Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

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

A Government representative noted the observations of the Committee of Experts with respect to protection against anti-union discrimination, limitations on collective bargaining, the right to organize for public servants, and collective bargaining rights of workers in export processing zones (EPZs).

With regard to anti-union discrimination, he recalled that the Government had submitted with its latest report the copies of several judicial decisions which, in the words of the Committee of Experts, showed that compensation in cases of various acts of anti-union discrimination was granted quite frequently. He pointed out that in such cases, section 31 of the Trade Unions Act provided a compensation of not less than the total amount of the worker's annual salary. This amount could also be increased by contract or collective agreement or by the ruling of a court. This was neither a fixed amount, nor did it affect the rights of the worker concerned under labour legislation or any other law.

Turning to the issue of alleged limitations on collective bargaining, he recalled that the Committee of Experts had noted that legislative limitations on collective bargaining did not appear to be observed by organizations of workers which, in practice, were free to pursue free collective bargaining. In this respect, he informed the Committee of the preparation of two draft bills amending several Acts, including the Trade Unions Act (No. 2821) and the Collective Agreement, Strike and Lockout Act (No. 2822), which took into account the Committee of Experts' comments in order to promote freedom of association and collective bargaining in Turkey. These two bills had been communicated to the social partners for their views and a meeting had been held on 30 May. Consultation with the social partners would continue in the coming weeks. These draft bills provided for the improvement of collective bargaining rights and workers' protection against acts of anti-union discrimination. For example, in order to give legal status to the already existing active involvement of confederations in coordinating bargaining activities of their affiliates, the proposed amendment empowered them to conclude basic agreements at the national level with a view to setting broad-based standards as guidelines for their affiliates' bargaining activities. The proposed amendments also introduced definitions and legal clarity with regard to "group (multi-employer) collective agreements", which in practice performed the function of industry-wide agreements.

With respect to the issue of dual criteria for determining the representative status of trade unions for collective bargaining purposes, he pointed out that the Government had proposed to the social partners in the above draft bill the lifting of the requirement of 10 per cent membership of the union in the relevant branch of industry. If this provision was accepted by the social partners, a trade union that had the majority of the workers at the workplace would have representative status for bargaining purposes. The final form of the proposed legislation would depend on the response of the social partners and the parliamentary process.

On the issue of the right to organize for public servants, he indicated that the draft bill on public servants' unions had not been enacted due to the request of opposition parties for its revision and the holding of general elections in Turkey. A new draft bill was now on the agenda of the Parliament and was currently being debated at the Parliamentary Committee on Planning and Budget. He drew the present Committee's attention to the fact that the draft bill submitted by the Government had already been amended by the Parliamentary Committee on Health and Social Affairs and that it might be further amended before its enactment.

With regard to the question of EPZs, he informed the Committee that an amendment had been proposed to repeal the provisional article 1 of Act No. 3218 of 1985 on export processing zones. With the abrogation of compulsory arbitration, which had only been imposed for a ten-year period, there would be no restriction on the collective bargaining rights of workers employed in EPZs.

He emphasized that Turkey attached great importance to the involvement of workers' and employers' organizations in formulating and implementing the measures envisaged by Convention No. 144. In fact, a bill on the establishment, working methods and principles of the Economic and Social Council had been prepared through consultations with the social partners and was currently on the agenda of the Council of Ministers. When enacted, the draft bill would give a legal status and strengthen and institutionalize the social dialogue system at the highest level, a practice which had already been in effect since 1995 under several government circulars. In conclusion, he informed the Committee that an Agreement for Cooperation between the ILO and Turkey would be signed very soon, which would provide for the continued good cooperation between the ILO and the Turkish constituents with regard to the promotion of the four strategic objectives of the Organization.

The Employer members noted that the Committee had discussed the case of Turkey 18 times in the last 20 years, making this the most discussed case before the Committee, a fact which was, however, no indication of the seriousness of the case in comparison to other cases. Employer members stressed that in relation to this case the Government representatives had always appeared in the Committee and that the Committee had always noted progress in the matters addressed by the comments of the Committee of Experts.

