information on the efficacy of these two safeguards in ensuring the protection resulting from the Convention.

Article 2(4)–(6). Categories of employees excluded from the Convention. The Committee recalls its previous observation that the Government did not list any category of workers for exclusion under Article 2(6) in its first report in December 1997. The Committee notes that under Article 4 of the Labour Law (No. 4857), the Law does not apply to a range of businesses such as those in sea and air transport, in agriculture and forestry employing less than 50 workers, in domestic services, in the production of handicrafts by family members, in sport, etc. The Committee recalls that the Convention applies to all branches of the economy and to all employed persons but that it can be given effect to by different means including laws, collective agreements, arbitration awards or court decisions. The Committee requests the Government to indicate in what way the protections afforded by the Convention are available to the categories of workers contemplated by the exclusions in article 4 of the Labour Law. The Committee recalls its previous observation that section 18 of the Labour Law that requires a valid reason relating to conduct, capacity and operational requirements for the termination of employment, specifically excludes a business employing less than 30 employees. In the same observation, the Committee also noted that the last paragraph in section 18 of the Labour Act excludes employers’ representatives who manage the enterprise and their assistants from the protections enumerated in sections 18, 19 and 21 of the same Act. In response to the Committee’s request to explain how these two categories of workers are afforded protection under Articles 4, 5, 6 and 7 of the Convention, the Government refers to section 17 of the Labour Act, which entitles these employees to a compensation of three times the applicable notice period. The Government further indicates that this compensation is in addition to the amount paid in lieu of notice. The Committee notes that section 18 of the Labour Act lists the reasons contained in Article 5 of the Convention as invalid reasons for dismissal under the Labour Act such as reasons relating to discrimination, maternity leave, filing complaints and participating in proceedings regarding alleged violation of laws, trade union membership and activities, etc. Given that termination on some of these grounds constitutes an infringement of the fundamental Conventions such as those regarding discrimination and freedom of association, a penalty of three times the notice pay is substantially less than the remedies afforded other workers under the Labour Act and might be considered inadequate compensation for the purposes of Article 10 of the Convention. The Committee accordingly invites the Government to reconsider this aspect and to afford appropriate protection against invalid dismissal for this category of employees.

The Committee understands that the fourth paragraph in section 18 of the Labour Act, which previously determined the calculation of six-month and 30 worker thresholds required for the application of valid reason standard, has been deleted. The Committee further notes TÜRK-İŞ’ concern that the 30-worker threshold excludes a significant number of workers from the Convention’s coverage, given the ubiquity of small and medium-sized enterprises. The Committee invites the Government to indicate in its next report how the resulting change in the threshold calculation ensures the application of the Convention.

Article 4. Valid reason for termination. The Committee notes that the Convention’s valid reason protection is being implemented through domestic court decisions based on the Labour Act, especially by the Court of Cassation’s rulings on which facts related to workers’ competence and conduct, or employers’ business necessity constitute valid grounds. TÍSK indicates that the number of cases in the Ninth Chamber of the Supreme Court of Appeals, dedicated to labour disputes other than social security issues, has increased from 20,000 to 43,000 per year since the Labour Act came into force in June 2003, with reinstatement lawsuits making up a bulk of the increase. TÍSK and TÜRK-İŞ both communicate difficulties arising from the prolonged period of adjudication lasting more than two years, since employers cannot leave a vacancy open for long and employees suffer from delayed reinstatement. TÍSK indicates that the Court of Cassation distinguishes “valid reason” terminations under section 18 of the Labour Act from dismissals based on “justified grounds” under section 25 by applying the principle of termination as the last resort in the former, and the standard of serious misconduct in the latter. The Committee invites the Government to continue providing information on the decisions of the tribunals on the abovementioned matters covered by the Convention (see Part V of the report form).

