Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Türkiye (Ratification: 1993)

The Government provided the following written information on the latest legislative developments relevant to the application of Convention No. 87 in Turkey.

The draft law amending the Constitution was enacted by the Grand National Assembly of Turkey (TBMM) on 7 May 2010 and published in the Official Gazette on 13 May 2010 as Act No. 5982. This Act is subject to a referendum to be held on 12 September 2010. The amendments of the Constitution of the Republic of Turkey which concern the application of the Convention include the following:

(1) Article 51, fourth paragraph that provides that “Membership in more than one trade union cannot be obtained at the same time and in the same branch of work” is repealed.

(2) The heading of article 53 is amended to read: “A. The right to collective labour agreement and collective agreement” and third paragraph is repealed. The following provisions are added to the said article:

“Public servants and other public employees have the right to conclude collective agreement.

If a dispute arises during the conclusion of collective agreement, parties may apply to the Public Employees’ Arbitration Board. Decisions of the Public Employees’ Arbitration Board are final and valid with the force of collective agreement.

Scope of the right to collective agreement, its exceptions, persons to benefit from the collective agreement, manner and procedure for conclusion of a collective agreement and its entry into force, extension of the provisions of the collective agreement to the pensioners, establishment of the Public Employees’ Arbitration Board, its working principles and procedures as well as other matters shall be regulated by law.”

The right to collective agreement is fully recognized for public servants and other public employees. In case an agreement is not reached during the collective bargaining process, a decision of the Public Employees’ Arbitration Board shall be final and become the collective agreement. As a result of this change, the existing discretionary power of the Council of Ministers shall cease. Moreover, pensioners are included within the scope of the collective agreement.

(3) The fourth paragraph of article 53, that provides that “more than one collective labour agreement at the same workplace for the same period shall not be concluded or put into effect,” is repealed.

(4) The third paragraph of article 54, that provides that the trade union will be liable for any material damage in the workplace during the strike and the eighth paragraph of article 54, that provides that “politically motivated strikes and lockouts, solidarity strikes and lockouts, general strikes and lockouts, occupation of work premises, labour go-slows and other forms of obstruction are prohibited” are repealed.

(5) A sentence is added to the second paragraph of article 128, so as to include social rights as well as financial rights in the scope of the collective agreement. The article now reads: “The qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other matters related to their status shall be regulated by law. However, provisions of the collective agreement regarding financial and social rights are reserved.” With this amendment it is stipulated explicitly that social rights as well as financial rights are included within the scope of the collective agreement and that these rights can be regulated by collective agreement.

(6) The heading of article 166 is amended to read: “I. Planning; Economic and Social Council”, and the following paragraph is added to this article: “An Economic and Social Council shall be established with the aim of communicating to the government advisory opinions on determining economic and social policies. The establishment and functioning of the Economic and Social Council shall be regulated by law.” With this provision the existing Economic and Social Council has become a constitutional institution and an important player in the field of economic and social policies.

(7) The third paragraph of article 129 is amended to read: “Disciplinary decisions cannot be outside the scope of judicial review” so as to ensure the right of the public servants and other public employees to have recourse to the judicial review of all of the disciplinary measures.

(8) The following paragraph is added to article 20: “Everyone has the right to the protection of personal data concerning him or her. This right also includes the right to be informed of the personal data concerning him or her and the right of access to this data, and the right to have it rectified or deleted, and the right to know whether it is used appropriate to its purpose. Personal data can only be processed in cases specified by law or with the open consent of the person concerned. Principles and procedures regarding the protection of the personal data shall be regulated by law.”

As proposed by the Conference Committee on the Application of Standards during the 98th Session of the International Labour Conference (2009) and also requested by the Committee of Experts in its latest observation concerning Convention No. 87, a visit of a high-level bipartite mission to Turkey took place from 3 to 5 March 2010. Members of the mission met with high-level representatives of the Ministry of Labour and Social Security, representatives of the confederations of the trade unions and public servants’ confederations and confederation of the employers’ organizations as well as the Chairperson of the Parliamentary Commission of Health, Family, Labour and Social Affairs. As was noted by the mission, the Government had prepared a new draft law on trade unions which had been submitted to the ILO for review. This new draft law, which had been prepared as the draft law currently on the agenda of the Grand National Assembly of Turkey, did not comply fully with the provisions of the Convention as pointed out in detail by the Committee of Experts in its latest observation. Consultations with the social partners on the amendments to the trade union legislation will continue until consensus is reached in light of the constitutional reform enacted by the Parliament and on the basis of full compliance with the provisions of the Convention.