Turning to the contents of the case, they took note of the number of judicial decisions made in relation to Articles 1 and 3 of the Convention which showed that compensation in cases of various acts of anti-union discrimination was granted quite frequently. The compensation provided in such cases was not less than the total amount of the worker's annual salary, an amount which the Employer members considered as quite high. In this regard, the Committee's conclusions should reflect that the Committee of Experts had not criticized this point, but had only requested the Government to continue to provide information on this matter.

As concerns the issue of the prohibition of collective bargaining for confederations, the Government had explained in its report that the heterogeneous structure of confederations had made it difficult to conclude agreements along vertical lines, but that the active involvement of the confederations in the bargaining process was a widely accepted practice. In this respect, the Employer members were of the opinion that it was more important to note that such collective bargaining was indeed carried out in practice, rather than to examine the existence of legal provisions which were not applied. As to the constitutional provision stipulating that no more than one agreement might be concluded for an establishment or enterprise within a given time span, they noted that industry-wide bargaining existed in practice and that collective labour agreements covered whole branches of activities.

With regard to the ceilings imposed on indemnities through law, but which, however, could be increased through negotiation, the Employer members stated that this was in their view a normal approach to the matter. They noted that the amount of such indemnities was one month's salary per year of service, which was higher in some cases than indemnities paid in more developed countries. They believed that the Committee of Experts' comment on this point was more on general aspects of Article 4 regarding the promotion of collective bargaining. The Employer members wished to recall once again the importance of the functioning of collective bargaining in practice.

Referring to the issue of the right to organize for public servants, the Employer members noted that the draft bill on public servants' trade unions had failed to be approved, and that new proposed legislation on this question had been submitted to Parliament.

On the issue of criteria contained in legislation determining the representative status of trade unions for collective bargaining purposes, they noted that this was a question well-known to the Committee. They noted that the Government was in favour of amending the relevant provisions, but that the social partners had rejected this proposal. Nonetheless, legislation which imposed criteria for determining the representative status of trade unions for collective bargaining purposes was in violation of the Convention, it was the Government's obligation to bring such legislation in line with the requirements of the Convention. In this respect, the Employer members criticized the fact that while the social partners had blocked attempts to amend the legislation in question, Turkish workers' representatives continued to raise this issue at the Committee.

With regard to the question of imposed compulsory arbitration in EPZs for the settlement of collective labour disputes, they noted that the relevant legal provisions would soon expire.

The Employer members welcomed the establishment of a tripartite committee with a mandate to examine labour legislation and to propose amendments where necessary. In conclusion, the Employer members stated that the Government should be requested to continue to supply information, in particular on measures taken to remove any discrepancies which still might exist between existing legislation and the requirements of the Convention.

The Worker members thanked the Government representative for the information provided and his willingness to discuss the case in an open and frank manner. They hoped that this positive attitude would translate into real progress over the next year. This case, which had been discussed on many occasions in the past, offered both gratifying and frustrating aspects. It was gratifying when significant progress was made, such as the ratification of Convention No. 87 in 1993. However, it was also frustrating when anticipated progress failed to materialize. This tension had been reflected in the observation by the Committee of Experts. With regard to the application of Articles 1 and 3 of the Convention dealing with anti-union discrimination, the Committee of Experts had appeared to indicate that some progress had been achieved, but had requested the Government to report on the adoption of the new legislation promised in its previous report. Unfortunately, the Government representative had indicated that the new legislation was still pending before Parliament. The Worker members noted that, according to the Committee of Experts, a number of legislative restrictions on collective bargaining remained which had been in place for many years and conflicted with Article 4 of the Convention, despite indications from the Government that they would be lifted. These restrictions included the prohibition of collective bargaining for confederations, the constitutional restriction of one collective agreement per enterprise and the dual criteria for determining the representative status of trade unions. The current legislation gave the Ministry of Labour the power to certify the competency of trade unions before they could even begin negotiations. These powers were often used in an arbitrary manner and resulted in inappropriate delays in the bargaining process. The Worker members reminded the Government that it should be for the parties themselves to determine the level of bargaining and that the law should promote bargaining, rather than merely envisioning the possibility of collective bargaining. They added that the dual criteria for the representativeness of trade unions resulted in practice in the workers in many sectors not being covered by collective agreements as a result of disputes concerning the representativeness of their trade unions. However, despite the substantial legal restrictions on collective bargaining, the Committee of Experts had noted that some of these restrictions appeared to be ignored in practice, leaving workers' organizations to pursue collective bargaining relatively freely. While the Worker members did not completely accept this view, they observed that if it were indeed the case it was difficult to understand why the Government refused to change the laws to reflect the practice. While understanding that parliamentary process often moved slowly, they recalled that it had been stalled for many years and the credibility of the Government was beginning to be called into question.