Article 10. Remedies in case of invalid termination. The Government indicates that under section 21 of the Labour Act, courts and arbitrators have the power to declare a termination invalid and determine the amount of compensation in lieu of reinstatement. Employees must apply for reinstatement within ten days of judgement, and employers must choose between reinstatement and compensation. Workers are entitled to up to four months of one’s wages during the appeals process, which must be paid back upon reinstatement or deducted from the final amount of compensation. TÜRK-İŞ indicates that employers frequently choose compensation over reinstatement under this legal framework. TÜRK-İŞ suggests that the statutory compensation amount of between four and eight months of wages is inadequate and hinders one’s reinstatement, since adjudication takes more than two years in practice and employees must pay back the initial compensation to be reinstated. TÜRK-İŞ also indicates that the Turkish Employment Agency (İŞKUR) requires workers who win their lawsuits to pay back the unemployment benefits they have received during adjudication, even though employment security and unemployment insurance are distinct entitlements. TÍSK expresses the view that the remedy of either reinstatement or compensation combined with an expedited system of financial aid during adjudication exceeds the Government’s obligation under the Convention. The Committee notes the 1995 General Survey on protection against unjustified dismissal, which states that the wording of Article 10 of the Convention gives preference to reinstatement but is flexible in allowing other remedies and that, when compensation is paid, it should be adequate (paragraph 219 of the General Survey of 1995). In this respect, the Committee invites the Government to provide information in its next report regarding the adequacy of compensation for unjustly dismissed workers who are not reinstated.

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

The Committee notes the Government’s report received in March 2010 in reply to the previous observations. The Committee also appreciates the ongoing contribution of information and views by the Confederation of Turkish Trade Unions (TÜRK-İŞ) and the Turkish Confederation of Employers’ Associations (TÍSK) on the application of the Convention.

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 Constitution of the ILO). The Committee recalls that in the conclusions adopted in November 2000 by the committee set up by the Governing Body to examine the representation made by TÜRK-İŞ it was noted that the laws regulating the employment of seafarers and journalists did not require a valid reason related to capacity, conduct or operational requirements for termination. The Committee notes with interest that the Government states in its report received in March 2010 that it has amended the Act on Relations between Employees and Employers in Media Profession (No. 5953) to give journalists the same protections afforded other employees under the Labour Law (No. 4857). It notes with regret however that the Maritime Labour Law (No. 854) has not yet been amended to bring it into compliance with the Convention. The Committee urges the Government to take the necessary steps to ensure that seafarers are given the protections afforded by the Convention and to provide information on the steps taken in this regard in its next report.

Article 2(2) and (3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Government indicates that the Labour Act No. 4857 has two safeguards against the abuse of fixed-term, temporary, and seasonal contracts and contracts lasting less than six months with the aim of evading the Convention. First, even though section 18 of the Labour Act limits the application of valid reason requirement to workers with indefinite contracts with at least six months of service, the first paragraph of section 11 requires fixed-term contracts to meet the “objective” standard of a specified term, completion of a certain work, or materialization of a certain event to be recognized as such under the Act. Second, the Government indicates that the second paragraph of section 11 of the Act treats successive fixed-term contracts as an indefinite contract unless there is “an essential reason which may necessitate repeated (chain) contracts”. The Committee notes TÍSK’s view that the objective reason requirement affords a stringent protection against the potential abuse of fixed-term contracts. The Committee would appreciate receiving in the Government’s next report updated information on the efficacy of these two safeguards in ensuring the protection resulting from the Convention.

Article 2(4)–(6) of the Convention. Categories of employees excluded from the Convention. The Committee recalls its previous observation that the Government did not list any category of workers for exclusion under Article 2(6) in its first report in December 1997. The Committee notes that under Article 4 of the Labour Law (No. 4857), the Law does not apply to a range of businesses such as those in sea and air transport, in agriculture and forestry employing less than 50 workers, in domestic services, in the production of handicrafts by family members, in sport, etc. The Committee recalls that the Convention applies to all branches of the economy and to all employed persons but that it can be given effect to by different means including laws, collective agreements, arbitration awards or court decisions. The Committee requests the Government to indicate in what way the protections afforded by the Convention are available to the categories of workers contemplated by the exclusions in Article 4 of the Labour Law. The Committee recalls its previous observation that section 18 of the Labour Law that requires a valid reason relating to conduct, capacity and operational requirements for the termination of employment, specifically excludes a business employing less than 30 employees. In the same observation, the Committee also noted that the last paragraph in section 18 of the Labour Act excludes employers’ representatives who manage the enterprise and their assistants from the protections enumerated in sections 18, 19 and 21 of the same Act. In response to the Committee’s request to explain how these two categories of workers are afforded protection under Articles 4, 5, 6 and 7 of the Convention, the Government refers to section 17 of the Labour Act, which entitles these employees to a compensation of three times the applicable notice period. The Government further indicates that this compensation is in addition to the amount paid in lieu of notice. The Committee notes that section 18 of the Labour Act lists the reasons contained in Article 5 of the Convention as invalid reasons for dismissal under the Labour Act such as reasons relating to discrimination, maternity leave, filing complaints and participating in proceedings regarding alleged violation of laws, trade union membership and activities, etc. Given that termination on some of these grounds constitutes an infringement of the fundamental Conventions such as those regarding discrimination and freedom of association, a penalty of three times the notice pay is substantially less than the remedies afforded other workers under the Labour Act and might be considered inadequate compensation for the purposes of Article 10 of the Convention. The Committee accordingly invites the Government to reconsider this aspect and to afford appropriate protection against invalid dismissal for this category of employees.