The Government believes that it will be able to report to the ILO the entry into force of the constitutional reform when reporting in 2010 on other matters that concern the application of the Convention in time for the Committee of Experts to examine in its meeting in November–December 2010.

In addition, before the Committee a Government representative expressed his disappointment that this case was under discussion, as Turkey was a case of progress. A number of significant constitutional amendments had been approved on 7 May 2010. A referendum on these amendments was scheduled for September 2010. The amendments included the repeal of the prohibition of political strikes, solidarity strikes, general strikes and lockouts and labour go-slows. The provisions prohibiting membership in more than one union were repealed, in addition to the repeal of the prohibition of more than one collective labour agreement in one workplace. The amendments also recognized the right of public civil servants to conclude collective agreements. They included the establishment of the Public Employees’ Arbitration Board, with the power to establish a collective agreement when the parties were unable to, and the revocation of the discretionary power of the Council of Ministers in this respect. The liability of trade unions for any material damage caused in a workplace where a strike had been held was also repealed in these amendments. Lastly, the amendments provided constitutional status to the Economic and Social Council.

Pursuant to the 2009 conclusions of this Committee, and the request of the Committee of Experts, a high-level bipartite mission had visited Turkey in March 2010. The mission had noted the preparation of the draft Act on Trade Unions. A prior draft law on this subject had not been in full compliance with ILO Standards. Therefore a new draft Act on Trade Unions had been produced, following discussions at the Tripartite Consultation Board. The draft Act on Trade Unions involved the redesign of the main parameters of the industrial relations system and aimed to stipulate general principles rather than to regulate specific union activities. The important changes introduced in the draft law were: the lifting of the requirement for notary approval for union membership; the right to establish trade unions at the level of the workplace and occupation and the right to establish federations; the right of trade unions to determine their own statutes and to organize their activities; the repeal of the requirement of active employment for being a union official; the removal of restrictions on the establishment of trade unions in the radio broadcasting and television sector; the enhancement of protection for union officials and the simplification of the procedure for establishing a union. The draft Act on Trade Unions also contained provisions stipulating that financial audits of trade unions were to be conducted by independent auditors and that trade unions would not be closed due to the criminal acts of their officers. Prison sentences contained in the current Trade Unions Act would be replaced with judicial fines. Consultations with the social partners on this draft would continue until consensus was reached on the basis of full compliance with the Convention.

A peaceful celebration had been held on May Day on Taksim Square in Istanbul, 30 years after the decision to prohibit all demonstrations at this square. The security forces and trade unions had collaborated for this event. With regard to the comments of the Committee of Experts concerning the excessive use of force by security officials, several measures had been taken in 2009. Training for all police officers responsible for security at public marches and demonstrations had begun regarding the proportional use of force. Through this framework, training would be provided to 17,000 police officers annually. Riot police had also been equipped with helmets with communication devices and easily identifiable numbers. The speaker stated that the attendance of police officers at public trade union meetings was related only to the maintenance of public order. Pursuant to the legislation in force, security forces were not authorized to enter trade union premises unless they had obtained a court ruling. On the subject of the fire at the Egitim-Sen branch office in 2007, the speaker indicated that the security forces and fire brigades had intervened in a timely manner, and that three suspects had been arrested. One of these suspects had been sentenced to three years’ imprisonment. No trade union members had been harmed in the fire. The speaker expressed the hope that this progress would be taken into account in the Committee’s conclusions.

The Employer members appreciated the openness and transparency of the Government in the course of the high-level bipartite mission to the country which had taken place in March of this year. At this stage, however, they could not make a determination as to whether this case constituted a case of progress since this issue should be determined by the Committee of Experts. This was a long-standing case and had been discussed for the last time the year before.

The Government had reacted to the high-level bipartite visit with astonishing speed amending the Constitution in just 16 days. The constitutional amendment covered both private and public sector issues and would have to be analysed by the Committee of Experts in order to see whether it addressed all issues raised in the past. It was important to accompany this constitutional amendment with legislative reform as the labour inspectorate would rely on national laws and regulations, not constitutional provisions, in carrying out inspections. The new draft law was likely to constitute a more difficult challenge as there was a long history of various drafts discussed and presented to this Committee in the past. The previous drafts contained a number of discrepancies in relation to Convention No. 87. The new draft presented by the Government followed a different paradigm. It was nevertheless difficult to evaluate whether this new draft met the requirements of Convention No. 87 and it should be submitted to the Committee of Experts for analysis.