They also expressed frustration at the lack of progress in the adoption of the Bill on public servants' rights to organize and bargain collectively, which had also been stalled for many years. They hoped that the Bill was fully consistent with the Convention and ensured full collective bargaining rights to public servants, with the sole possible exception of those engaged in the administration of the State. The reference by the Committee of Experts to the recommendations of the Committee on Freedom of Association in a case concerning restrictions on the right of public servants to bargain collectively and government intervention in the collective bargaining process suggested that some concerns remained about the Bill. The Worker members therefore reminded the Government once again that the Convention required collective bargaining to be promoted, not merely envisioned or tolerated. With regard to export processing zones (EPZs), the Committee of Experts had requested the Government to take all the necessary steps to ensure the voluntary nature of collective bargaining in all EPZs, which were growing in numbers in Turkey as in many other countries. There were currently 17 EPZs in the country, employing 15,000 workers, with plans to establish another eight in the near future. It was particularly disturbing that not a single worker in these zones belonged to a union. Without trade union access to EPZs, workers could not enjoy any collective bargaining rights whatsoever, even though the ten-year period during which compulsory arbitration was imposed had come to an end in a number of EPZs. The Worker members called upon the Government representative to comment on this matter. The Worker members welcomed the progress which had been made in Turkey since the early 1980s in respect of the basic rights of workers. However, the Government appeared to have taken a pause. They therefore urged it to resume the progress of bringing its laws into compliance with its practice in the case of legal restrictions on collective bargaining and into full compliance with the Convention in general. While welcoming the spirit of dialogue shown by the Government representative, they emphasized that it was necessary for the promised changes to be finally put into practice. They also urged the Government to give serious consideration to accepting the ILO's offer of technical assistance to facilitate the elimination of the remaining obstacles to the application of the Convention.

The Worker member of Turkey also thanked the Government representative for the information provided, but recalled that the application of the Convention by Turkey had been examined by the Committee on 14 occasions since 1983. Although the power of the working people in his country was very effective in mass demonstrations, marches, rallies and industrial reaction, the problems relating to the legislation persisted because this power was not directly reflected in the political arena. He emphasized that the Trade Unions Act did not provide effective protection against anti-union discrimination, since the onus of proof rested with the victim. Moreover, the number of clandestine workers in Turkey was widely estimated at over 4.5 million, with another 750,000 illegally employed foreign workers, who were unable to go to the courts against employers in the event of their dismissal due to trade union activities. He added that, since Turkey had not brought its legislation into harmony with the Termination of Employment Convention, 1982 (No. 158), any attempt to exercise the right to organize met with the severest form of anti-union discrimination. He welcomed the fact that the Government recognized the discrepancy between national legislation and the Convention with regard to the prohibition of collective bargaining for confederations. The next step was to eliminate the discrepancy. The Government also accepted that the requirement of only one collective labour agreement in a workplace or enterprise was in violation of the Convention. Another provision which was in breach of the Convention was section 3 of Act No. 2821, which established the requirement to negotiate on behalf of all the workplaces of an enterprise. This meant that it was not possible to organize workers in only one of an enterprise's workplaces and negotiate on their behalf. Contrary to the Government's claims, he also stated that it was not legally possible to conclude industry-wide collective agreements. He added that industry-wide bargaining and group bargaining were different practices which only coincided very infrequently. In his country, the lack of industry-wide bargaining had left thousands of employees outside the scope of collective agreements in the banking and sea transport sectors. Furthermore, the restriction on the right to bargain collectively was not limited to the imposition of a ceiling on indemnities. Article 5 of Act No. 2821 stated that provisions contrary to the regulatory provisions of laws or regulations could not be included in collective labour agreements. Under this provision, any attempt to provide job security through collective bargaining, in accordance with Convention No. 158, was considered null and void. Indeed, the parties to such an agreement faced imprisonment. He also indicated that the 60-day time limit violated Convention No. 98 and should be repealed. Despite the Government's claim that strike action was entirely open-ended, he said that there was another 60-day time limit on the exercise of the right to strike after the decision had been taken to call a strike. If the strike was not initiated in that period, the right to strike was cancelled.

