Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

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

The Government has communicated the following information:

The Government, in following up the objectives mentioned in the letter addressed to the Director-General, dated 30 April 1986, from the former Minister of Labour and Social Security, has given serious consideration to the matters related to industrial relations in Turkey.

In this connection, as a result of the consultations which were undertaken by the Government firstly with the other social partners and subsequently with a representative of the Office during a recent consultative technical mission and in the light of the desires expressed both by the workers and employers as well as by the ILO, and by taking into account points both related to these desires and to other factors, the Government has found it necessary to take up this matter anew in a more comprehensive manner in order to amend, in accordance with the changed national conditions, the Trade Unions Act No. 2821 and the Collective Bargaining, Strikes and Lock-out Act No. 2822. To this effect, it would naturally be necessary to consider certain provisions of the Constitution.

The Government is of the view that all necessary measures should be taken to realise a labour legislation in full conformity with ILO principles and standards. To this end the Government will engage again in meaningful tripartite consultations in Turkey. The Government also hopes to be able to benefit from the technical advice that may be rendered by the Office in this regard.

The Government intends to commence this exercise immediately and hopes that it will be concluded in the shortest possible time, provided that all the parties concerned fully and constructively participate in it, and an appropriate possibility of a legislative process be available.

In addition, a Government representative referred to the written information communicated by his Government and stated that the remarks formulated by the Committee of Experts with regard to the Convention No. 98 had been the object of a detailed examination on a tripartite basis and that a real effort had been made together with the employer's and workers' organisations to ensure better conformity with ILO standards in this field. He added that Act No. 3299 of 3 June 1986 embodied a certain number of amendments to Act No. 2822 of 1983 on the question of collective bargaining, strikes and lock-outs. Technical consultative missions visited Turkey at the invitation of the Government in April 1986 and April 1987 in order to discuss legislative amendments which were under consideration. The Government concluded from this that there were still a certain number of legislative problems, which were due to the fact that the law of 1983 had been adopted during the period of martial law in the 1980s, a period which had justified certain special measures. The political and social situation had improved considerably since then, at the national and international level. As a result the Government considered that all the necessary legislative measures could be and should be taken in order to ensure that the provisions of the labour law were in conformity with the principles and standards of the ILO, and to eliminate any element that was incompatible with either of these. The Government intended to undertake immediately a more thorough re-examination of the question which it hoped to complete as soon as possible, provided all the parties concerned participated fully and in a constructive manner in this process. He pointed out that the Government was also determined to maintain its fruitful co-operation with the ILO so as to endeavour to achieve its objectives.

So far as Convention No. 111 was concerned, the Government representative indicated that the state of emergency under Act No. 1402 would be lifted as from 19 July 1987 in the five provinces in which it was still applied. Independently of the existence of martial law, a certain number of guarantees existed in the national legislation against the risk of discriminating against someone on the basis of their political opinions. Article 10 of the national Constitution provided that everyone is equal before the law regardless of their political opinions and established the principle that the bodies of the State and administrative authorities must act in conformity with the principle of equality before the law. Furthermore, under article 125 of the Constitution, he said that all acts of the administration were subject to appeal. In the light of these provisions, out of a total of 4,530 public officials who had been dismissed, 3,999 cases have thus been re-examined up to today. In the five provinces in which martial law was still applicable, only five officials had been dismissed in the course of the past three years; he added that the last dismissal occurred in February 1986. Application of martial law No. 1402 was thus accompanied by the necessary legal procedures which ensured that its application did not lead to discrimination of a political nature or of any other kind. Furthermore, this law had not been applied since February 1986 and would cease to be in force once the state of emergency was lifted as from 19 July 1987.

The Worker member of Sweden stated that the case of Turkey had been discussed in the Committee for several years. Every time, the Government had committed itself to undertake measures to improve the situation but in reality, very little had been achieved. The exercise of the right to collective bargaining had been made practically impossible because of the exaggerated requirements in the law regarding the representative nature of trade unions and the right to strike, which was limited by a procedure which permitted postponement of a strike for a period of 60 days. This meant that it was extremely difficult to exercise the right to strike. She said that the right to collective bargaining was in fact an extension of the most basic trade union right: namely, freedom of association. The right to bargain collectively could only be fully exercised if workers' and employers' organisations had the basic right to organise their activities and to formulate their own programmes of action without interference from the public authorities. Much also remained to be done in that area. She said that Swedish trade union organisations were deeply worried about the trade union situation in Turkey and they hoped that the necessary legislative amendments would be adopted as soon as possible, so as to ensure the full application of ILO Conventions in the field of freedom of association, the right to bargaining collectively as well as the exercise of the right to strike and of lock-outs.

The Worker member of Greece expressed his agreement with the statement of the Worker member of Sweden, and informed the Committee that one of the Turkish trade union organisations had been banned. Under these conditions, he said that one could not consider that the right to collective bargaining existed freely in Turkey. The Government representative should be requested to provide information about the trials of Turkish trade unionists as well as information about the status of freedom of association in the country.