The Committee understands that the fourth paragraph in section 18 of the Labour Act, which previously determined the calculation of six-month and 30‑worker thresholds required for the application of valid reason standard, has been deleted. The Committee further notes TÜRK-İŞ’ concern that the 30-worker threshold excludes a significant number of workers from the Convention’s coverage, given the ubiquity of small and medium-sized enterprises. The Committee invites the Government to indicate in its next report how the resulting change in the threshold calculation ensures the application of the Convention.

Article 4 of the Convention. Valid reason for termination. The Committee notes that the Convention’s valid reason protection is being implemented through domestic court decisions based on the Labour Act, especially by the Court of Cassation’s rulings on which facts related to workers’ competence and conduct, or employers’ business necessity constitute valid grounds. TÍSK indicates that the number of cases in the Ninth Chamber of the Supreme Court of Appeals, dedicated to labour disputes other than social security issues, has increased from 20,000 to 43,000 per year since the Labour Act came into force in June 2003, with reinstatement lawsuits making up a bulk of the increase. TÍSK and TÜRK-İŞ both communicate difficulties arising from the prolonged period of adjudication lasting more than two years, since employers cannot leave a vacancy open for long and employees suffer from delayed reinstatement. TÍSK indicates that the Court of Cassation distinguishes “valid reason” terminations under section 18 of the Labour Act from dismissals based on “justified grounds” under section 25 by applying the principle of termination as the last resort in the former, and the standard of serious misconduct in the latter. The Committee invites the Government to continue providing information on the decisions of the tribunals on the abovementioned matters covered by the Convention (see Part V of the report form).

Article 10 of the Convention. Remedies in case of invalid termination. The Government indicates that under section 21 of the Labour Act, courts and arbitrators have the power to declare a termination invalid and determine the amount of compensation in lieu of reinstatement. Employees must apply for reinstatement within ten days of judgement, and employers must choose between reinstatement and compensation. Workers are entitled to up to four months of one’s wages during the appeals process, which must be paid back upon reinstatement or deducted from the final amount of compensation. TÜRK-İŞ indicates that employers frequently choose compensation over reinstatement under this legal framework. TÜRK-İŞ suggests that the statutory compensation amount of between four and eight months of wages is inadequate and hinders one’s reinstatement, since adjudication takes more than two years in practice and employees must pay back the initial compensation to be reinstated. TÜRK-İŞ also indicates that the Turkish Employment Agency (İŞKUR) requires workers who win their lawsuits to pay back the unemployment benefits they have received during adjudication, even though employment security and unemployment insurance are distinct entitlements. TÍSK expresses the view that the remedy of either reinstatement or compensation combined with an expedited system of financial aid during adjudication exceeds the Government’s obligation under the Convention. The Committee notes the 1995 General Survey on protection against unjustified dismissal, which states that the wording of Article 10 of the Convention gives preference to reinstatement but is flexible in allowing other remedies and that, when compensation is paid, it should be adequate (paragraph 219 of the General Survey of 1995). In this respect, the Committee invites the Government to provide information in its next report regarding the adequacy of compensation for unjustly dismissed workers who are not reinstated.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its 2007 observation which read as follows:

The Committee notes the Government’s report for the period ending May 2006, which included observations from the Confederation of Turkish Trade Unions (TÜRK-IŞ) and the Turkish Confederation of Employers’ Associations (TISK). It would appreciate receiving in the Government’s next report copies of relevant updated legislation which gives effect to the provisions of the Convention as well as relevant decisions issued by the courts on the matters covered by the Convention (Parts I and II, IV and V of the report form).