He reiterated that the whole of Turkish labour legislation had to be brought into harmony with ratified Conventions. While the Ministry of Labour preserved its power to issue certificates of competence to permit collective bargaining, while membership required the endorsement of the public notary and while only one collective agreement could be in force in each establishment, the repeal of the 10 per cent threshold would only lead to further problems. With regard to the right of public servants to bargain collectively, he emphasized the obligation under Convention No. 98 to promote collective bargaining for all public servants not engaged in the administration of the State. It needed to be taken into account in this respect that the term "public servants" in his country covered such categories of public workers as nurses, teachers, gardeners, clerical workers and train operators, who were deprived of many basic rights and freedoms. In Case No. 1989, the Committee on Freedom of Association had called upon the Government to refrain from having recourse to intervention in the bargaining process for public servants. However, over a year after these recommendations had been issued, they had not yet been honoured.

Turning to the issue of compulsory arbitration, with special emphasis on EPZs, he pointed out that the ILO supervisory bodies limited the prohibition of the right to strike to essential services in the strict sense of the term. In this respect, he emphasized that the petroleum, banking, mining, transport, supply and distribution of food and education sectors were not essential within the above meaning, yet in some of these sectors strikes were prohibited and disputes referred to compulsory arbitration in his country. For many years, the Turkish Government had been maintaining that restrictions on the right to strike were in accordance with the ILO's case law concerning essential services. Yet, the excessively broad interpretation applied to this criterion by the Government was illustrated by the recent suspension of strikes in tyre factories on the grounds that they were prejudicial to national defence. Moreover, compulsory arbitration was not limited to cases of the suspension of strikes. The wide range of restrictions and bans on the right to strike in his country led to compulsory arbitration in the case of interest disputes, as recalled by the Committee on Freedom of Association in Case No. 1810. With a view to attracting foreign companies, strikes and lockouts were not allowed for ten years following the establishment of EPZs. Any disputes occurring within the context of collective bargaining during that period had to be resolved by the Supreme Arbitration Council. This was in contradiction with the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. In conclusion, he stated that quite efficient tripartite structures existed in Turkey and that the Government had promised during the course of negotiations to resolve these problems. It was to be hoped that these promises would be honoured in the near future, that the necessary changes would be made in law and practice and that the case of Turkey would not have to be examined by the Committee in the years to come. He therefore urged the Government to take the necessary measures to eliminate the discrepancies between national law and practice and the Convention.