With regard to the new approach to the use of force by the police referred to by the Government representative in the light of numerous comments made by the Committee of Experts under the heading of civil liberties, the Employer members emphasized once again, as they did last year, that civil liberties constituted an essential prerequisite to freedom of association. Time would tell whether the solution proposed would work. Training would have to be provided to the police and cultural change would have to take place and this would unavoidably take some time. The information provided to the ILO in this regard would be valuable in assessing progress made in the implementation of the Convention.

In conclusion, the Employer members considered that this was an exemplary case illustrating how governments should react to bipartite missions carried out in order to make a better assessment of the national situation and express a point of view on the application of the Convention. After having taken the steps described today, the Government now needed to submit the information to the Committee of Experts. The Employer members looked forward to continued and sustained progress in this case.

The Worker members thanked the Government representative for the information provided on the matters that had been raised for several years by the Committee of Experts and the Conference Committee. The previous year, the Conference Committee had called for a high-level mission in the present case. The mission had taken place in March 2010. The Committee of Experts had noted in its report that draft legislation on trade unions, collective bargaining and strikes was being reviewed. However, it was questionable whether the situation had changed.

The Worker members observed that the Committee of Experts had itself noted the excessive use of force by the forces of order against trade unionists, the interference by the Government in the formulation of the constitutions of trade unions in the public sector by prohibiting any reference to the concepts of strikes or collective disputes, the refusal to recognize unions of retirees and the presence of the police during trade union meetings. An anti-union climate had developed, emanating from both the authorities and employers for whom trade union membership was a reason for pressure and dismissal.

In the education sector, the economic crisis was leading the Government to make employment more precarious. In the new school year, 142,000 teachers would be recruited under precarious ten-month contracts without social benefits. The increasing use of such contracts was leading to discrimination against unionized teachers, many of whom were forced to give up their membership to increase their chances of obtaining an employment contract in a context in which 327,000 teachers were unemployed. The teachers’ trade union (Egitim-Sen), suffered regular intimidation. Its web site had even been closed down for several days for criticizing a decision by the authorities. In May 2009, trade unionists of the Confederation of Public Employees’ Trade Unions (KESK), including 28 teachers from Egitim-Sen, had been arrested and imprisoned, in several cases for over six months. The judicial decision had been postponed and there had still been no ruling over a year after the arrests. The activities of the defendants were under close surveillance.

The Worker members denounced the worrying trend of the use of judicial harassment and charges of terrorist activities to keep trade unionists in detention or to ill-treat them.

Admittedly, the Committee of Experts had noted draft legislation on trade unions, collective bargaining, strikes and lockouts, although the Bills had still not been adopted or implemented. Although the Bills contained improvements, certain matters had not been addressed: certain categories of workers, such as the self-employed, domestic workers, high-level officials and prison officers were excluded from the right to organize; trade unions could only be established at the branch level, the branches being determined by the Ministry of Labour; and the right to strike was closely regulated. Finally, the 2004 Associations Act still allowed the Government to monitor the accounts of workers’ and employers’ organizations.

The Government had provided information on a draft amendment to the Constitution, which would be submitted to a referendum. The draft amendment would repeal certain provisions that were contrary to the Convention, by allowing several trade unions in the same branch, recognizing the right to collective bargaining in the public sector, allowing political, general and sympathy strikes, and abolishing the quasi-automatic liability of trade unions during strikes. Finally, the Government appeared to have changed its attitude concerning the commemoration of May Day.

While regretting that this information had not been provided to the high-level bipartite mission, the Worker members called upon the Government to submit a plan of action for bringing the legislation into conformity with Convention No. 87. Finally, they demanded an immediate cessation of the violence against trade unionists and of interference in the affairs of trade unions, without waiting for the legislation to be brought into conformity with the Convention.

A Worker member of Turkey expressed his appreciation for the ILO high-level mission and its contribution in making meaningful progress in terms of bringing the national legislation into conformity with Convention No. 87. Being in favour of the view that the constitutional amendments should precede the legislative reform, he noted that the Government had passed a constitutional amendments package at the Grand National Assembly which covered, among other things, part of the trade union demands on individual rights and freedoms. However, amendments making a clear distinction between contractual workers and civil servants, abolishing the prohibition of the right to strike in certain cases, and allowing trade unionists to preserve their trade union office in case of election to the Parliament were not included in the package.

