Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 399, Junio 2022

Caso núm. 3410 (Türkiye) - Fecha de presentación de la queja:: 12-JUL-21 - En seguimiento

Allegations: The complainant organization alleges that the national legislation does not provide sufficient protection against anti-union dismissals. It also alleges acts of anti-union interference and discrimination, including dismissals, by corporations in the food industry

1. 309. The complaint is contained in a communication dated 12 July 2021 submitted by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF).
2. 310. The Government of Türkiye transmitted its observations on the allegations in communications dated 1 and 20 September, and 27 October 2021.
3. 311. Türkiye has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 312. In its communication dated 12 July 2021, the complainant alleges that Turkish legislation and practice fail to provide sufficient protection against and effective remedy in cases of anti-union dismissal since employers can, and often do, elect to pay enhanced compensation to an illegally dismissed worker in lieu of respecting court-ordered reinstatement. The complainant argues that the ease with which employers can dismiss union leaders or activists illegally and simply pay additional compensation undermines the right to freedom of association.
2. 313. The complainant indicates that according to section 25(5) of the Law on Trade Unions and Collective Labour Agreements, in cases where the courts find for unfair dismissal due to union activity and order reinstatement, a “union compensation” shall be paid by the employer irrespective of whether the worker is reinstated or not. It further indicates that section 21(1) of the Labour Act (Law No. 4857) provides that an employer shall pay, in addition to this punitive compensation, a compensation of a minimum of four months and a maximum of eight months of salary if it opts not to reinstate the worker following an application by the latter for his or her former role.
3. 314. The complainant argues that the appropriate remedy for a retaliatory dismissal because of trade union activity should be reinstatement with back pay, unless a tribunal determines that reinstatement is not possible, in which case the worker should be provided adequate compensation. However, it states that in Türkiye, even when the courts order reinstatement, employers are not required to reinstate the worker.
4. 315. The complainant states that the above-mentioned provisions are far from dissuasive and that employers systematically exploit them by firing workers once they become aware of organizing efforts, which creates an environment of fear and intimidation in the workplace. More specifically, the complainant alleges that several violations of the rights to freedom of association and collective bargaining, including anti-union dismissals, were committed by three corporations: Cargill (hereinafter “enterprise A”), Olam Group (hereinafter “enterprise B”), and Döhler Group (hereinafter “enterprise C”).
5. 316. As regards enterprise A, the complainant indicates that it employs 155,000 workers in 170 countries, and has operations in meat and poultry, food and beverage ingredients, primary commodity trading and processing, and financial services. The complainant alleges that on 17 April 2018, 14 production workers at enterprise A’s starch factory in Orhangazi were dismissed while trying to organize a union.
6. 317. The complainant informs that on 5 March 2018, their union, the Tekgida-Iş, had filed an application for bargaining unit certification with the Ministry of Labour for four facilities. It indicates that shortly thereafter, a production manager asked two workers about their views on unions and the above-mentioned application. Following the workers’ statement that they were union members, the manager stated that there was no need for a union and that if the formal bargaining unit status was obtained, the rules in the company would change in a negative way and new rules would arise. The complainant states that the two workers were among the 14 that were dismissed on 17 April 2018.
7. 318. The complainant indicates that 12 of the 14 workers contested their dismissal in court. It informs that in December 2019 and February 2020, Bursa’s District Court issued final and unappealable verdicts which: (i) confirmed that eight workers were dismissed solely for their union activity; (ii) established that the other four workers were unfairly dismissed due to the lack of economic justification; and (iii) ordered the reinstatement of the 12 workers.
8. 319. The complainant states that the dismissed workers then applied to the court for their former jobs, but enterprise A opted to pay the enhanced compensation instead of reinstating them, even though other workers were hired during the same period in the departments in which they previously worked. The complainant insists that no evidence was provided that reinstatement was not possible.
9. 320. The complainant indicates that, similarly, seven workers were dismissed by enterprise A between 2012 and 2015. It informs that in 2015 and 2018, the Supreme Court confirmed that they were dismissed in retaliation for their union activity and ordered their reinstatement. However, it states that enterprise A opted to pay compensation in each of these cases as well.
10. 321. The complainant also informs that, in connection with the case involving enterprise A, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Working Group on the issue of human rights and transnational corporations and other business enterprises wrote to the Government on 27 January 2021 to ask for an explanation on the steps the Government plans to undertake in order to ensure that the Labour Act is not used by companies to violate workers’ rights to unionize and to bargain collectively, including possibly an amendment of the law.
