Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

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

A Government representative stated that the constitutional amendment that had entered into force on 12 September 2010 had to be considered as major progress. This amendment was extremely important and demonstrated the Government’s sincerity and commitment to the democratic process and the promotion of trade union rights. The constitutional changes included the repeal of the prohibition of certain forms of industrial action, of membership in more than one trade union at the same time and in the same industrial branch and of the conclusion of more than one collective labour agreement at the same workplace for the same period. Moreover, the provisions concerning the liability of trade unions for any material damage caused during a strike were also repealed. In addition, a Public Employees Arbitration Board had been established to make final decisions regarding the conclusion of collective agreements covering public servants, and the discretionary power of the Council of Ministers had been eliminated in this respect. The scope of collective agreements for civil servants had been extended to include social and financial rights, the right to apply to the Ombudsperson had been ensured, and all disciplinary decisions of senior officials concerning civil servants were open to judicial review. The right to apply to the Constitutional Court has been recognized for all individuals in cases of breaches of the fundamental human rights, including trade union rights. Finally the Economic and Social Council had been given constitutional status. The constitutional changes necessitated the substantial adaption of existing trade union legislation and draft bills, including the legislation concerning public servants’ trade unions. An intensive process of consultation between the social partners and relevant public organizations had been continuing in the light of these changes. The speaker remained confident that the revised draft bills resulting from this process would meet the expectations of the Committee of Experts regarding trade union legislation. However, it was important that the social partners be more supportive and encouraging of this process. Such support was required particularly with respect to some remaining controversial issues including the formation of unions on the basis of workplace and occupations, the establishment of federations, and the elimination of thresholds for union competency for collective bargaining. In this context, he stated that due to the upcoming general elections for Parliament on 12 June 2011, and the time needed for revising the legislation regarding the industrial relations system, the harmonization process of the legislation had not been fully completed. It was thus impossible to provide a timetable for future legislative changes.

Turning to some positive steps demonstrating the Government’s good intentions regarding unionization of civil servants, he informed the Committee that a new Act had been adopted by Parliament in February 2011 containing provisions concerning the promotion of unionization in the public sector. The new Act provided for the payment of a premium to every member of public service trade unions, repealed the remaining restrictive provisions of Decree No. 399 concerning contract personnel in the public sector, and clarified their rights to establish trade unions. A Decree having the force of law was also recently issued for that purpose. With regard to measures to prevent the excessive use of force by the security forces, the measures taken had produced the expected results. This year’s May Day celebrations had been peaceful and no incidents had taken place. However, the allegations concerning the detention of some trade union officers and members during public marches were exceptional cases, rather than the rule. During the many marches and demonstrations organized by the trade unions last year, only a few individuals had been taken into custody, mostly for throwing stones and Molotov cocktails at the police, damaging public and private property or insisting on holding rallies or marches in unauthorized places. In any case, legal action could be taken against alleged mistreatment by the public authorities. Concerning the provisions on the auditing of trade unions under the Associations Act, according to the Ministry of Interior’s records, these provisions had not been applied in practice. In conclusion, his Government was deeply disappointed that Turkey had been included on the list of individual cases despite all the progress made. This progress had not been taken into consideration when the list had been determined. After having achieved such reforms, the Committee could have demonstrated greater appreciation and encouragement. The inclusion of Turkey on the list could only undermine the credibility of the Committee’s working methods and might even imply that the political considerations outweighed the technical aspects of the issue.

The Worker members recalled that this was the fifth time in seven years that this case had been discussed. The ILO high-level mission to Turkey, requested by the Committee in 2007, had resulted in a detailed assessment of the required legislative changes. With the suggestions made subsequent to this assessment, and the political will expressed by the Government, it had appeared that a solution was within reach. However, in 2009, the Committee concluded that no actual legislative changes had been enacted. Nonetheless, the adoption of Act No. 5982 in 2010 resulted in the repeal of some provisions of the Constitution that had been criticized for restricting trade union freedom. However, for such constitutional amendments to have an impact on the rights of trade unions, implementing legislation was necessary. Such legislation had not even been proposed. Moreover, Act No. 4688 on public servants’ trade unions had not changed since the discussion of this case began in 2005, and workers in the public sector had not participated in any social dialogue since 2007. Additionally, Acts Nos 2821 and 2822 included several restrictions on trade union rights and specific changes had been requested by both this Committee and the Committee of Experts. Despite the Government’s indication that a draft trade union law had been prepared which addressed the provisions allowing governmental interference in the internal affairs of trade unions, there had not been any progress in the submission of the draft to the legislator, nor did this draft address all of the issues raised by the Committee of Experts. Particularly, the Committee of Experts had indicated that self-employed workers, home-based workers, apprentices, senior public workers and retired workers should be guaranteed the right to organize, that restrictions on the right to strike should be limited to public servants exercising authority in the name of the State and to essential services in the strict sense of the term, and that the waiting period before the calling of a strike should be reduced.

