Caso individual (CAS) - Discusión: 2009, Publicación: 98ª reunión CIT (2009)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Türkiye (Ratificación : 1993)

A Government representative recalled that, as proposed by the Conference Committee at its session in 2007, a high-level ILO mission had visited Turkey in April 2008. The members of the mission had met high-level representatives of the Ministry of Labour and Social Security, the confederations of private and public sector trade unions and the confederation of employers’ organizations. The visit had offered a very useful opportunity to observe the Government’s sincere and well-intentioned efforts to cooperate with the social partners and to obtain an accurate picture of the unique conditions of the Turkish industrial relations system in both law and practice.

He noted that the Government had undertaken the work of preparing the amendments to Acts Nos 2821 and 2822 in close cooperation with the social partners both before and after the ILO’s high-level mission. The Tripartite Consultation Board and its working group had worked intensively and the process of cooperation and consultation with the social partners had continued in the discussions on the envisaged amendments in the Parliamentary Committee and its subcommittee. A similar approach had been followed in relation to the envisaged amendments to Act No. 4668 respecting public servants’ unions. The Bill to amend Acts Nos 2821and 2822 was currently on the agenda of the plenary session of the Grand National Assembly. The text of the Bill had been communicated to the ILO, and further information would be provided when it had been enacted. However, the summer recess, local elections and a Cabinet reshuffle had delayed the enactment of the new legislation. He added that the Bill did not include amendments to the provisions relating to political, general and solidarity strikes, as this would require a constitutional amendment. Although amendments to the Constitution were not easy to achieve and required consensus in all parts of society, he emphasized that the Government was planning to introduce amendments to the Constitution.

He reported a positive development in line with the view expressed by the Committee of Experts that trade unions should be able to engage in action on social and economic issues affecting the interests of their members. In a ruling published in April 2009, the Constitutional Court had unanimously found that section 73, paragraph 3, of Act No. 2822 was in breach of the Constitution and had therefore repealed it. As a result of this ruling, which had been handed down in a case involving a work stoppage by employees protesting against a Bill respecting pensions, participation in a work stoppage aimed at influencing measures taken or contemplated by the authorities with regard to work and working conditions was no longer deemed illegal.

He provided further information about measures that had been taken or were envisaged to limit the intervention by the police during meetings and demonstrations and to prevent the excessive use of force in controlling demonstrations, rallies and marches by trade unions. He emphasized in this respect that, in the same way as all other natural and legal persons, trade unions had to comply with the relevant legislation, and particularly Act No. 2911 respecting marches and demonstrations. Activities by trade unions which did not comply with the law could not be immune from police interference, although judicial means of recourse were available to trade unions and their members to contest police action. He emphasized that the Government was determined to take all necessary disciplinary and judicial measures against members of the security forces who used disproportionate and excessive force to control demonstrations, rallies and marches. The following measures were planned for this purpose: the procurement of communication equipment placed inside the helmets of police officers; the inscription of easily identifiable numbers on their helmets; and new legislative provisions on the actions, methods and principles governing police officers assigned to control demonstrations and marches. He added that several circulars had been issued by the Office of the Prime Minister since 1997 instructing the public authorities to facilitate lawful activities by trade unions. These circulars clearly illustrated the positive attitude of the public authorities towards lawful trade union activities. This positive approach was also reflected by the approval of May Day as Labour and Solidarity Day in 2008 and as an official holiday in 2009.

However, in relation to the use of excessive force by the police, he emphasized that members of illegal organizations sometimes infiltrated trade union demonstrations and marches and attacked the security forces with stones and clubs, causing injury to members of the public and police officers, and damaging public and private properties. Nevertheless such infiltration should not be an excuse for the use of disproportionate force and police officers who resorted to using excessive force were certain to face disciplinary action and would be liable to prosecution if they transgressed their authority. He reaffirmed that the attendance of the police at trade union demonstrations and marches was entirely related to the maintenance of public order. Moreover, in accordance with Article 20 of the Associations Act, the security forces were not authorized to enter the premises of trade unions or any other organizations unless a court ruling was obtained on the grounds of maintaining public order and preventing the occurrence of criminal acts or a written instruction issued by the local Governor’s office in cases where undue delays might endanger public order.

With regard to Act No. 4688 on public employees’ trade unions, he recalled that the Ministry of Labour and Social Security had prepared a Bill in consultation with the social partners, which had been communicated to the ILO in February 2009. The Bill repealed the restrictions on the right to form and join unions by public employees during their probation period, private security guards employed in the public sector, prison guards and the highest ranking officials in public establishments employing over 100 employees. It would also remove the requirement of two years’ seniority as a public servant to be a founding member of a trade union. The Bill envisaged that the coverage of collective bargaining would no longer be confined to financial rights, but would also cover social rights, which would align it with the de facto situation. The Bill did not include the right to strike, as this would require amendments to the Constitution and an overhaul of the public personnel regime.

