Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

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

The Government representative noted that the report of the Committee of Experts addressed three issues: the numerical requirement concerning the determination of a trade union eligible for collective bargaining; the trade union rights of public servants; and the conditions concerning strike postponements set out in section 33 of Act No. 2822 on Collective Labour Agreements, Strikes and Lock-outs.

Concerning the numerical requirement, the speaker recalled his statement to the Committee last year that endeavours to abolish the requirement concerning 10 per cent representation had failed because of the objections raised by the Confederation of Trade Unions of Turkey (TURK-IS) and the Confederation of Employers' Associations of Turkey (TISK). Nevertheless, the Government would continue to exert efforts in this direction. The speaker provided information on the progress that had been made during the last reporting period. The composition of the tripartite Economic and Social Council was modified by a decree issued by the Prime Minister in May 1996, to include representatives of not only the largest confederations of labour and employers, but also the representatives of labour and employer organizations with lesser membership. The Confederation of Progressive Trade Unions of Turkey (DISK), which had been criticising the 10 per cent requirement over the past years, as well as HAK-IS and the public servants, were now represented in the Economic and Social Council. Therefore, within the new structure of the Economic and Social Council, which would convene their meetings at quarterly intervals, the question of criteria for selecting representatives would be debated extensively and brought to a satisfactory conclusion.

Regarding the trade union rights of public servants, the speaker recalled that a draft Bill to regulate this issue had been rejected on the grounds that it had been incompatible with the provisions of the Constitution, but that this obstacle had been overcome during the past reporting period through the amendments introduced into the Constitution on 23 July 1995. Related efforts were also being made to draft legislation to regulate the trade union rights of public servants in accordance with the new amendments in the Turkish Constitution and the corresponding principles envisaged in Convention No. 151.

As for strike postponements, the speaker believed that section 33 of Act No. 2822 was in conformity with the Convention, and was not different from the wording suggested by the Committee of Experts. According to section 33, any lawful strike or lock-out that had been called, ordered or commenced may be postponed by a decree of the Council of Ministers for 60 days if it was likely to be "prejudicial to public health or national security". As far as he understood, the Committee of Experts had requested that this wording be amended as follows: "Any strike or lock-out may be suspended if it endangers the life, safety and health of the whole or part of the population". The speaker believed that there was no difference in substance between the two clauses. Furthermore, it was permissible to lodge an appeal with the High Court of Administration for cancellation of the decision of the Council of Ministers and for the suspension of the proceedings, and the interested parties had recourse to voluntary arbitration at any time. He added that a great majority of labour disputes falling within the scope of section 33 had been settled either by the parties agreeing between themselves or by referring the dispute to voluntary arbitration during the postponement period, and that of the 21 strikes postponed by the Government during the last 13 years, only two had been settled through recourse to compulsory arbitration. Furthermore, as emphasized last year, the Government could withdraw its decision to postpone the strike if the circumstances so justified, and that the Government had repealed its postponement decision in various cases once the conditions necessitating such action ceased to exist.

The speaker concluded by stating that the reply to the comments made by TURK-IS and DISK on the application of the Convention arrived in November 1995 and, as such, it had not yet been examined by the Committee of Experts.

The Workers' members regretted that, due to lack of time, the Committee was not able to discuss Convention No. 87, since both the Government and the Employers had said in the past that certain difficulties under Convention No. 98 would be solved after ratification of Convention No. 87. The Workers' members had had to wait several years for this ratification, and therefore hoped that a discussion on the application of Convention No. 87 would be held the following year. This case had been the subject of observations by the Committee of Experts for 15 years, and the same points had been raised in various complaints before the Committee on Freedom of Association. The positions of the Government, the Workers, and the Employers were well known, but the problems which had generated these discussions had not been solved and at best there had been only minor improvements. It was not good for the workers of Turkey, the Committee, or the supervisory system as a whole when this kind of situation was allowed to persist for so long without a clear stand by the Committee. The Committee had been very patient with the Government; although there were serious discrepancies between the Convention and national legislation and practice, the Committee had repeatedly expressed the firm hope that the Government would fulfil the promises it had made and give full satisfaction to the comments of the Committee of Experts. The optimism of the Employers' members concerning the political will and the problem-solving potential of successive Turkish governments had been a positive element, but the facts in this case did not provide a credible basis for such optimism after so many years. The increasing gap between the clear-cut judgements of both the Committee of Experts and the Committee on Freedom of Association on the one hand and this Committee on the other was not a good sign for the supervisory system. The responsibilities and the nature of the Committee's procedures differed from those of the Committee on Freedom of Association, but there had always been a sophisticated feedback between the regular supervisory procedure and the special complaints procedures which must be maintained and, in this case, perhaps even re-established.