Follow-up to a representation submitted under article 24 of the ILO Constitution. The Committee recalls the conclusions adopted in 2000 by the committee set up by the Governing Body to examine a representation made by the Confederation of Turkish Trade Unions (TÜRK-IŞ) alleging non-observance by Turkey of Convention No. 158, which concluded that sections 14(1) and 16 of the Maritime Labour Act (No. 854) and section 6 of the Journalists Labour Act (No. 5953) do not require a valid reason for dismissal. TÜRK-IŞ reiterates that these categories of workers are still not able to benefit from the provisions of the Convention. The Committee notes that the Government indicates in its report that several provisions, in particular section 18 of the new Labour Act No. 4857 on valid grounds for dismissal are applicable by analogy to journalists. It further notes that the provisions of the Maritime Labour Act (No. 854) on dismissal were not modified. The Committee thus asks the Government to provide further information on the manner in which it is ensured in practice that workers who are subject to the Maritime Labour Act (No. 854) are not dismissed without a valid reason, as required by the Convention.

Article 2, paragraphs 2 and 3, of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. TÜRK‑IŞ indicates that workers on fixed-term contracts of employment or in temporary or seasonal employment, and those with less than six months’ service at a workplace do not benefit from the provisions of the Convention. The Committee asks the Government to indicate what safeguards have been provided against recourse to contracts of employment for a specified period of time, the aim of which is to avoid protection resulting from the Convention.

Article 2, paragraphs 4–6. Undertakings excluded from the Convention. In reply to previous comments, the Government refers to section 18 of the new Labour Act No. 4857 of 2003 which provides that dismissal must be based on a valid reason only when the worker is employed in an establishment with 30 or more workers. The Government also refers to Article 2(5) of the Convention, and indicates that establishments with fewer than 30 workers are excluded from the application of the Convention. TISK indicates that this exclusion is based on the premise that these businesses would not be able to afford the burden of “job security” provisions and a lengthy termination procedure. TISK also indicates that the limit of 30 workers is very low and is preventing the improvement of employment, as businesses in labour-intensive sectors of industry try not to exceed 30 workers as they do not want to fall within the scope of the “job security” provisions for employees. The Committee observes that the categories of workers that may be excluded pursuant to Article 2(5) must be identified and listed by the member State ratifying the Convention in its first report submitted under article 22 of the ILO Constitution following ratification, in accordance with Article 2(5)(6). It notes in this respect that the Government’s first report received in December 1997 contained no indication that workers employed in establishments with fewer than 30 workers were to be excluded from the application of the Convention under the terms of Article 2(5). The Committee therefore requests the Government to indicate how workers employed in establishments with fewer than 30 workers are covered by the protection afforded by Article 4 of the Convention.

Other categories of workers excluded. The Committee also notes that several provisions of the new Labour Act do not apply to employers’ representatives and their assistants authorized to manage the entire enterprise and those who are also authorized to recruit and terminate the employment of employees (last paragraph of section 18 of the Labour Act). The Committee asks the Government to indicate the manner in which the protection afforded by the provisions of the Convention is ensured in respect of employers’ representatives and their assistants.

Article 4. Valid reason for termination. TÜRK-IŞ indicates that it is not clear what type of conduct or lack of capacity would constitute a valid reason for termination or what requirements of the workplace or the business would be regarded as sufficient ground for termination of employment. TISK indicates that, although the employer is free to determine the content and objectives of its operational decisions, it has to demonstrate that the termination of employment had become necessary as a consequence of the operational decision. Referring to section 25 of the Labour Act respecting termination of employment due to “a situation incompatible with good will or the code of ethics or other similar situations”, TISK indicates that the worker will be entitled neither to seniority pay nor to unemployment benefits. The Committee asks the Government to provide details on relevant court decisions which give effect to Article 4, which constitutes the “cornerstone” of the Convention (paragraph 76 of the 1995 General Survey on protection against unjustified dismissal). It reiterates its interest in being informed about the manner in which a “situation incompatible with good will or the code of ethics or other similar situations” is considered by the courts as a valid reason for termination of employment.