With reference to the right of the members of a union affected by the change of the branch of a service to be represented by a trade union of their own choosing, which mainly concerned the Yapi Yol-Sen case, he indicated that public servants had the right to form or join unions of their own choosing in the branch of activity of the institution in which they worked. The closure of an administrative unit due to restructuring and the transfer of its staff to a different unit without affecting their status as public servants could not be considered as interference in trade union matters, and indeed showed the importance attached by the Government to the job security of public servants. It was not consistent with the current system based on the principle of branch level unionization for a trade union to recruit employees working in another branch. The acceptance of such a practice would block the existing system for the determination of the authorized trade union. This was also valid for union officers whose branch of service changed. The underlying principle of the exercise of freedom of association by public servants was that they had the right to form and join trade unions of their choosing within the branch of activity of the public establishments for which they worked.

In relation to the question of suspending the term of a union officer who stood for local or general elections and the termination of the status of a union officer who was elected, he explained that, in accordance with article 82 of the Constitution, members of the Grand National Assembly could not sit on the executive boards or audit boards of unions or confederations, and that the holding of office in a public establishment was not compatible with membership of the Parliament. He added that the situation of trade union officers standing in local or general elections was governed by section 18 of Act No. 4688. Section 10 of the Act provided that union officials who failed to call a general congress in accordance with the union’s statutes or did not abide by the quorum could only be removed from office by a court decision.

When there were discrepancies between a trade union statute and the provisions of the Constitution or other Acts, the union would be required to amend its statute and, if it failed to do so, the case would be referred to the courts. However, the Ministry of Labour and Social Security did not have recourse to judicial action for the amendment of trade union statutes.

With reference to the comments of the Committee of Experts concerning section 35 of the Associations Act of 2004, he said that the provisions of the section included trade unions together with other associations within the scope of sections 19 and 26 of the Act, provided that their special law did not contain relevant provisions. Act No. 2821 concerning trade unions was a special law governing the status of trade unions, section 26 of which required associations to obtain permission from provincial and district authorities to establish and operate hostels and dormitories for the purposes of education and training. Section 95 of the Regulations respecting associations provided that the establishment and operation of hostels and dormitories for secondary and high school students was subject to the Regulation issued by the Council of Ministers in December 2004, the provisions of which applied unless they contravened the Associations Act. It was difficult to understand how the regulation of student hostels and dormitories for secondary and higher education students could be considered as interference in trade union activities. This was a purely technical matter entirely unrelated to trade union freedom and was intended to ensure the existence of the necessary conditions for the provision of these types of services.

In conclusion, he emphasized that major progress amounting to a reform had been achieved in the Bills to amend Acts Nos 2821, 2822 and 4688. He thanked the social partners for their enthusiastic participation in the process of formulating these amendments and indicated that the Government would endeavour to ensure that the Bills were enacted as soon as possible.

The Employer members thanked the Government representative for the information provided and indicated that the case raised a dilemma. Much new information had been provided regarding fundamental aspects of the case related to civil liberties and violence, as well as the measures taken to amend Acts Nos 2821 and 2822. However, the Committee was not in a position to assess this information. Although it would appear on the surface that steps had been taken in the right direction in relation to civil liberties and violence, it was not possible to make a firm determination in that respect at the present time. It might well have been expected that the proposed amendments would already have been enacted. Both the organizations of employers and workers had fulfilled their responsibilities with due diligence and the respective Bills had been submitted to the Grand National Assembly. The Government therefore needed to ensure that they were enacted as soon as possible.

They recalled that the case had been discussed by the Committee for many years. It had been examined in the 1980s and 1990s under Convention No. 98, and since the ratification of Convention No. 87 in 1993, the case had been discussed by the Committee under the latter Convention in 1997, 2005 and 2007. On several occasions in the past, the Committee of Experts had noted the action taken by the Government with interest, and even with satisfaction. At its last session, the Committee of Experts had also noted with interest and satisfaction action taken under other Conventions ratified by Turkey, but not under Convention No. 87. A high-level mission had visited the country in 2008, although progress appeared to have slowed since then. There had also been a change of government, which might give grounds for hope. Certain indications had been provided that some action was being taken, but it was difficult to assess precisely what. While the Government had undertaken to adopt the amendments referred to above as soon as possible, it was necessary to ascertain the level of commitment involved. The Government should be called upon to provide a detailed report in response to the matters raised by the Committee of Experts in order to allow a better assessment of the situation. They added that the number of issues raised in relation to the public sector showed the need for reforms in the public sector personnel system in the country. In conclusion, they noted that it was unclear whether the Government was indeed heading in the right direction, although the pace of reform had certainly slowed down.