11. 322. With respect to enterprise B, the complainant indicates that it is a major food and agri-business company which operates in 60 countries. The complainant alleges that enterprise B’s local management: (i) dismissed nine union members from its Giresun facility between 14 and 16 February 2018, after the workers started organizing with the assistance of the Tekgida-Iş; (ii) dismissed six union members from its Kocaali plant, where workers were also organizing, on 4 March 2019; and (iii) dismissed two more union members at its Giresun plant on 5 March 2019. The complainant indicates that the dismissals had a chilling effect and made recruiting other workers to become union members more difficult.
12. 323. The complainant also alleges that during meetings with workers, enterprise B’s local management explicitly threatened to dismiss all union members and to close its Kocaali plant. Morevover, it states that employer representatives asked workers for their e-state password, under the pretence that they wanted to look at their annual leave days, in order to identify union members and put pressure on them to resign their membership.
13. 324. The complainant indicates that 14 of the 17 dismissed workers contested their dismissal in court through cases filed by the Tekgida-Iş. It informs that on 5 October 2020, an Istanbul District Court issued final and unappealable decisions regarding the nine workers dismissed in February 2018. The court found that they had been unfairly dismissed on the basis of their union activity and ordered their reinstatement. The complainant indicates, however, that in each of these cases, enterprise B opted to pay compensation rather than reinstate the workers when they applied to the court to get their jobs back. The complainant also informs that cases are still pending for three workers who were dismissed from the Kocaali plant.
14. 325. As regards enterprise C, the complainant indicates that it is a global producer, marketer and provider of technology-based natural ingredients, ingredient systems, and integrated solutions for the food and beverage industries. It states that for five years, enterprise C’s local management has engaged in a concerted effort to deny workers their right to organize, and that an environment of fear was created as a result of repeated acts of intimidation, harassment and anti-union discrimination by the employer.
15. 326. The complainant states that in March 2016, the Ministry of Labour granted collective bargaining status to the Tekgida-Iş, which led enterprise C to dismiss 32 workers who were members of the union. It indicates that even though the courts determined that the workers had been unfairly dismissed for union activity and ordered reinstatement in each of these 32 cases, enterprise C paid enhanced compensation in lieu of the court-ordered reinstatement.
16. 327. The complainant also indicates that, following a legal challenge by the enterprise which lasted four and a half years, the courts confirmed the Tekgida-Iş’ collective bargaining status and mandated collective bargaining, which should have begun on 1 January 2021. It indicates, however, that enterprise C’s local management failed to show up for negotiations and instead escalated its attacks on workers’ rights.
17. 328. The complainant states that on 9 January 2021, the local management started to illegally interrogate workers, requesting their e-state details in order to check their union status and pressure them to resign their union membership. According to the complainant, the workers who refused to disclose their e-state details have been dismissed.
18. 329. The complainant also states that enterprise C’s local management forcibly transferred workers to a subcontracting company in order to remove them from the bargaining unit and undermine the union’s status as a collective bargaining agent. It indicates that enterprise C transferred 105 of its permanent “core” workers, including more than 40 union members, by forcing them to resign and be re-employed by the subcontracting company.
19. 330. The complainant indicates that the Turkish legislation clearly provides that subcontracted workers cannot perform “core” production tasks. In this regard, it refers to a March 2021 inspection report from the Ministry of Family, Labour and Social Services which indicated that enterprise C had violated the Labour Act and that a fine had been assessed against it and the subcontracting entity for those illegal actions.
20. 331. The complainant also states that on 17 May 2021, as members of the Tekgida-Iş were arriving at enterprise C’s Karaman factory to decide whether they would exercise their right to strike, they were met by a large police presence with riot gear and water cannons, which is not common for strikes in Türkiye unless specifically requested by an employer. The complainant indicates that the workers ultimately did not go on strike and that this decision, on the basis of the requirements of sections 47 and 60 of the Law on Trade Unions and Collective Labour Agreements, gave enterprise C the possibility to challenge Tekgida-Iş’ collective bargaining status, which it opted to do.
21. 332. The complainant stresses that the climate of impunity which incentivizes employers to keep committing violations of trade union rights is created by the deficiency in Turkish law and practice, and insists on the importance to bring them into conformity with Conventions Nos 87 and 98.