The Worker member of Sweden, speaking on behalf of the Nordic Worker members of the Committee, referred in the first place to the prohibition on collective bargaining by confederations in Turkey. The Government had explained that the heterogeneous structures of Turkish confederations made it difficult to conclude agreements along vertical lines. However, she emphasized that the main issue was not the structures of the confederations or their possible effects on their suitability to carry out collective bargaining, but the fact that they had been deprived of their collective bargaining rights in contravention of the Convention. The right to decide if, how, when and where collective bargaining should be carried out by confederations had to be left to the confederations themselves and their affiliates. They would be well able to determine how to distribute responsibility for collective bargaining amongst themselves, as was the practice in most other countries. She therefore welcomed the statement by the Government representative that the law would be changed on this issue. She also drew attention to the question of the right to organize of public servants and emphasized that the right to organize and to collective bargaining were fundamental rights, to which there should not be any exceptions at all. She supposed that the Government feared that the recognition of these rights would lead to extensive disputes in the public sector, and would harm society. She pointed out that there were different ways of securing the right to bargain collectively and the right to strike, while avoiding negative consequences in areas defined by the ILO as being essential services. For example, in her own country, an independent body had been established, composed of the parties concerned, which decided whether a strike endangered the life and health of the citizens. Due to the fact that the unions had ensured that strikes did not cause such harm, the body had never needed to take such a decision. She therefore emphasized that the recognition of collective bargaining rights did not automatically endanger society and expressed the view that there should be no restrictions on collective bargaining rights, including for public servants, irrespective of whether they worked at the local, regional or national level. If the social partners were trusted by being granted their full rights, they would assume their responsibilities and organize their activities in a serious and sensitive manner. She therefore called upon the Government to give the organizations of public servants full collective bargaining rights without exceptions.

The Government representative recalled that, unlike some other countries, the Turkish system of trade unions was based on the registration of trade union members. This tradition had a long history and had been introduced to counter the inflated membership figures given by some trade unions. He also drew attention to the statement by the Worker member of Turkey that the repeal of the 10 per cent requirement might cause tension and emphasized that, while the Government was willing to repeal this measure, it was first necessary to achieve consensus among the social partners before doing so. He added that, although collective bargaining was undertaken freely in Turkey, the process was often slow. It had been for this reason that the 60-day limit had been introduced. However, this limit did not mean that negotiation could not continue subsequently. He also reaffirmed that trade unions could have access to EPZs, including the right to organize and to collective bargaining. However, if disagreements occurred during negotiation, arbitration was imposed with a view to preventing strikes. Once again, the provisions respecting compulsory arbitration in EPZs were due to be repealed.

With reference to the statement made by the Worker member of Turkey concerning job security, he explained that cases of dismissal were in practice referred quite commonly to the courts and gave rise to judicial awards. He added that the Constitution provided that no more than one agreement could be concluded for an establishment or enterprise within a given time span. He explained that the dual system of industry versus establishment-level bargaining which had existed before 1983 had led to various difficulties and abusive practices involving the conclusion of successive local agreements under the pretext of industry-wide authorization. He stated, as recalled by the Committee of Experts, that industry-wide bargaining did exist in practice and that collective labour agreements covering a whole branch of activity were concluded in several industries. He cited figures showing that many industries were in fact covered by multi-employer agreements.

With regard to the question of ceilings on indemnities, he noted that the only indemnity on which a ceiling was imposed was severance pay. Under the Labour Act, severance pay amounted to 30 days' salary for each year of service. However, such indemnities could be increased by collective agreement, and in practice many agreements specified 45 or 60 days' pay for each year of service. In order to avoid excess, it had become necessary to impose a ceiling. A similar situation had occurred with bonuses, which amounted to one month's salary. Their number had been increased through bargaining from four to as many as 12 bonuses a year, thereby doubling wages. It had therefore proved necessary to establish a legal limit of four bonuses a year.

Turning to the issue of the right to organize of public servants, he referred to the draft legislation respecting public servants' trade unions and noted that many unions were active among public servants and engaged in collective bargaining in the municipalities. However, the social balance agreements had encountered problems in view of their implications on the state budget. Agreements would be concluded with public servants, but questions still needed to be resolved concerning the financial aspects of such agreements. With reference to the suspension of the strike by rubber workers, he noted that the strike could be postponed for 60 days. The dispute could be referred to arbitration, but the workers concerned had appealed to a higher level court. He was pleased to be able to inform the Committee that the parties to the dispute had now reached agreement. In general terms, although the recognition of the right to organize of public servants was on his Government's agenda, delays had been experienced due to the lengthy process of adopting legislation, especially in cases where there were conflicts of interest. The process had also been delayed by the General Election and the Presidential Election, as well as by the fact that the Government had been engaged in a number of major reforms, including the long-awaited reform of the social security system and the introduction of an unemployment benefit system. He noted in this respect that many changes to the labour legislation had been adopted since 1986, all of which had been a result of the comments and criticisms made by the ILO. He expressed gratitude for the important contribution that the ILO had made to the development of the social system and legislation in his country and was sure that the trend would continue. He mentioned in this respect two pieces of draft legislation which he would refer to the ILO once the response of the social partners had been received with a view to improving the text and when they had been translated. He added that a draft agreement had been reached concerning cooperation between the ILO and his country which covered four strategic areas.