Article 10. Remedies in case of invalid termination. TÜRK-IŞ indicates that court decisions do not result in the reinstatement of workers as the employer has the right to choose reinstatement or the payment of compensation. TÜRK-IŞ also indicates that these difficulties arise because the worker does not have the right to choose between reinstatement or compensation. In this respect, TISK notes that due to the backlog of judicial cases which are taking a year to conclude, an establishment which dismisses a worker may be compelled by a court decision to
re-employ the worker a year later and that establishments which do not want to do so face paying large sums in compensation. TISK refers to section 21 of the Labour Act and indicates that it is not possible to waive or to change the amount of compensation or other entitlements specified in that section, either to the detriment or the benefit of the employee. The Committee asks the Government to provide information on the effect given in practice to Article 10 of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes the Government’s report for the period ending May 2006, which included observations from the Confederation of Turkish Trade Unions (TÜRK-IŞ) and the Turkish Confederation of Employers’ Associations (TISK). It would appreciate receiving in the Government’s next report copies of relevant updated legislation which gives effect to the provisions of the Convention as well as relevant decisions issued by the courts on the matters covered by the Convention (Parts I and II, IV and V of the report form).

2. Follow-up of a representation (article 24 of the ILO Constitution). The Committee recalls the conclusions adopted in 2000 by the committee set up by the Governing Body to examine a representation made by the Confederation of Turkish Trade Unions (TÜRK-IŞ) alleging non-observance by Turkey of Convention No. 158, which concluded that sections 14(1) and 16 of the Maritime Labour Act (No. 854) and section 6 of the Journalists Labour Act (No. 5953) do not require a valid reason for dismissal. TÜRK-IŞ reiterates that these categories of workers are still not able to benefit from the provisions of the Convention. The Committee notes that the Government indicates in its report that several provisions, in particular section 18 of the new Labour Act No. 4857 on valid grounds for dismissal are applicable by analogy to journalists. It further notes that the provisions of the Maritime Labour Act  (No. 854) on dismissal were not modified. The Committee thus asks the Government to provide further information on the manner in which it is ensured in practice that workers who are subject to the Maritime Labour Act (No. 854) are not dismissed without a valid reason, as required by the Convention.

3. Article 2, paragraphs 2 and 3, of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. TÜRK-IŞ indicates that workers on fixed-term contracts of employment or in temporary or seasonal employment, and those with less than six months’ service at a workplace do not benefit from the provisions of the Convention. The Committee asks the Government to indicate what safeguards have been provided against recourse to contracts of employment for a specified period of time, the aim of which is to avoid protection resulting from the Convention.

4. Article 2, paragraphs 4–6. Undertakings excluded from the Convention. In reply to previous comments, the Government refers to section 18 of the new Labour Act No. 4857 of 2003 which provides that dismissal must be based on a valid reason only when the worker is employed in an establishment with 30 or more workers. The Government also refers to Article 2, paragraph 5, of the Convention, and indicates that establishments with fewer than 30 workers are excluded from the application of the Convention. TISK indicates that this exclusion is based on the premise that these businesses would not be able to afford the burden of “job security” provisions and a lengthy termination procedure. TISK also indicates that the limit of 30 workers is very low and is preventing the improvement of employment, as businesses in labour-intensive sectors of industry try not to exceed 30 workers as they do not want to fall within the scope of the “job security” provisions for employees. The Committee observes that the categories of workers that may be excluded pursuant to Article 2, paragraph 5, must be identified and listed by the member State ratifying the Convention in its first report submitted under article 22 of the ILO Constitution following ratification, in accordance with Article 2, paragraphs 5 and 6. It notes in this respect that the Government’s first report received in December 1997 contained no indication that workers employed in establishments with fewer than 30 workers were to be excluded from the application of the Convention under the terms of Article 2, paragraph 5. The Committee therefore requests the Government to indicate how workers employed in establishments with fewer than 30 workers are covered by the protection afforded by Article 4 of the Convention.

5. Other categories of workers excluded. The Committee also notes that several provisions of the new Labour Act do not apply to employers’ representatives and their assistants authorized to manage the entire enterprise and those who are also authorized to recruit and terminate the employment of employees (last paragraph of section 18 of the Labour Act). The Committee asks the Government to indicate the manner in which the protection afforded by the provisions of the Convention is ensured in respect of employers’ representatives and their assistants.