B. The Government’s reply

1. 333. In its communications dated 1 and 20 September and 27 October 2021, the Government points out that the Labour Act and the Law on Trade Unions and Collective Labour Agreements were prepared in accordance with Conventions Nos 87 and 98. The Government indicates that in case of termination of an employment contract for reasons of trade union activities, a worker shall have the right to apply to the court, as stipulated in sections 18, 20 and 21 of the Labour Act.
2. 334. The Government further indicates that, according to section 21(1) of the Labour Act: “If the court or the arbitrator concludes that the termination is unjustified [...] the employer must re-engage the employee in work within one month. If, upon the application of the employee, the employer does not re-engage him in work, compensation to be not less than the employee’s four months’ wages and not more than his eight months’ wages shall be paid to him by the employer.”
3. 335. The Government also informs that that section 25(5) of the Law on Trade Unions and Collective Labour Agreements stipulates that: “Where it has been determined that the contract of employment has been terminated for reasons of trade union activities, union compensation shall be ordered independent of the requirement of application of the worker and the employer’s granting or refusing him permission to restart work in accordance with article 21 of the Law No. 4857.”
4. 336. The Government refers to Article 10 of the Termination of Employment Convention, 1982 (No. 158), which provides that if a termination is considered as unjustified by the courts and if they are not empowered or do not find it practicable, in accordance with national law and practice, to order or propose reinstatement of the employee, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate.
5. 337. The Government confirms that the national legislation does not contain provisions on absolute reinstatement to work, and instead stipulates the right of the employer to choose whether to rehire the employee or to pay an additional compensation. In this regard, it points out that, according to civil law, no employer should be forced to recruit a worker. The Government therefore considers that the complaint, which denounces the fact that dismissed workers were awarded compensation in lieu of reinstatement and alleges that the sanctions provided for in the national legislation are not deterrent, is unfounded.
6. 338. In its communication dated 27 October 2021, the Government also forwards the observations of enterprise A on the allegations in the present case. Enterprise A emphasizes that it adheres to the principles of freedom of association and prohibits discrimination against employees on the basis of union membership or affiliation. It explains that, as a result of the Government’s decision to reduce the domestic sugar quota in March 2018, it was forced to make economic decisions in order to ensure the continued viability of its starches and sweeteners business, which led to the dismissal of 16 employees, including 14 blue-collar workers, at its Orhangazi facility.
7. 339. Enterprise A states that its local management made those difficult decisions after conducting an assessment of both performance and criticality to the ongoing business operations, and insists that union membership was not a factor taken into account. It indicates that the affected employees were offered three months of salary in addition to their customary severance packages, but that 14 employees decided to file civil lawsuits on 17 July 2018.
8. 340. Enterprise A informs that the courts rendered final and unappealable decisions in December 2019 and February 2020. It indicates that: (i) in four decisions, the court found that there was no discrimination on the basis of union status; (ii) in two cases, the employees were not unionized so the opinions were moot on the issue; and (iii) in the other eight cases, the court made a leap of logic and determined that, given the timing of the headcount reductions, discrimination would be presumed. Enterprise A states that it has paid all of the relevant severance required by the court orders, that the former employees have accepted the payments, and that these matters are therefore settled.
9. 341. As regards the seven dismissals which occurred between 2012 and 2015, enterprise A argues that they were due to legitimate reasons, including performance issues. It indicates that it was allowed by the courts to pay a union compensation as an alternative to reinstatement, and insists that those separations have been settled a long time ago.
10. 342. Enterprise A also rejects the allegation that trade unionists were warned that its rules would change in an unfavorable way if the bargaining unit status was obtained by the Tekgida-Iş. It insists that it is aware of no such warning and that it would take immediate and decisive action if it believed that such a warning had, in fact, been given.
11. 343. Enterprise A informs that in the context of the court cases involving the 14 dismissed workers, the Directorate for Guidance and Inspection of the Ministry of Family, Labour and Social Services performed an onsite visit at its Orhangazi facility and issued a report on 3 October 2019, in which it determined that the workers were not led or pressured to join or leave a union, and that the enterprise did not engage in any action with an intention to prevent the exercise of trade union rights.
12. 344. Enterprise A concludes by stressing that it complied with the Turkish legislation and did not discriminate against the employees who were dismissed. It also informs that only a small number of positions have been opened at its Orhangazi facility since 2018 and that none of the former employees at issue have applied for any of those roles.