The Worker members underlined that no progress had been made since the constitutional amendments, and these had already been noted at the Committee’s previous session. This was particularly worrying in light of the increasing violations of trade union rights in practice. The Government’s measures addressing civil liberties and the use of violence had not been effective, and the Government should be urged to ensure a climate free from violence, pressure, or threats of any kind. This included judicial harassment, including cases where trade unionists had been arrested for unclear motives and had their cases prolonged for significant periods of time. Regarding the issue of the threshold of 50 per cent plus one required in a company to get the right to collective bargaining, the Worker members emphasized that this had resulted in very few unions enjoying this right. Only a small percentage of organized Turkish workers were covered by a collective agreement and this was a major obstacle in establishing trade unions. Additionally, the law did not provide protection against the dismissal of workers in companies with fewer than 30 employees, meaning a lack of protection for these workers against unfair dismissal for organizing trade unions. This resulted in a low rate of organization in small companies, where trade union protection would be the most needed. The growth of the Turkish economy, without guaranteed rights for workers would result in unbalanced growth and the unfair distribution of benefits. The Worker members concluded by expressing their disappointment that the Government had not delivered on the promises made. No plan of action with a clear timeline had been provided, as requested by the Committee in 2009 and 2010, and use had not been made of ILO assistance for revising the legislation. However, full compliance with the Convention was within reach, and the Government was strongly urged to make all necessary efforts to bring its legislation and practice into conformity with the Convention, without delay.

The Employer members recalled that the previous year’s discussion of this case had been positive, and they expressed the hope that this year’s would be as well. Particularly, the inconsistent approach to social dialogue could be discussed and addressed constructively. The Government’s response to the high-level mission in March 2010 had been to amend the Constitution in only 16 days, and this amendment had been approved by the electorate in September 2010. The Government had previously indicated that some legislative amendments would be required. In this regard, a draft law on trade unions had been prepared to amend Acts Nos 2821 and 2822, in consultation with the social partners, which indicated that social dialogue was under way. The Committee of Experts had noted that the draft law appeared to address a number of the concerns that had been raised, including eight specific improvements, and this was to be commended. However, the Committee of Experts had highlighted that the draft law did not address all issues, and that there were no amendments to Act No. 4688. The Employer members recognized the challenges and difficulties in drafting legislation to address the remaining issues. They emphasized that the Committee’s conclusions could not address the Committee of Experts’ observations on the right to strike. Regarding the new approach of the Government to the use of force by the police, which had been noted at the Committee’s last session, the Employer members reiterated that civil liberties constituted an essential prerequisite to freedom of association. Training had to be provided to the police and the cultural change that was needed would take time to occur, and some problems still existed with regard to trade unions and the police. The Committee’s conclusions should urge the Government to continue to take all the necessary measures, in an expeditious manner, 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 Government should be urged to review, in consultation with the social partners, any legislation that might have been applied in practice in a manner contrary to the Convention. The Government should also provide a report, containing sufficient information, before the Committee of Experts’ next session. While time was required for issues to be dealt with through the legislative process, the examination of this case could hopefully speed up such developments. The Employer members highlighted that progress had been made, and that additional steps were required to finish the process.