6. Article 4. Valid reason for termination. TÜRK-IŞ indicates that it is not clear what type of conduct or lack of capacity would constitute a valid reason for termination or what requirements of the workplace or the business would be regarded as sufficient ground for termination of employment. TISK indicates that, although the employer is free to determine the content and objectives of its operational decisions, it has to demonstrate that the termination of employment had become necessary as a consequence of the operational decision. Referring to section 25 of the Labour Act respecting termination of employment due to “a situation incompatible with good will or the code of ethics or other similar situations”, TISK indicates that the worker will be entitled neither to seniority pay nor to unemployment benefits. The Committee asks the Government to provide details on relevant court decisions which give effect to Article 4, which constitutes the “cornerstone” of the Convention (paragraph 76 of the 1995 General Survey on protection against unjustified dismissal). It reiterates its interest in being informed about the manner in which a “situation incompatible with good will or the code of ethics or other similar situations” is considered by the courts as a valid reason for termination of employment.

7. Article 10. Remedies in case of invalid termination. TÜRK-IŞ indicates that court decisions do not result in the reinstatement of workers as the employer has the right to choose reinstatement or the payment of compensation. TÜRK-IŞ also indicates that these difficulties arise because the worker does not have the right to choose between reinstatement or compensation. In this respect, TISK notes that due to the backlog of judicial cases which are taking a year to conclude, an establishment which dismisses a worker may be compelled by a court decision to re-employ the worker a year later and that establishments which do not want to do so face paying large sums in compensation. TISK refers to section 21 of the Labour Act and indicates that it is not possible to waive or to change the amount of compensation or other entitlements specified in that section, either to the detriment or the benefit of the employee. The Committee asks the Government to provide information on the effect given in practice to Article 10 of the Convention.

[The Government is asked to reply in detail to the present comments in 2009.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee refers to its previous comments as well as the conclusions adopted in 2000 by the committee set up by the Governing Body to examine a representation by the Confederation of Turkish Trade Unions (TÜRK-IŞ) alleging non-observance by Turkey of the present Convention, and notes the information contained in the Government’s report received in 2003. The Committee notes the adoption in 2003 of the new Labour Act No. 4857 and, in particular, its Parts I and II. It also notes the comments submitted in 2003 by the Confederation of Progressive Trade Unions of Turkey (DISK).

2. The Committee notes with satisfaction that, in accordance with Articles 4, 5 and 6 of the Convention, section 18 of the new Labour Act prescribes that dismissal be based on a valid reason and proscribes certain bases for dismissal. The Committee notes, however, that sections 1 and 4 of the Labour Act contain provisions which exclude several categories of workers from its application. The Committee further notes that section 25 of the Labour Act contains provisions concerning valid grounds for dismissal which include "Cases contradicting rules of ethic and goodwill and similar cases" and "force majeure", and that section 18 provides that the provisions requiring dismissals to be based on a valid reason, do not apply to enterprises employing 30 or fewer workers. With reference to this latter limitation, DISK alleges that it will have the effect of excluding some 95 per cent of all workplaces from the scope of the protection by reason of section 18. The Committee invites the Government to indicate in its next report how protection at least equivalent to the protection offered by the Convention is ensured for all excluded categories of workers - in particular for employees of enterprises with fewer than 30 employees. The Government is also invited to provide information on the tripartite consultations held on the exclusions from the scope of application of the Labour Act, provided for under Article 2 of the Convention.

3. The Committee also notes with satisfaction that in accordance with Articles 7, 8, 9 and 10 of the Convention, section 20 of the new Labour Act entitles any worker who is dismissed to appeal against that dismissal in court, and section 21 prescribes the consequences of an unjustified dismissal. The Committee invites the Government to provide information on the application in practice of these provisions.

4. The Committee hopes that in its next report the Government will also include information on the questions pending since the comments by the Committee in 2000 and the discussion in the Conference Committee in 2001 concerning the amendment of the Maritime Labour Act (No. 854) and the Journalists’ Labour Act (No. 5953) to give effect to the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes the information contained in the Government’s report, received in September 2001, which includes comments by the Confederation of Trade Unions of Turkey (TÜRK-IŞ), the Confederation of Progressive Trade Unions (DISK) and the Turkish Confederation of Employers’ Associations (TISK).