The Government had communicated to the ILO a new draft law on trade unions which amended Acts Nos 2821 and 2822 just prior to the visit of the high-level mission. The draft had only been submitted for consultation at the Tripartite Consultation Board, after it had been communicated to the ILO. The trade unions expected that the Government would negotiate this draft with the social partners.

Contrary to the official figures, the unionization rate in Turkey had been estimated at less than 10 per cent. Trade unions faced problems in determining their representativeness for collective bargaining purposes. That was the case, for instance, for the Textiles, Knitting and Clothing Workers’ Union of Turkey (TEKSIF) trade union in textile factories employing thousands of workers in Denizli and Bursa. The draft amendments proposed to abolish the requirement of 10 per cent representativeness at branch level but maintained the absolute majority requirement at the workplace, thus generating a risk of inflating the number of employer-dominated unions in Turkey. The absolute majority requirement entailed a risk of dismissals of trade union members in order to prevent the unions from reaching the representativeness threshold, and constituted one of the most important obstacles to the exercise of the right to organize. Any draft which did not take these obstacles into consideration could not be accepted and would be contrary to Convention No. 87. Moreover, the Commission charged with fixing the industrial branches foreseen in section 5 of the draft, should be replaced by an autonomous and independent competency-fixing institution which should also deal with keeping the records of affiliation of new members. The draft would also prevent senior personnel who had the right under the current legislation to be union members, from joining trade union organizations. The draft amendments also abolished the current requirement to be active workers for founding trade unions or becoming executive board members. This might generate problems in practice as it would open the door to persons with no relationship to a trade union. The membership fees would moreover be fixed according to the principles and procedures identified in the trade union statute. This might restrict the members from joining a trade union of their own choice. The final draft also extended the restrictions regarding strike suspensions – which would be pronounced by a judicial body and not the Council of Ministers – as it would no longer be possible to continue a strike after the order for its suspension expired. Finally, provisions requiring trade union officials to give up their posts in order to run for office in municipal or general elections persisted.

Another Worker member of Turkey stated that the public sector trade union movement in Turkey had been facing significant problems which had already been discussed several times at the Conference Committee. Even though some theoretical changes had taken place following the high-level bipartite mission, nothing had changed in reality. The constitutional amendment which was under discussion concerned 21 different issues including some improvements in trade union rights like collective bargaining, but without the right to strike. The referendum was going to take place on 12 September if the proposed amendments were not blocked by the Constitutional Court in the meantime. Nevertheless, the adoption of legislative reform was more important than the constitutional amendment and a draft revising Act No. 4688 had already been agreed upon by the social partners since 2006. The new draft bill to amend Act No. 4688 would undermine some of the basic rights currently enjoyed by public workers’ trade unions in Turkey. Even though the public workers in Turkey enjoyed the right to strike by virtue of a decision of the European Court of Human Rights and a decree of the State Council of Turkey, their right to strike would now be banned through the amendment of the Turkish Constitution. Workers would be able to join more than one union, which would challenge the power of the largest trade unions. All these amendments had been decided by the Government without consensus by the social partners. According to recent articles in the press, a draft bill to amend Act No. 657 by limiting job security for civil servants had been recently submitted to Parliament, again without any consultation with trade unions, except one. This demonstrated the attitude of the Government towards social dialogue. After one-and-a half years in office, the Minister of Labour and Social Security had still not replied to the requests of the unions for a meeting to discuss the public workers’ trade union problems and communication channels from the Ministry were open only towards one confederation. To conclude, the speaker emphasized that the main problems were the lack of social dialogue, discrimination among trade unions, and efforts directed more towards making a good impression vis à vis the ILO and the European Union rather than making substantive progress. The speaker asked the Committee to send another high-level mission to the country.

The Employer member of Turkey stated that the amendment to the Turkish Constitution was going to open the way for general and politically motivated strikes, for the right to join more than one trade union and for collective bargaining for civil servants and other public officials. The Turkish employers were of the opinion that certain of these amendments would reduce the competitiveness of Turkish enterprises and negatively affect social peace. With regard to the new draft bills, he recalled that in April 2008, the Minister of Labour, the social partners and government officials had met and agreed on draft bills concerning trade unions and collective bargaining, strikes and lockouts. This had been an outcome of consensus and the draft bills had been submitted to Parliament in May 2008. However, these draft bills had been dropped later on. As proposed and requested by the Conference Committee, a high-level bipartite mission had visited Turkey both in 2009 and 2010 and had met with Turkish high-level representatives. Following these high-level visits, the Government had prepared a new draft law on trade unions and had submitted it to the ILO for review. The speaker expressed the expectation that consultations with the social partners on the amendments to the legislation would continue until consensus was reached.