A Worker member of Turkey indicated that the amendment of the Constitution in 2010 should be noted as progress, but underlined that the demands regarding the restrictions on the right to strike and a description of the terms “civil servants” and “workers employed in the public sector” had not been addressed in this process. Despite the amendments made to Acts Nos 2821 and 2822, these Acts were still far from maintaining a peaceful climate in the workplace during trade union activities. Two cases were cited to illustrate the frequent violations of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Organizing had become almost impossible due to the dismissal of workers who joined unions, in addition to the implementation of flexible work and subcontracting. The Government had prepared a draft law on trade unions in order to bring the legislation into conformity with the Convention, but this draft was not acceptable to the social partners as it inadequately addressed the needs of workers and included several restrictions. Finally, the speaker emphasized that, after the holding of two tripartite meetings in 2010 and 2011, certain points of conflict remained. The Government would therefore need to make a very strong commitment to the Committee, including adopting a plan of action with clear time lines.

Another Worker member of Turkey recalled that a law on civil servants’ trade unionism had been ratified by the Grand National Assembly in 2001. However, civil servants remained deprived of the right to strike and to bargain collectively. The Constitution also prohibited civil servants in specific public sectors from establishing or joining trade unions. In the past seven years, Turkey had been included in the final list on five occasions and, every year, the Government had promised to undertake positive reforms in order to comply with the Convention. In 2010, a referendum was held to amend some articles of the Constitution, but public workers’ trade unions had not been consulted due to the lack of social dialogue and the amendments were prepared without consensus. Social dialogue was not functioning. As regards Act No. 4688, no steps had been taken to amend its provisions to bring it into conformity with the Convention. To solve the problems facing public workers’ trade unions and their members, the Committee should urge the Government to initiate negotiations immediately with the representatives of the civil servants to bring Act No. 4688 into conformity with the Convention. Clear time lines should be requested to ensure its realization before the 2012 International Labour Conference.

The Employer member of Turkey highlighted that some recent developments had created concerns within the Turkish Confederation of Employers’ Associations (TISK). Recalling the importance of tripartism, the speaker underlined that the text provided to the high-level mission in May 2010 had not been discussed or agreed upon by the Turkish social partners. He disagreed with the Committee of Experts’ assessment that these developments were an improvement as they had lacked concurrence from the social partners. The speaker indicated that discussions concerning Acts Nos 2821 and 2822 remained on the agenda for the social partners, and that TISK had hosted tripartite meetings in this regard. The texts finalized through negotiations were acceptable, except for provisions permitting the establishment of workplace and occupational trade unions and federations, as it did not fit well with the Turkish tradition of industrial relations and could contribute to a breakdown of peaceful relations at workplaces. Three trade union confederations had also raised reservations in this regard during discussions. Consultations among the social partners on these amendments would continue until consensus was reached. Following the upcoming general election, the Turkish employers would continue to support the Government’s efforts to improve the relevant legislation.

An observer representing the International Trade Union Confederation (ITUC) spoke in memory of a retired teacher and former trade unionist who had passed away during a demonstration held on 31 May 2011. Mentioning the arrest and imprisonment of two specific trade unionists, and the trial of 111 trade unionists on 3 June 2011 facing sentences of five years of imprisonment, he highlighted that according to the ITUC annual survey, 66 per cent of the dismissals following trade union activities had been recorded in Turkey. The events that had occurred during this International Labour Conference showed that trade unions activities were being prevented by using methods such as killings, judicial harassment, arrest and dismissal. The labour legislation was not in conformity with ILO Conventions and only 5 per cent of the workers could enjoy the right to collective bargaining. Almost half of the workforce was in the informal economy and 25 per cent of the society was living below the poverty line. The main reason for this was the limitation of trade union rights. The national legislation regarding trade unions continued to provide for a 10 per cent threshold applying to a whole sector, and a 50 per cent threshold in the workplace, a notary obligation for joining or resigning from a union, a prohibition of the right to strike and long legal proceedings regarding reinstatement, not in conformity with international standards. Trials regarding the closing of four trade unions were ongoing. The Government had not made the necessary legal amendments. Despite the short period in which the constitutional amendments had been adopted, the number of dismissals and arrests had increased. The Government should be strongly called upon to apply the Convention.

Another observer representing the ITUC added to the statement made by the previous speaker, that half a million public servants did not have the right to join trade unions. High-level elected trade union executive committee members as well as ordinary members, most of them women, were facing judicial harassment, dismissals and exile from their workplaces because they organized and attended trade union activities. Listing specific examples of women trade unionists facing such measures, she indicated that these cases were still extraordinary cases. However, the risk was high that they would become ordinary. The Committee should therefore include the conclusions on this case in a special paragraph of its report.