The Workers' members endorsed the Committee of Experts' comments concerning the numerical requirements for membership of trade unions or collective bargaining, namely, the minimum of 10 per cent at the level of the branch of industry and more than 50 per cent in the company, which in Turkey is the bargaining unit. The Workers' members did not accept the argument of the Government that they could not change the legislation because the major trade union confederation and the employers' organization wanted to maintain these numerical requirements. The Committee of Experts had stated that these requirements were not in line with the Convention, and based their judgements on the body of "quasi case-law" built up over the years by the Committee of Experts itself and by Governments, Workers and Employers through the unanimous decisions of the Committee on Freedom of Association. The body of "quasi case-law" should have been the Government's point of orientation and not the opinion of large workers' and employers' organizations.

On the denial of collective bargaining rights of public servants not engaged in the administration of the State, the Workers' members fully supported the Committee of Experts' comments, based on "quasi case-law", that the present legislation still defined "essential services" much too wide. Here again, he reminded the employers that they were party to unanimous interpretations of the Conventions by the Committee on Freedom of Association. If governments disagreed with the judgements of the ILO they could seek a revision from the International Court of Justice. The only reason this hardly ever happened was that governments knew very well that these judgments were of high quality.

Finally, concerning compulsory arbitration, the Workers' members also supported the Committee of Experts' comments, and did not accept the argument that the legal provision was not significant since it was only applied when there were strikes and it led only to a temporary suspension of a strike. They stressed that it was a fundamental principle that the law should be in accordance with the Convention, regardless of whether it was applied.

The Employers' members noted that this case, which concerned three specific points raised by the Committee of Experts, was not a tragic situation. First of all, concerning the numerical requirement in terms of membership for a trade union to be authorized to negotiate collectively and to sign collective agreements, they noted that for years the Government had stated its readiness to bring about change but that the largest employers' and workers' confederations had been opposed. However, since tripartite negotiations appeared to be getting under way and to be including smaller trade unions, perhaps the outcome would be somewhat different once the negotiations were completed. They recalled that Article 4 of Convention No. 98 required free and voluntary collective bargaining but did not say anything about the acceptability of numerical requirements. The supervisory bodies had stated that it had always been accepted and recognized that the right to bargain collectively may be restricted to the most representative organizations. Consequently, it was possible to have a trade union with a membership of 51 per cent and another trade union with 49 per cent of the membership, in which case the one with 51 per cent of the membership would be the most representative one, and this would be in line with the opinions of the Committee of Experts and the Committee on Freedom of Association.

The Committee on Freedom of Association had also stated in similar cases that it was admissible to introduce limits on the ability to bargain collectively if the criteria were objective and had been determined beforehand, which the Employers' members believed was the situation in this case. Views would differ as to what figure was the most appropriate in a particular case. The Employers' members pointed out that although the Committee of Experts had been consistent in its determinations, new cases sometimes demanded new approaches. Furthermore, they stated that sometimes the Committee did not share the views of the Committee of Experts.

The Employers' members stated that the social partners and not the Government should be asked about the numerical restrictions since they were the ones who appeared to oppose any changes. They believed that optimism was justified since a new tripartite Economic and Social Council, where minority trade unions were also represented, had been established to address this issue. Furthermore, with regard to the second issue raised by the Committee of Experts, the Government had taken the uncommon step of amending its Constitution to enable public servants to engage in collective bargaining. Consequently, they were optimistic that the implementing legislation would also be enacted, since a greater majority was required to adopt a constitutional amendment than a regular law.

The third point dealt with compulsory arbitration for strikes in situations which were prejudicial to public health and national security, which was the Committee of Experts' definition of "essential services" as those which endanger the life, safety and health of the whole or part of the population and which the Employers considered as far too narrow. In the case of Turkey, restrictions on the right to strike were kept to very narrow exceptions, the approval of a court was required, and it was possible to refer the matter to voluntary arbitration. Therefore, they considered that this was not an alarming case since substantial changes had already occurred, and the Government was in the process of bringing about further changes through tripartite negotiations.

The Workers' member of Turkey informed the Committee that the recent constitutional changes had not repealed the ban on political activity of trade unions, and that the existing prohibitions in the Trade Unions Act and in the Act on Associations had been used recently against the Executive Committee of TURK-IS and the presidents of all affiliated organizations, it being alleged that they had supported certain political parties at the general elections last December.