An observer representing the International Trade Union Confederation (ITUC) stated that although at first sight, it seemed that some positive developments had taken place regarding freedom of association and the right to organize in Turkey, serious concerns existed about the exercise of these rights in practice. Against the very high level of expectations from the constitutional amendments, it should be reminded that article 90 of the Constitution already provided that international laws superseded domestic laws. However, this provision had never been implemented. It was equally important to remember that it might take a very long time, six to eight years, to integrate the constitutional amendments into laws just like it had happened with regard to the most basic civil servants’ rights in the past. Beyond all these shortcomings there were a number of hidden risks in the draft amendments to the Constitution. For example, while the ban on sympathy strikes had been removed, the provisions according to which workers could organize strikes only in case of collective disputes remained in the text.

Regarding the situation in practice, thousands of workers were being dismissed only because they had become members of unions affiliated to the Confederation of Progressive Trade Unions of Turkey (DISK) and were neither reinstated nor benefited from collective rights during the legal proceedings which usually took longer than two to three years. Many unions, like those representing young workers and pensioners as well as the Confederation of Small Farmers were faced with court proceedings aimed at their closure. Numberless examples existed for the systematic interference, mostly through harassment and threats, with efforts by KESK unions to organize public employees. Activities by KESK aimed at awareness-raising were prohibited in public institutions and posters were removed only because they criticized government social policies. The President of the Office Employees Union of KESK had been dismissed officially for being involved in ideological activities. Throughout 2009 many KESK executives, representatives and members, particularly those who raised issues related to discrimination of the Kurdish minorities, had been arrested and imprisoned without being charged with any specific crime. All peaceful demonstrations organized by KESK and its affiliate unions had been violently attacked by police forces with tear gas. In April 2010, a peaceful press conference organized to support the strike of Tekel workers had been violently prevented by thousands of policemen. Many members and activists including an executive committee member of KESK had been injured in the clashes. Following a one-day strike organized by KESK on 25 November 2009 in support of trade union rights of public employees, hundreds of members had been penalized with sanctions, salary reductions, etc. Sixteen members of the KESK transportation employees union had been dismissed only because they had joined this action.

Unfortunately, missed opportunities were also to be noted, like the consensus reached by the social partners in the Bursa meeting organized by the Labour Ministry in May 2008. Due to internal constraints inside the Government itself, this consensus had not been given concrete expression into a draft proposal. Instead, after a number of serious modifications made by the Labour Ministry, the consensus text had changed altogether. To conclude, the obligation of the Government was not to wait for consensus between the social partners or to make any organization happy; it was to do what was required of it under its international commitments.

The Worker member of Germany stated that the German trade union movement was preoccupied by the persistent violations of trade union rights in Turkey even more so since German enterprises or their suppliers which operated in the country contributed to these violations and profited from them.

The Committee of Experts had consistently observed that the Government was opposed to the creation of trade unions. Act No. 2821 obliged trade unions to certify their creation and dissolution by a notary. The tariff for trade union affiliation was the equivalent of €18. For six million workers whose minimum wage was the equivalent of €300 per month these fees were impossible to pay. The unions were obliged to pay the fees themselves and thus, the number of trade union members depended on the financial capacity of the organization. The draft law provided for the elimination of this condition but it had been presented in May 2008 and had still not entered into force. The Government should stop slowing down the adoption of this law.

The Committee of Experts had also referred to the violation of Article 2 of Convention No. 87 to the extent that according to Act No. 2822 a trade union could be recognized as negotiating agent only if it had more than 50 per cent of employees in an enterprise and represented more than 10 per cent of workers in the sector. This deprived 49.99 per cent of employees of the right to organize. Some trade unions could be deprived of negotiations for many years because the employer had lodged appeals which had a suspensive effect on negotiations. For example the Birlesik–Metal trade union which functioned in the automotive sector and had well over 50 per cent of employees, had been deprived of the right to bargain collectively for 820 days. Another enterprise had been split into two in order to prevent the trade union from attaining the representativeness threshold of 50 per cent. These situations showed the extent to which the legal regime allowed employers to violate trade union rights. Moreover, workers were the object of harassment in order to leave the unions.