He recalled that his country had a fairly well-developed industrial relations system and hoped that, by improving the legislation respecting trade unions rights and collective bargaining, it would be possible to avoid his Government having to appear before the Conference Committee once again. Finally, he informed the Committee that his country had recently ratified the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), and that the instrument of ratification of the Worst Forms of Child Labour Convention, 1999 (No. 182), had been submitted to Parliament for its approval of the ratification. Following agreement with the social partners, a further 15 Conventions were being considered for ratification, most of which concerned maritime issues.

The Employer members observed that although certain legal restrictions remained which were not in accordance with the Convention, most of these were not actually implemented and people generally acted as freely as they wished in such areas as collective bargaining. The Employer members believed that, in practice, this situation was to be preferred to cases in which all the legislation was in conformity with the Convention, but was in fact widely violated. They observed that over the years a number of small steps had been taken to bring the situation into greater conformity with the Convention and they expressed the belief that the Government would continue this process. They also considered that the manner in which the Committee had treated this case, which it had examined on 18 occasions over the past 20 years, had contributed to the progress which had been made. On the question of essential services, they recalled that this matter was not covered by Convention No. 98, although the Committee of Experts had developed an interpretation respecting such matters in the context of Convention No. 87 regarding possible restrictions on the right to strike. In conclusion, they recognized the progress which had been made and looked forward to further positive measures.

The Worker members noted the statement by the Government representative that trade unions in Turkey in practice had access to EPZs. However, they emphasized that not one single worker in any EPZ in Turkey belonged to a union or enjoyed the right to collective bargaining. The situation therefore violated the provisions of the Convention. They expressed the hope that the new draft legislation would recognize the full collective bargaining rights of all workers, including public servants, with the sole possible exception of those engaged in the administration of the State. While recognizing the progress that had been made in the application of the Convention since the Committee first examined the case in the early 1980s, they regretted that little progress had been made over the past few years in bringing national law and practice into line with the Convention. They added that no blame should be attached to the social partners in this respect and emphasized that it was the responsibility of the Government to take positive measures, with the technical assistance of the ILO, to achieve concrete progress.

The Committee took note of the statement made by the Government representative, as well as the discussion which took place thereafter. The Committee recalled that this case had been discussed by the Conference Committee on a number of occasions and pointed out once again that the Committee of Experts had been insisting for several years now on the need to eliminate restrictions on collective bargaining resulting from the double criteria for representativeness imposed on trade unions for collective bargaining, the importance of granting workers in the public sector the right to bargain collectively and the need to lift the imposition of compulsory arbitration for the settlement of collective labour disputes in all export processing zones. Recalling the Government's previous indication that legislation was being drafted to promote free collective bargaining between civil servants' associations and state employers, the Committee expressed the firm hope that such legislation would be adopted in the near future so as to ensure that Article 4 of the Convention also applied to this category of workers, with the sole possible exception of public servants engaged in the administration of the State. The Committee urged the Government to take the necessary measures to eliminate the discrepancies in the legislation so as to achieve full conformity with the Convention and asked the Government to supply a detailed report to the Committee of Experts on the concrete measures taken in this regard. It noted that draft bills amending the legislation in force were being discussed with the employers' and workers' organizations or submitted to Parliament. The Committee took note of the draft agreement for cooperation between Turkey and the ILO.