The Worker member of Turkey insisted upon the fact that the Government has not honoured the promise which it had made in 1986. It was regrettable that no progress had been achieved this year. He said that the technical evaluation mission of the ILO which had visited Turkey in April 1987 had described the general trade union situation in a perfectly clear manner. Acts Nos. 2821 and 2822 concerning trade union organisations, collective bargaining and strikes violated the fundamental rights recognised in Convention No. 98 and were not in conformity with the principle according to which these organisations have the right to organise their own administration and their activities and to formulate their programmes of action freely. The right to establish trade unions or to be members of them was forbidden to public officials, teachers in private schools, people working in religious institutions as well as to students who work. Candidates for trade union office should not have been sentenced for violating the provisions concerning collective bargaining and strikes. He pointed out that it was necessary to have worked for at least ten years before being eligible for trade union office. He added that any kind of political activity was forbidden to trade unionists. This meant automatically that leaders of trade union organisations and confederations could not exercise trade union functions when they accepted a post in the government or in a political party. The authorities had the right to make enquiries from time to time purely at their discretion on the internal affairs of trade union organisations and confederations. Ten per cent of workers occupied in a given branch of activity, as well as more than 50 per cent of workers employed in the establishment or enterprise, had to belong to trade union organisations in order for the right to collective bargaining to exist. Severe restrictions were imposed as far as the right to strike was concerned in several sectors which were not considered as essential services. The Government was entitled to postpone a strike and to submit the conflict to compulsory arbitration to a body controlled by the Government itself. The Government had not only failed to take any measures to give follow-up to the assurances it had given it 1986, but it had further aggravated the situation in extending to public enterprises, the application of Decree No. 2333 concerning private contracts of employment. The workers to whom this Decree applied did not have the right to be members of a trade union organisation or to take advantage of the provisions in collective agreements. Furthermore, three so-called public employers' organisations had been created in 1986 and these represented the State enterprises and public institutions as far as negotiations were concerned. Through these organisations which are managed by public officials, the Government settles everything which would normally be submitted to collective bargaining.

The Worker member of France referred to certain facts which showed that in practice there were severe restrictions on freedom of association, freedom of expression and the right to collective bargaining. In addition, the headquarters of the trade union organisation TURK-IS had been surrounded by the police at a time when about 700 trade unionist activists were assembled there with a view to submitting a petition to Parliament concerning social and political problems. He added that there had been a delay in granting a visa to the President of DISK, a trade union organisation which has been declared illegal, to attend the International Labour Conference. This was a violation of the principle of pluralism and of freedom of association which was not acceptable. The Turkish Government had requested adhesion to the European Economic Community. He pointed out that this was not simply an economic structure, but was also a political entity which required that traditional democratic principles should be applied in its member States. If the Turkish Government wanted to have the support of the European trade union movement in its request for adhesion to the EEC, it was necessary for it to correctly apply the international commitments it had undertaken, and especially to respect the basic Conventions of the ILO.

The Worker member of the United States stated that the information provided by the Worker member of Turkey illustrated the gravity of the actions of the Turkish Government. Section 37 of Law No. 2821 prohibited any kind of political activity on the part of trade union organisations and their confederations, which was in direct contradiction to Article 1 of Convention No. 111.

The Worker member of Norway recalled that the Norwegian Federation of Trade Unions had submitted a representation in 1982 against Turkey with regard to the violation of Convention Nos. 98 and 111 by Turkey. Five years later, Turkish legislation still seriously violated these two basic Conventions. In spite of its promises, the Turkish Government had not yet taken the necessary measures to amend Section 12 of Law No. 2822 which made it necessary for trade unions to satisfy unreasonable standards regarding their representative character before they could exercise the right to engage in collective bargaining. So far as Convention No. 111 was concerned, it was important to recall that, according to international standards on human rights, the establishment or maintenance of martial law was not justified, beyond cases of exceptional emergency which affected the life of the nation. Under these conditions, the maintenance of martial law in Turkey constituted a serious violation of the fundamental human rights recognised in article 15 of the European Convention on Human Rights, as well as in the ILO Constitution and ILO standards, and in particular in Convention No. 111. He stated that the maintenance of martial law could not be cited by the Government as a justification for not complying with the obligations it assumed when it ratified Convention No. 111. Since several years, this legislation had led to serious numerous instances of discrimination against public officials and against candidates for public office. The employees concerned have either been dismissed, transferred or sent to other regions on the basis of criteria that do not ensure a guarantee against discrimination based exclusively on political motives. Consequently, the Committee should express its profound concern about the maintenance of martial law in the five provinces concerned, as the provisions of this law involve serious violations of Convention No. 111 with respect to public officials. He added that the Committee should also note with regret the slow pace of the efforts undertaken to ensure the application of Convention No. 98 at the legislative level.