C. The Committee’s conclusions

1. 345. The Committee notes that, in the present case, a trade union organization in the food industry alleges that the protection and remedies provided by the national legislation in cases of anti-union dismissal are insufficient. It further alleges acts of anti-union discrimination, including dismissals, threats and pressures, by three corporations, as well as acts of anti-union interference by one of the above-mentioned corporations.
2. 346. As regards the anti-union dismissals, the Committee notes that the complainant alleges that: (i) section 21(1) of the Labour Act and section 25(5) of the Law on Trade Unions and Collective Labour Agreements allow employers to pay enhanced compensation to illegally dismissed employees instead of complying with court rulings ordering their reinstatement; (ii) employers systematically take advantage of these provisions by dismissing workers when they attempt to exercise their right to organise, which creates an environment of fear and intimidation; (iii) since 2012, a total of 56 workers were dismissed for their union activity by enterprises A, B and C; (iv) in each of these cases, although a court ruling ordered the reinstatement of the dismissed employee, the employer opted to pay enhanced compensation when the worker applied to get his or her job back; and (v) cases are still pending regarding three workers who were allegedly dismissed for their union activity by enterprise B.
3. 347. The Committee takes note that the Government, in its reply, states that: (i) in cases of anti-union dismissal, the national legislation does not provide for absolute reinstatement but rather allows the employer to either rehire the employee or pay an additional compensation; (ii) under civil law, no employer should be forced to recruit a worker; (iii) as per Article 10 of Convention No. 158, if the courts consider a termination to be unjustified and are not empowered to order reinstatement, they shall be allowed to order payment of adequate compensation; and (iv) the allegation that the sanctions provided for in the national legislation are not a deterrent is unfounded. The Committee further notes that enterprise A, in its response that was communicated by the Government, indicates that: (i) it paid compensation to 15 former employees after court decisions established that they had been dismissed for their union activity; and (ii) while it disagrees with the court decisions, it considers that these matters are now settled.
4. 348. The Committee takes due note of the similar nature of the situations complained of in this case and the alleged lack of effectiveness of the sanctions provided for in the legislation to remedy cases of anti-union dismissal. The Committee recalls that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1165]. It further recalls that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [see Compilation, para. 1106]. The Committee also recalls that the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish [see Compilation, para. 1184]. The Committee considers that if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future. In view of the above, the Committee requests the Government, in cases of anti-union dismissal, to take the necessary measures, including legislative, in full consultation with the social partners, to ensure that employers are not given the option to choose to pay compensation prescribed by law in lieu of reinstatement where ordered and that sufficiently dissuasive sanctions are provided which render the possible remedy of reinstatement meaningful. It reminds the Government that it may avail itself of the technical assistance of the Office in this regard. Noting that legal cases involving three dismissed workers of enterprise B are still pending, the Committee also requests the Government to keep it informed of their outcome and to provide copies of the court decisions.
5. 349. With respect to the other alleged acts of anti-union discrimination, the Committee notes that the complainant states that: (i) a production manager of enterprise A told workers that there was no need for a union and warned them that the rules would change in a negative way if the Tekgida-Iş obtained the bargaining unit status; (ii) during meetings with workers, the local management of enterprise B threatened to dismiss all union members and to close its Kocaali factory; and (iii) workers in enterprise B and C were pressured to disclose their union status and resign their union membership. The Committee notes that the Government does not respond directly to these allegations but that enterprise A: (i) denies that it warned union members that its rules would change in an unfavorable way if the bargaining unit status was obtained; and (ii) indicates that the the Directorate for Guidance and Inspection of the Ministry of Family, Labour and Social Services visited its Orhangazi facility and issued a report dated 3 October 2019 which determined that the workers were not pressured to leave their union and that the enterprise did not engage in any action with an intention to prevent the exercise of trade union rights. The Committee requests the Government to provide a copy of the inspection report dated 3 October 2019 referred to by enterprise A.