The German trade union movement called on the Government to rapidly introduce the necessary legal amendments in order to conform to Convention No. 87 and requested European Union members to take into account the respect of trade union rights in the context of negotiations on the accession of Turkey to the European Union.

The Worker member of Japan stated that swift measures were needed to amend Act No. 4688 and the Constitution in order to address a series of issues concerning the right to organize of public employees. These included the exclusion of a number of public employees from the right to organize; the removal of trade union executive bodies in case of non-respect of requirements set out in the law; the termination of trade union office by reason of the transfer of a trade union leader to another branch of activity or his/her dismissal or simply the fact that a trade union leader left work; prohibition of strikes in many services which could not be considered as essential in the strict sense of the term; and heavy sanctions such as imprisonment of workers participating in unlawful strikes.

Most disconcerting was the growing trend of judicial persecution of public sector trade unionists. Seher Tumer of the Trade Union of Public Employees in Health and Social Services (SES), had been arrested last year and sentenced to more than seven years’ imprisonment, only because of her lawful activities in the labour and women’s movement. Meryem Ozogut of the SES, as well as Metin Findik, Ferit Epozdemir and Bestas Epozdemir, from the Municipal Employees Union (Tum Bel Sen), had also been recently arrested in a similar manner. In addition, many municipality workers had been forced to resign from their union or had been dismissed. It was very regrettable that no progress had been made in practice and the situation was very serious and critical.

As for the legislative measures, the constitutional amendment did not seem to comply with the Convention in terms of the right to strike and had been adopted by Parliament without prior consultation with the social partners. Although constitutional reform was necessary to fully guarantee the right to organize, including the right to strike, the amendment of Act No. 4688 was urgently needed. The workers had waited enough and no more delay could be tolerated. The speaker requested the Government to take active steps by all means to ensure sufficient and meaningful dialogue aimed at effectively addressing all issues under Convention No. 87 in law and in practice, including by guaranteeing public employees the right to organize and the right to strike for those who were not exercising authority in the name of the State.

The Government representative indicated that he wished to respond to some comments made during the discussion. Regarding the allegations of dismissals on the grounds of anti-union discrimination, he emphasized that provisions guaranteeing protection against anti-union discrimination existed in both the Constitution and labour legislation. Acts of anti-union discrimination by employers were considered as a crime punishable with one to three years’ imprisonment under the Penal Code and compensation consisting in no less than one year’s wage and possibility of reinstatement. During the economic crisis not only dismissals but also anti-union discrimination might increase and this could happen in any country. In such cases, both unions and workers had judicial means to contest such actions and were advised to have recourse to the means available.

With regard to the excessive use of force by the security forces, the Government had taken the necessary measures to prevent the occurrence of such incidents which largely occurred for two reasons. One was related to the infiltration of illegal organizations into the marches and demonstrations organized by the trade unions, and the other related to the unnecessary insistence of trade unions to organize such meetings in streets and squares which were not allocated for such purposes. In any case, trade unions and workers had all the legal means to contest any acts of the security forces.

The Government representative stated that Turkey was a country faced with secessionist and terrorist activities and attacks. During the last 30 years, terrorist activities had claimed more than 30,000 lives in Turkey. The arrest of trade unionists under suspicion of having links with an illegal organization should not be criticized, as it was entirely legal to do so in any country of the world. Trade union members should not be considered an exception to this rule. The KESK officers mentioned during the discussion had been arrested in May 2009 as part of an operation conducted against terrorist organizations under the Act on the fight against terrorism. The Court had released the detainees while a decision was pending. Ms Ozogut had been charged along with 13 other associates for belonging to a terrorist organization and making propaganda in favour of such organization. This was not related to trade union activities.

With regard to consultations with the public servants’ trade unions, he indicated that two workshops had been organized in February and March on trade union rights of public servants with the participation of representatives of trade unions, relevant ministries and public organizations as well as academics. These two workshops provided a forum to discuss possible changes to the public servants’ trade union legislation. Furthermore, a Public Personnel Consultation Board under the presidency of the Minister of State had been established with the participation of the three most representative public servants’ trade union organizations to develop a participatory management and better communication between decision-makers and trade unions. Thus, consultation with public servants’ trade unions largely took place through the state ministry responsible for public personnel issues. In addition, measures agreed during the collective negotiations between the public employers’ board and public servants’ trade unions were being implemented through the circulars of the Prime Minister’s office such as the circulars of July 2009 and January 2010 as well as through laws where necessary.