2. The Committee recalls the conclusions of the Conference Committee discussion in 2001, which expressed the firm hope that in the very near future the Government would be in a position to confirm real progress in the application of the Convention. In its report, the Government states that the Bill to amend Act No. 1475, which was the subject of previous comments of the Committee, has been withdrawn. A commission composed of, inter alia, three representatives of TISK, and one worker representative from each of the unions TÜRK-IŞ, the Confederation of Turkish Labour Real Trade Unions (HAK-IS) and DISK, was established to draw up a new draft. The Government lists in its report the basic provisions of the new draft which aims to give full effect to the provisions of the Convention. The Committee notes this information. It again draws the Government’s attention to the conclusions approved by the Governing Body at its 278th Session (November 2000) concerning the representation alleging non-observance of the Convention, as well as its 2000 observation, and requests a copy of the new legislation once it is adopted. It also notes the comments of TÜRK-IŞ, DISK and TISK pertaining to the new draft, and will consider them when the legislation is received.

3. The Committee notes that no information has been supplied concerning amendment of the Maritime Labour Act (No. 854) and the Journalists Labour Act (No. 5953) to give full effect to the provisions of the Convention. It again requests information on progress made in this respect.

4. Lastly, the Committee notes the information supplied by the Government in reply to previous comments under Article 12 of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the discussion of the Conference Committee, which took place during the 89th Session of the Conference (June 2001). It also notes the information contained in the Government’s report, received in September 2001, which includes comments supplied by the Confederation of Progressive Trade Unions (DISK) and the Turkish Confederation of Employers’ Associations (TISK) in Turkish. The Committee will examine the Government’s report and comments of the DISK and TISK during its upcoming session.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report for the period 1 June 1997 to 31 May 1999, as well as the text of the draft amendment to Labour Act No. 1475 (1971). The Government states that consideration of the draft bill to amend the current legislation was postponed due to general elections, but will be resubmitted. Please forward a copy of the amended legislation once it is adopted.

Article 4 of the Convention.  The Committee notes the conclusions, approved by the ILO Governing Body at its 279th Session (November 2000), of the Committee set up to examine the representation alleging non-observance of the Convention made under article 24 of the ILO Constitution by the Confederation of Turkish Trade Unions (TÜRK-IŞ). In its conclusions, the Governing Body noted that Labour Act No. 1475 does not require an employer to give a valid reason, as defined in the Convention, for termination of permanent employment. Furthermore, sections 14(1) and 16 of the Maritime Labour Act (No. 854) and section 6 of the Journalists Labour Act (No. 5953) also do not require a valid reason for dismissal. The Governing Body considered that Article 4 appears not to be applied.

The draft amendment submitted by the Government states that an employer would have to provide a clear reason for dismissal. However, there is no requirement in the draft amendment that the reason be valid as defined in the Convention, i.e. that it be related to the capacity or conduct of the individual or related to the operational needs of the enterprise.

The Committee would appreciate receiving further information on the measures taken or envisaged to give full effect to this fundamental provision of the Convention. It draws the Government’s attention to the grounds contained in Article 5 that shall not constitute a valid reason for termination of employment, and urges the Government to consider including a similar list of prohibited grounds in the draft amendment.

The Committee notes that the draft amendment clarifies that the employer would have the burden of proof in an appeal, in accordance with Article 9. It draws the Government’s attention to other requirements under the Convention which flow from Article 4, in particular Article 10 concerning remedies to be awarded in case of unjustified dismissal. It requests further information on how these obligations under the Convention are applied in law and practice.

Article 6.  The Committee notes that section 17(1)(a) of Labour Act No. 1475 provides that a worker may be dismissed without notice "if the worker has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness and as a result is absent for three successive working days or for more than five working days in any month". The Committee considers that the broad wording of this section, involving as it does moral judgements, is highly susceptible to abuse of discretion by an employer. It requests further information on how section 17(1)(a) is applied in practice, including in particular what safeguards exist to prevent abuse of discretion.

Article 7.  Further to its previous comments TÜRK-IŞ has submitted an additional observation under article 23 of the Constitution. It again draws attention to the fact that the legislation in force does not ensure workers an opportunity to defend themselves before termination of employment. The Committee notes in particular that no cases of appeal against unjustified dismissal to the court have been cited in the Government’s report, and that the draft amendment does not address this issue. The Committee again asks the Government to provide information on what measures have been taken or are envisaged to give effect to this Article of the Convention.

Article 11.  TÜRK-IŞ states in its observations that this Article is not applied, as the exception of "serious misconduct" is defined too broadly in the national legislation. Section 17-II of Labour Act No. 1475 defines professional misconduct and improper behaviour to include, inter alia, "absence from work for two consecutive days or twice in one month on the working day following a rest day or on three working days in any month". The Committee notes that without the right to defend oneself before dismissal there is substantial room for abuse under this provision, reaffirming the need to apply Article 7 fully.