The Worker member of France, speaking also on behalf of Education International and of the Public Services International, referred to a number of violations of the Convention over recent years affecting trade unionists in the public service and in education. She referred to the cases of several trade unionists (Metin Findik, Seher Tumer, 31 members of the Confederation of Public Employees’ Trade Unions and of its teachers’ union, Egitim-Sen, including trade union leaders) had been arrested without being informed of the charges made against them. Some of them had been the victims of repressive measures, such as wage reductions, dismissals, the prohibition of employment in public services, and a ban on travelling abroad and therefore on attending international trade union meetings. There was still no verdict two years after the beginning of the trial, which was contrary to the case law of the ILO that rapid procedures needed to be guaranteed in cases of trials of trade unionists. The courts needed to deliver their rulings as rapidly as possible in order to bring an end to the pressure that was being exerted on those charged. Moreover, the multiplication of the number of precarious contracts was leading teachers to give up union membership so that they could find employment. In addition, the right to strike of public employees was limited, and even non-existent, while participation in a strike still constituted grounds for dismissal from the public service. The legislative amendments requested on that point by the Committee of Experts had still not been adopted. In that respect, she referred to the April 2009 ruling by the European Court of Human Rights in the case of Enerji Yapi-Yol Sen v. Turkey, in which the Court had emphasized that, while the right to strike was not absolute and could be made subject to certain conditions and limitations, a prohibition applied to all public employees was too broad and contrary to the European Convention on Human Rights. The Government needed to implement the Convention strictly, stop interfering in trade union affairs and guarantee human, civil and trade union rights.

The Worker member of Finland pointed out that the problem was not only that national legislation was not in full conformity with international standards, but also that it was not effectively enforced. Widespread anti-union discrimination and failures in the justice system remained serious problems. Over the last few months, hundreds of workers had been dismissed because of their trade union activities. She referred to a specific incident which took place in 2008. Although the ensuing investigation made by the Ministry of Labour concluded that the dismissals were unlawful, the company refused to pay the fine. The judicial proceedings had been extremely slow. Unfortunately, the employer launched an appeal against the ruling that was in favour of the workers concerned, and the case was pending before the Supreme Court. This example was not isolated: since the beginning of 2011, 163 workers had been dismissed for union activity in the metal sector alone. Anti-union discrimination, especially unfair dismissal, in the absence of speedy remedy was one of the most serious violations of freedom of association as it jeopardized the very existence of unions. As a party to Conventions Nos 87 and 98 and the European Convention on Human Rights, Turkey had a responsibility to protect workers’ rights to form and join trade unions as well as to bargain collectively.

The Worker member of Germany, speaking also on behalf of the Worker member of Austria, expressed concern at the persistent violations of trade union rights. Attacks on freedom of association, freedom of assembly and the right to bargain collectively were of particular importance for German and Austrian trade unions in view of the large number of enterprises of both countries operating in Turkey. There were still insufficient guarantees for trade union rights, and reforms must be accelerated. Social and trade union rights should enjoy higher priority in negotiations for Turkey’s admission to the European Union. It was not only a matter of amending legislation, but also of improving both the situation in practice and legal protection. He expressed full support for the statement made by the Worker members, and those made by the Worker members of Turkey.

The Government representative underlined that the social partners were involved in the ongoing review of legislation. As the previous draft bills had not been found to address the issues raised by the Committee of Experts, revisions were under way and several meetings had been held with the social partners in this regard. Only a few issues remained controversial. Turning to the issue of anti-union discrimination, the speaker highlighted that there were legislative provisions prohibiting such practices, and that both workers and employers could have judicial recourse on these matters. Anti-union activity by employers was punishable by three years’ imprisonment and compensation for the worker involved included not less than one year’s wages and the possibility of reinstatement. This covered all workers and all workplaces. Turning to the allegations of the detention of trade unionists, the speaker emphasized that any such charges were unrelated to trade union activity. Some trade unionists were also members of illegal organizations. The judiciary was independent, and persons would not be prosecuted on charges without concrete evidence of illegal activity. He then addressed the death of a trade unionist, indicating that the demonstration at which this had occurred had been of a political nature and not related to trade union activities. However, the incident was under investigation and appropriate measures would be taken. He indicated that the imprisonment of a former trade union official had been unrelated to trade union activity, or being an officer of a trade union. Addressing the arrests of 111 trade union members, the speaker indicated that these charges were related to the organization of demonstrations in areas that were not authorized for these purposes. Addressing newly established trade unions, he emphasized that the new legislation would authorize trade unions to be established and bargain collectively. Public servants were able to set up associations to represent their interests, except for the purpose of collective bargaining.