Regarding Act No. 4688 on public servants’ trade unions, the constitutional amendment would provide a new framework for public sector collective bargaining, and legislative amendments would follow the approval of the Constitution. The 10 per cent representativeness requirement would be lifted upon adoption of the draft Act on Trade Unions. In conclusion, the speaker assured the Committee that the criticisms regarding some aspects of the legislation were being addressed in the latest draft law. Consultations would continue and improvements were always possible.

The Employer members were of the view that the Government should be commended for its action in relation to the constitutional amendment, the measures to address the issue of excessive use of police force, and the statutory provisions on trade union rights. However, the constitutional provisions and the proposed legislative reforms were not yet in force. The constitutional provisions would enter into force at the soonest in September 2010 pending the outcome of the referendum. The Employer members were unclear as to when legislative amendments to Acts Nos 2821, 2822 and 4688 would be adopted. The previous proposals had not been enacted and were giving rise to problems in relation to the Convention. To its credit, the Government had acknowledged this fact and had sought to correct them. The Employer members hoped that the Government would act with the same speed in adopting the legislative amendments as with the constitutional provisions. In the meantime, the Government should provide a report on both the constitutional amendments and the legislative provisions to the Committee of Experts.

The Worker members said that, in their view, the trade union situation in Turkey was more worrying than ever. The Government should take immediate measures to end attacks on trade unionists and interference in union affairs, and to stop the use of anti-terrorism legislation for anti-union purposes. To that end, the Worker members requested the Government to accept ILO assistance in the process of reforming the Trade Union Act in order to bring it fully into line with Convention No. 87. Recalling that such a request had already been made by the Committee the previous year, the Worker members insisted that ILO assistance should be permanent and that the Government should submit a plan of action, accompanied by a precise timeline, for revising trade union legislation in consultation with the social partners. Lastly, the Government should report to the Committee of Experts on progress made before the end of the year.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the debate that followed. The Committee also noted that an ILO high-level bipartite mission visited the country from 3 to 5 March 2010, pursuant to a request of this Committee in June 2009.

The Committee observed that the Committee of Experts’ comments had been referring for a number of years to discrepancies between the legislation and practice, on the one hand, and the Convention, on the other, concerning the rights of workers in the public and private sectors without distinction whatsoever to establish and join organizations of their own choosing, and the right of workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their activities without interference by the authorities.

The Committee welcomed the Government’s statement according to which the draft law amending the Constitution was enacted on 7 May 2010. Subject to a referendum to be held in September 2010, this law would repeal or amend several provisions which restricted the right to organize. In particular, provisions prohibiting trade union membership in more than one trade union and existence of more than one collective agreement at the same workplace for the same period would be repealed; the right of public servants to bargain collectively would be recognized; a provision prohibiting political and sympathy strikes would be repealed; social and economic rights would be included in the scope of collective agreements; the right of public employees to have recourse to the judicial review of all disciplinary measures taken against them would be ensured; and the protection of personal data would be guaranteed. In addition, the Government representative referred to the 2010 May Day celebrations that took place in a fully peaceful environment. The Government had taken measures to prevent the excessive use of force by the police and had begun a training programme in this regard.

While taking due note of the information provided by the Government of the steps taken to avoid police violence and undue interference, the Committee continued to observe with regret the allegations of important restrictions placed on freedom of speech and of assembly of trade unionists, particularly in the health and education sectors.

It again recalled the importance it attached to respect for basic civil liberties and urged the Government to continue to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee urged the Government to review, in full consultation with the social partners, any legislation that might have been applied in practice in a manner contrary to this fundamental principle and to consider any necessary amendments or abrogation.

The Committee took note of the Government’s statement according to which a new draft law on trade unions had been prepared by the Government and that in light of the constitutional reform, consultations with the social partners would continue, based on a precise schedule. In this regard, the Committee urged the Government, as it did last year, to elaborate a plan of action with clear time lines to be presented to the Committee of Experts for monitoring and to engage in ongoing assistance with ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688. It requested the Government to provide detailed and complete information on all progress made on these issues and on the outcome of the constitutional reform and to transmit all relevant legislative texts, in its report due to the Committee of Experts at its meeting this year.