Concerning the first point of the Committee of Experts, the speaker proposed a total tripartite review of the labour legislation in Turkey with technical assistance from the ILO, to bring it into harmony with the ratified Conventions Nos. 26, 87, 94, 98, 105, 111, 122, 151 and 158. Referring to the other violations of Convention No. 98, the Committee of Experts had stated that certificates of competence for collective negotiations should be issued by an independent body, but in Turkey, the Ministry of Labour and Social Security was entrusted with this task and had occasionally used this authority as a means of interfering in trade union affairs. In the case of anti-union discrimination in recruiting, the amended Trade Unions Act stipulated a minimum fine of only US$55 and placed the burden of proof on the victim. Furthermore, the union had to inform both the Ministry of Labour and Social Security and the employer about newly recruited members. No protection existed against dismissals or transfers of trade union leaders, or for shop stewards during a period following the expiry of their term of office. Confederations could not bargain collectively, the level of bargaining was specified by law, and collective bargaining at the industry level was prohibited. The law imposed limits on issues to be bargained collectively and prohibited any reference in collective agreements to the payment of wages for the period of strike. Furthermore, negotiations were limited to 60 days before mediation became compulsory. The speaker noted that the Government had not yet provided information regarding the Workers' comments.

Concerning public sector workers, the speaker regretted that the situation had deteriorated since last year. Currently, thousands of typists, drivers, machine operators, clerks, tailors, electricians, carpenters, welders, plumbers, nurses, dish washers, cooks, barbers, teachers, gardeners, etc., were employed in the public sector as "public servants". He recalled that Convention No. 98 specifically included in its scope all employees except the "public servants engaged in the administration of the State". He further recalled that as early as 1957, the Government representative had said that a Bill was "at present being studied" which dealt with conditions of employment of intellectual workers, which he hoped would give all the necessary guarantees to public servants. The speaker regretted that these and later promises had not been kept.

The speaker disputed the Government's claim that the amendment of article 53 of the Constitution granted public servants the right to join trade unions and to bargain collectively. In the amendment there was no explicit acknowledgement of the right to form and freely join trade unions of public servants. The only reference read, "trade unions and higher level organizations that shall be permitted by law to be established by the public servants ..." and therefore, the amendment had not improved the situation but, on the contrary, had caused a deterioration. In the absence of any constitutional provision regulating the right of association, it had been legally possible to exercise this right, whereas this amendment required the issuance of a permit by the promulgation of an Act which had not yet been done. Consequently, the PTT Public Employees' Trade Union (TUM HABER-SEN) was disbanded in December 1995. This amendment also denied public servants the right to bargain collectively. Although it granted unions the right to negotiate on behalf of their members, such negotiations had no binding effect whatsoever on the parties since enforcement was left to the discretion of the Council of Ministers, and therefore could not be considered collective bargaining within the context of Convention No. 98. Additionally, Decree with Force of Law No. 399 explicitly prohibited collective bargaining by contract employees in the public sector. The speaker urged the Government to acknowledge the right to collective bargaining in the public sector pursuant to Convention No. 98 and to eradicate any administrative action or interpretation of national legislation which created obstacles for the exercise of this fundamental right.

As to compulsory arbitration, the speaker stated that section 33 of Act No. 2822 stipulated that strikes could be suspended by the Council of Ministers if they were considered prejudicial to public health or national security. In contrast, the supervisory bodies of the ILO had defined "essential services" as only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

The speaker explained that the problem of compulsory arbitration could not be limited to the cases of suspension of strikes under section 33. In Turkey there was a total ban on strikes and thus compulsory arbitration in exploration, production, refining or purification and distribution of water, electricity, gas, coal produced for power plants, natural gas and petroleum, main petrochemical works, banking, public notaries, fire-fighting, urban public land, marine, railway and other transport, health and education institutions and national defence institutions. However, only a very small proportion of those workers within the scope of the complete prohibition of strikes in Turkey could be considered to be undertaking essential services. The speaker also mentioned that compulsory arbitration existed when a labour tribunal suspended a strike under section 47 of the Act because of alleged damage to society and to national wealth; in case of war; and in case of a state of emergency under martial law. The speaker concluded by stating that the Committee's interventions and resolution in this debate would contribute to bringing the labour legislation in Turkey into line with ILO principles and standards.

The Workers' member of Germany referred to the second issue raised by the Committee of Experts in its report, when it described the amendment of the Constitution as a positive aspect. The speaker stated that, as a consequence of this amendment, civil servants would be able to unionize and enter into negotiations. But it was still necessary to enact specific legislation to make this possibility an actual fact, particularly in light of the fact that the judicial authorities had dissolved the union of postal and telecommunications workers. He indicated that civil servants who were not employed in the direct administration of the State did not have the right to unionize or bargain collectively. He concluded by stating that it was unacceptable that the unions of public servants could not conduct their activities in full freedom and that they did not have full rights to bargain collectively, even more since there were many contract employees who needed the special protection provided under Convention No. 98.