The Workers' members recalled that the right to collective bargaining was closely linked to freedom of association which was a fundamental principle of the ILO Constitution. Previous declarations showed that blatant violations had been committed in this area. An organisation had been dissolved, trade union leaders had been sentenced and the rights to collective bargaining and freedom of association had been ridiculed. The conditions imposed on trade union organisations if they were to enjoy the right to collective bargaining highlighted the fact that the aim of this policy was to ensure that only one trade union organisation could exist. The Government should not have the right to impose such measures; rather, the decision should be left to trade union leaders. In 1986 the Committee had due to the lack of time, decided not to discuss the case of Turkey but to take account of the written information provided by the Government and the assurances which it had given. The Committee had nevertheless insisted upon the fact that it was waiting to see if the promises given by the Government would be fulfilled as soon as possible in such a way as to enable the Committee to note progress at its following session. It was necessary to recognise that these promises had not been kept. What was even more serious, immediately after the discussion in 1986, the Government had held a press conference to emphasise the fact that the trade union situation in Turkey had not been criticised at the international level and to say that the problems which existed would be settled without external intervention. The Workers' members pointed out that such procedures did not facilitate dialogue and did not make it possible to achieve progress. Today, the Government representative had indicated that martial law would be lifted shortly in a certain number of provinces. In effect, the Government still appeared to want to preserve the possibility of intervening arbitrarily by talking of so-called dangers to the security of the State. In the written information communicated with respect to Convention No. 98, the Government had indicated that it intended to re-examine the question in the most appropriate manner but that it would obviously be necessary to take account of certain provisions of the Constitution. The Workers' members felt that the ambiguity of this remark was embarrassing. It implied that the Turkish Constitution contained provisions contrary to the Convention, or that the Convention as a whole could not be applied. The information provided in the context of Convention No. 111 was also not clear; no worthwhile responses had been provided in reply to the observations of the Committee of Experts. The reply did not show that any concrete progress has been achieved; it spoke only of promises and of declarations of intent. Under these conditions, they pointed out that the Government must take seriously the concerns expressed by the Workers' members.

The Employers' members recalled that, with respect to Convention No. 98, detailed reports had been provided by the Government. Although the Committee of Experts had been able to note with interest the development which had occurred in Turkey, considerable restrictions still limited the right to collective bargaining. With the assistance of the Office these problems had been discussed with the Government. The Government had now indicated that new proposals were under consideration with a view to modifying the legislation. In the light of this, the Government hoped to be able to discuss the details with a new mission from the ILO. It seemed that the Government was on the right track but it would still be desirable for the Government representative to specify if it was really the intention of his Government to take all the necessary measures to ensure that all the points raised by the Committee of Experts would ensure compliance with the Convention. They pointed out that it was also important to underline the fact, as noted in several statements made by the Workers' members, that the situation was, for the moment, still not in conformity with Convention No. 98. So far as Convention No. 111 was concerned, the Employers' members said that it would be desirable for the Government representative to indicate if the decision to lift martial law had been taken officially and if it would be published in the Official Gazette. They added that little information had been provided on the details of measures that had been taken, in particular as regarded dismissals and prison sentences. Further information was necessary since for the moment the situation was not in conformity with the Convention.

The Government representative recalled that a certain number of amendments to law No. 2822 of 1983 had been adopted in 1986 so as to ensure a better application of Convention No. 98, but given the fact that certain points still remain unresolved, the Government had decided to re-examine the question in a detailed manner. He added that this would take a certain amount of time since in a parliamentary system legislative reform did not depend solely upon the Government. It was essential to obtain the agreement of the social partners so as to ensure that a certain awareness existed in Parliament as well as in public opinion. Furthermore, it was necessary to develop a constructive dialogue with the ILO. He pointed out that political, economic and social life had evolved in a positive manner during the past few years which could not fail to have a favourable influence upon industrial relations. The Government was ready to comply with its international obligations and to take the measures necessary to amend its social legislation in such a way as to eliminate any element incompatible with international labour standards. He said that this would be accomplished in a period of time compatible with political, economic and social developments. It was Parliament which had taken the decision to lift martial law in the provinces where it was still applicable, with effect as from 19 July 1987. There would therefore no longer be any unresolved questions under Convention No. 111. So far as the demonstration organised by the Confederation of Turkish Trade Unions was concerned it should have requested prior permission, which it had never done. It was therefore normal that complications had ensued. His Government was conscious of the fact that in order to be able to adhere to the EEC, it would have to conform to the standards which prevailed in that organisation. Finally, a law of general amnesty had been submitted to Parliament. Parliament had adopted a law which permitted a certain reduction in prison sentences.

The Committee took note of the information communicated by the Government and its representative. It expressed its concern with regard to the serious divergencies which still existed between the national legislation and practice and Convention Nos. 98 and 111, in spite of the promises which had been made by the Government on several occasions. The Committee expressed the hope that these promises would be fulfilled in the very near future and that it would be able to note progress at its next session. If this was not the case, the Committee would be obliged to have recourse to other means with a view to ensuring conformity with the Conventions.