6. 350. As regards enterprises B and C, the Committee recalls that direct threat and intimidation of members of a workers’ organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers’ freedom of association rights [see Compilation, para. 1100]. The Committee considers that, in order to guarantee effective protection against anti-union discrimination, it would be necessary to try to establish the veracity of the above-mentioned allegations made by the complainant and, if they are found to be true, to take appropriate corrective measures. The Committee therefore requests the Government to conduct without delay an inquiry into the alleged pressure exercised on workers of enterprises B and C to resign their union membership, and to keep it informed in this regard.
7. 351. Regarding the alleged acts of anti-union interference, the Committee notes that the complainant indicates that enterprise C: (i) refused to take part in negotiations with the Tekgida-Iş even though the courts confirmed the union’s collective bargaining status after a legal challenge which lasted more than four years; (ii) forcibly transferred 105 workers, including more than 40 union members, to a subcontracting company in order to remove them from the bargaining unit and undermine the Tekgida-Iş’ collective bargaining status; (iii) was fined in relation with the above-mentioned transfers, as the Labour Act provides that subcontracted workers cannot perform “core” production tasks; (iv) requested the presence of a large number of police officers with riot gear and water cannons at its Karaman factory while the Tekgida-Iş was conducting a strike vote, and again challenged the union’s collective bargaining status after the workers’ decision not to strike legally allowed it to do so. The Committee notes with concern that the Government, in its reply, does not address these allegations. The Committee recalls that recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking [see Compilation, para. 1355]. It further recalls that Article 2 of Convention No. 98 provides that workers’ and employers’ organizations shall enjoy adequate protection against acts of interference in their establishment, functioning or administration [see Compilation, para. 1187]. In view of the above, the Committee requests the Government to institute immediately an investigation into the allegations of anti-union interference by enterprise C and, if they are founded, to take the necessary corrective measures to ensure that the Tekgida-Iş is able to carry out its trade union activities without hindrance. The Committee requests the Government to keep it informed of any developments in this regard.
8. 352. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.

The Committee’s recommendations

1. 353. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in cases of anti-union dismissal, to take the necessary measures, including legislative, in full consultation with the social partners, to ensure that employers are not given the option to choose to pay compensation prescribed by law in lieu of reinstatement where ordered and that sufficiently dissuasive sanctions are provided which render the possible remedy of reinstatement meaningful. It reminds the Government that it may avail itself of the technical assistance of the Office in this regard. The Committee also requests the Government to keep it informed of the outcome of the legal cases involving three dismissed workers of enterprise B and to provide copies of the court decisions.
   • (b) The Committee requests the Government to provide a copy of the inspection report dated 3 October 2019 referred to by enterprise A.
   • (c) The Committee requests the Government to conduct without delay an inquiry into the alleged pressure exercised on workers of enterprises B and C to resign their union membership, and to keep it informed in this regard.
   • (d) The Committee requests the Government to institute immediately an investigation into the allegations of anti-union interference by enterprise C and, if they are founded, to the take the necessary corrective measures to ensure that the Tekgida-Iş is able to carry out its trade union activities without hindrance. The Committee requests the Government to keep it informed of any developments in this regard.
   • (e) The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.