The Employer members indicated that nothing had arisen during the discussion to alter their opening statement. Consequently, their introductory remarks also stood as their final remarks on the case.

The Worker members stated that the discussion and the information provided by the Government had strengthened their view that it was both urgent and feasible to bring the legislation into conformity with the Convention. A few amendments to the Constitution had been made, but the relevant legislation was still the same as in 2005 and the Government had not provided a plan of action with a clear time line as requested by this Committee. The Government had not made use of the recommended ongoing assistance of the ILO in revising the legislation nor had it provided any substantive new information. Furthermore, several examples presented during the discussion had shown that the rights of workers to establish and join trade unions freely were even more under pressure. It was feasible to make the necessary changes in a relatively short period of time because, with the help of the Committee of Experts and the ILO, the required changes had become perfectly clear. The two missions that had taken place had helped the move forward, and the Worker members requested that a new high-level mission be sent to facilitate the efforts to bring the legislation into conformity with Conventions Nos 87 and 98, in consultation with the social partners, and to facilitate social dialogue. The Government was also requested to provide a time-bound plan to take the necessary steps; to accept the technical assistance of the ILO to complete this process as soon as possible; and to report on the legislative amendments adopted before the next session of the Committee of Experts. In order to convey the urgency of the matter to the Government, the Worker members asked that the conclusions of the Committee on this case be included in a special paragraph of its report.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed.

The Committee noted the Government representative’s explanation of the constitutional amendments that had come into force and which addressed requests made by the Committee of Experts for many years. He referred to the need for more support from the social partners in the process of legislative revision to bring about the pending requests from the Committee of Experts, particularly as regards the controversial matters. While the Government was committed to improving the trade union legislation, he recalled that the process of revision takes time in any democracy and delays had occurred as the National Assembly had not met over the last three months due to the election campaign. For this reason, he was unable to provide a timetable for the possible legislative changes. He referred to the adoption in February 2011 of an Act providing for a collective agreement premium for members of public servant trade unions and to the abrogation of a criticized provision concerning contract personnel in the public sector. He stated that positive results had been seen in the prevention of excessive use of force by the security forces and observed that this year’s May Day celebrations had taken place without incident. The detention of some trade union officers and members during public marches and demonstrations were mainly individual cases involving violence, damaging of property or holding marches in places not allocated for that purpose. He also referred to other persons mentioned before the Committee and affirmed that they had been convicted for having committed criminal acts. As regards trade union auditing under the Associations Act, he stated that this provision had not been used in practice.

The Committee recalled that it had discussed this case on several occasions. The Committee welcomed the entering into force of the constitutional amendment under Law No. 5892 repealing several provisions of the Constitution which previously restricted the right to organize, following the September 2010 referendum. The Committee noted with concern, however, the new allegations of restrictions placed on freedom of association and assembly of trade unionists. In this respect, it once again recalled that respect for civil liberties was an essential prerequisite to freedom of association 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 be applied in a manner contrary to this fundamental principle and to consider any necessary amendments or abrogation.

The Committee regretted that no specific progress had been made on the long-awaited draft law on trade unions, amending Acts Nos 2821 and 2822, nor had any timetable been provided in this respect. It further regretted that several provisions in contravention with the Convention remained: the exclusion from the right to organize of certain categories of public employees, self-employed, home workers, apprentices, unemployed; and restrictions to the right to elect representatives in full freedom and to organize activities in full freedom. The Committee further noted with regret that there had been no further proposals to amend Act No. 4688 on public employees’ trade unions.

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 continue to avail itself of the ongoing technical assistance of the ILO. The Committee requested the Government to discuss with the ILO within the remaining days of the Conference how this technical assistance could be made most effective, aimed at 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 to transmit all relevant legislative texts to the Committee of Experts before its next meeting.