The Workers' member of Greece stated that he could not accept the Government's statement that the situation was difficult and consequently that the Government could not guarantee the right to bargain collectively. He added that it was impossible to believe that this right could be restricted on account of economic or other difficulties. Regarding the criteria for representation of a union in negotiations, the speaker agreed that the unions involved should be those which were the most representative, but he disagreed with the setting of numerical criteria. Furthermore, he regretted that compulsory arbitration had become the rule rather than the exception. He added that compulsory arbitration had been set aside in the majority of countries which wished to respect the process of social dialogue and collective bargaining, and that the conciliation and arbitration procedures which remained in those countries were voluntary only. Additionally, the conciliators and arbitrators must be appointed by mutual consent of the interested parties, and not by a third party.

The Workers' member of the United States drew further attention to the issue of collective bargaining in the public sector and the imposition of compulsory arbitration in the free trade zones. Any collective agreement reached between a public servants' union and an employer must be approved by the Council of Ministers. This prevented the union from negotiating directly with those in Government who had final decision-making authority. This consequently discouraged bargaining in good faith since unions could not obtain commitments at the bargaining table and therefore encouraged work stoppages as the only means available to bring to the table those who could negotiate an agreement not subject to overrule. Furthermore, the legal definition of public servants was far too broad, in clear violation of Convention No. 98. Regarding the imposition of compulsory arbitration in the free trade zones for a period of ten years following the establishment of the zone, the speaker referred to the conclusions formulated by the Committee on Freedom of Association in paragraph 63 of its 303rd Report in which it urged the Government to remove in the near future the restrictions which were incompatible with the application of the Convention. He stressed that downward pressure on labour standards and workers' rights must be combated by insisting that the ILO Conventions are strictly and uniformly applied, without exception. The speaker concluded by supporting the suggestion of technical assistance made by the Committee of Experts.

The Government representative stated in reply that the criticism that collective bargaining was prohibited in free trade zones was not correct. Under the terms of Act No. 3218 of 15 June 1985, within the first ten years of the establishment of the free trade zone collective bargaining shall take place between the parties but any deadlock shall be referred to compulsory arbitration. In order to encourage free trade without any hindrance, free trade zones were kept separate and subject to the foreign trade regulations of Turkey; however, in accordance with Act No. 3218 of 1985, there were no longer any free trade zones in Turkey subject to this restriction.

The speaker stated that he had taken note of the other issues raised by the other speakers, which would be given due consideration.

The Workers' members stated that, as far as the numerical restriction was concerned, the Workers' members firmly believed that the Committee of Experts did not quarrel with the 50 per cent criterion, but with the combination of the 50 per cent with the 10 per cent at branch level, since there was no collective bargaining at the branch level. The fact that the large workers' and employers' organizations in Turkey thought that they could live with these numerical restrictions was completely irrelevant, as it had been irrelevant in the past cases with unions from Eastern European countries concerning forced labour. As to the constitutional changes furthering the rights of public servants, they did not consider that the Turkish legislation presently promoted collective bargaining. Likewise, arbitration only hindered collective bargaining, and therefore, even if the Government did not use it too often, the law should be changed. They reiterated the grave concern of the Workers' members and suggested technical assistance from the ILO.

The Employers' members re-emphasized the significance of the constitutional amendment in Turkey, which provided public servants freedom of association and, to some extent, the right to bargain collectively. They were optimistic that the implementing legislation would also come into force.

The Committee noted the statement made by the Government representative and the following discussion. The Committee regretted that the Committee of Experts had received the report from the Government on the application of the Convention too late and that there had been no response provided in time on the observations made by the Turkish Trade Union Confederation (TURK-IS) and DISK. The Committee welcomed the progress which had been noted since then by the Committee on Freedom of Association, particularly the constitutional amendment which grants public servants trade union rights and the right to collective bargaining. However, it noted that the Committee of Experts had expressed concern about the fact that numerous divergences persisted in law and in practice, with the requirements of the Convention. It also noted that a tripartite commission would examine the points raised by the Committee of Experts. The Committee once again urged the Government to adopt measures to lift restrictions on collective bargaining resulting from the dual criteria for representation required of the unions. It also expressed the firm hope that in addition to the constitutional provisions, legislative provisions of a specific nature would be adopted to give workers in the public sector covered by the Convention the unambiguous right to establish trade unions, so as to be able to negotiate collectively on their working conditions. The Committee urged the Government in its next detailed report on the application of the Convention to give details of specific measures taken, if necessary with assistance from the ILO, so as to follow up on the comments of the Committee of Experts and particularly to promote free collective bargaining as a way of setting working conditions. The Committee expressed the hope that it would be in a position to note decisive progress in law, and in practice, on these questions in the very near future.