Article 12.  TÜRK-IŞ draws attention to the fact that section 14 of Labour Act No. 1475 requires a minimum of one year of service with the same employer and points out that section 20 of the Marine Labour Act and section 6 of the Journalists Labour Act contain almost the same length-of-service requirement. The Committee recalls that under Article 12 of the Convention a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to a severance allowance, unemployment benefit or assistance or a combination of both irrespective of the length of service, though the level of the benefit may depend on the length of service. The Committee notes that a social security reform package, which includes unemployment insurance, was approved by Parliament in August 1999. It requests further information on the scope of coverage of the unemployment insurance scheme. It hopes that the above point will be taken into account in the scheme.

Articles 13 and 14.  In reply to previous comments, the Government states that in cases involving ten or more workers, section 24 of Labour Act No. 1475 governs the procedure for redundancies. Section 24 provides the right to reinstatement on an individual basis during the six-month period following dismissal on grounds of redundancy. The Government adds that solutions other than dismissal are used to avoid large-scale dismissals. The Committee notes this information. It also notes that there is no requirement in section 24 of Labour Act No. 1475 to provide concerned workers’ representatives in good time with relevant information, as required by Article 13, paragraph 1(a). Nor is an employer required to give the workers’ representatives an opportunity for consultation on measures to be taken to avert or minimize the terminations or mitigate their effects, as required under Article 13, paragraph 1(b). Furthermore, there is no requirement that an employer give to the competent authority a written statement of the reasons for redundancy, number and category of workers affected, and the period over which the terminations are to be carried out, as required under Article 14, paragraph 1. The Committee requests information on the measures taken or envisaged to give full effect to Articles 13 and 14 of the Convention.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Referring to its previous observation, the Committee notes the Government's first report on the application of the Convention and the communication of the Confederation of Turkish Employers' Associations (TISK) a copy of which it has provided. Noting the different legislative provisions referred to in the report, the Committee notes in particular that under the terms of the Labour Act (No. 1475), an employer is only required to give a reason for dismissal in cases where that reason would exempt him from the need to give notice, and that the employer is required to give a valid reason only in the case of dismissal of a trade union delegate or representative, in accordance with the provisions of Act No. 2821 respecting trade unions. The Committee recalls in this context that an eemployer is under an obligation under the terms of Article 4 of the Convention to provide a valid reason for any termination of employment. Furthermore, it notes that the report makes no mention of any provision which would allow a worker dismissed for reasons connected with his capacity or conduct to defend himself against allegations that have been made against him, as required under the terms of Article 7 of the Convention. Lastly, the Committee notes that the Government does not indicate whether a specific procedure is applicable in the case of termination of employment for reasons of an economic, technological, structural or similar nature, in accordance with Articles 13 and 14.

In this context, the Committee notes that the Government refers to a Bill which should amend legislation currently in force and ensure application of the Convention, but it provides no information on the contents of this Bill. The Committee recalls that, when the Governing Body at its 268th Session in March 1997 approved the report of the committee set up to examine the representation made under article 24 of the ILO Constitution by the Confederation of Turkish Trade Unions (TURK-IS) alleging non-observance by Turkey of the Convention, it urged the Government to take the necessary measures as soon as possible to give full effect to the provisions of the Convention, in accordance with Article 1. The Committee trusts that the Government's next report will contain information that real progress has been made in this regard.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the report of the committee set up by the Governing Body to examine the representation (under article 24 of the ILO Constitution made by the Confederation of Turkish Trade Unions (TURK-IS)) alleging non-observance by Turkey of the Convention, which report was approved by the Governing Body at its 268th Session in March 1997 (document GB.268/14/5). While approving the report, the Governing Body urged the Government:

-- to take as soon as possible the necessary measures to give full effect to the provisions of the Convention, in accordance with Article 1; and

-- to provide in its first detailed report on the application of the Convention full information in reply to each of the questions in the report form approved by the Governing Body, on the measures taken to this effect.

In this context the Committee notes that the Government's first report, which transmits a communication from the Turkish Confederation of Employers' Associations (TISK) dated 13 October 1997, was received only on 4 December 1997. The Committee is therefore obliged to defer examination of the report to its next session.