The Worker members indicated that since 1993, the year which Conventions Nos 87, 135 and 151 had been ratified, all the elements had been in place for proper social dialogue, except the acceptance by the Government of the fact that social dialogue could effectively lead to organizations challenging government action, particularly in the areas of economic and social policy and civil rights. The Government’s dialogue on freedom of association with the Committee of Experts and the Conference Committee resembled a dialogue between deaf persons, thereby undermining the credibility of the ILO. The Committee of Experts had made a dozen individual observations, which had remained unanswered. In general, the Government paid little attention to the calls that were made, whether by the Committee of Experts, the ITUC or national unions. The application of the Convention had already been examined by the Committee in 2005–07, but not in 2008 as a high-level ILO mission had visited the country a few weeks before the Conference. The amendment of Acts Nos 2821 and 2822, in consultation with the social partners, was central to the requests of the Committee on Freedom of Association and the Committee of Experts, but the Government advanced the same arguments and promises on the occasion of each complaint. The recommendations of the supervisory bodies with a view to the implementation of Conventions were nevertheless clear. The report of the high-level mission referred to a number of statements by the Under Secretary of State for Labour and Social Security, according to which there was a consensus to amend Acts Nos 2821 and 2822, subject to the resolution of some minor issues. On the other hand, the amendment of the provisions of Act No. 2822 concerning general and solidarity strikes, occupations of the workforce and go-slows could not be made until the Constitution was amended, which was necessary for the country’s accession to the European Union. Finally, Act No. 4688 respecting the right of public employees to engage in collective bargaining was currently being reviewed in the context of the reform of the conditions of service of all public employees.

Another problem was that of anti-union practices, already raised by the Committee in 2005 and 2007. Despite the circulars issued by the Prime Minister requiring compliance by the administration with the relevant provisions of the law and non-interference in union activities, participation in a demonstration and the publication of certain information was still punishable by imprisonment. These freedoms were hampered by judicial investigations and prosecutions of trade unionists and leaders. The terrible incidents that had occurred year after year during the May Day celebrations in Istanbul were a case in point. The fact that the Government had finally recognized 1 May as a holiday did not mean that it respected the right to demonstrate. The Government argued that unions were not above the law, that they engaged in illegal activities and that they were free to take legal action in case of dispute. Admittedly, unions needed to comply with the law, but when that had the effect of depriving them of freedom of association, the problem became intractable. The arrests of trade unionists were escalating under the pretext of terrorist activities or propaganda for terrorist organizations. Education International had written to the Prime Minister protesting against the arrest of over 30 members of the trade union Egitim Sen on 28 May 2009, of whom 14 remained in prison. Just last week, the police and security forces had used extreme violence against teachers protesting to obtain guarantees of the right to bargain collectively. Egitim Sen had marched on Ankara to make this claim. On 3 June 2009, the city centre in Ankara had been surrounded by security forces and turned into a battlefield. Trade unionists had been injured. Members of trade unions in the public sector had been dismissed or transferred under totally false pretences. The unions did not have the right to include in their statutes the peaceful objectives that they deemed necessary to protect the rights and interests of their members. They did not have the right to express their views, particularly in the press, even though the full exercise of trade union rights required the free circulation of information and opinions in accordance with the principles of non-violence. With regard to the amendment of the legislation, the report of the Committee of Experts once again highlighted the pretexts put forward by the Government for failing to take action. The revision of the Constitution, which was required to resolve the issue of strikes, had not been undertaken. The revision of sections 5, 6, 10, 15 and 35 of Act No. 4688 on public employees’ trade unions, to bring them into compliance with the Convention by allowing all workers without distinction whatsoever to enjoy the right to establish and join organizations of their own choosing, still had not been carried out despite repeated requests of the Committee of Experts and the discussions that had taken place during the high-level mission. The Government would probably invoke the responsibility of trade unions for the failure of the reforms. But, while the unions had rejected the Bill amending Acts Nos 2821 and 2822, they had issued a statement on the reasons for the rejection: the refusal to allow a trade union to be dissolved for lack of information documents, the lack of guarantees of the effective right to collective bargaining and the maintenance of a series of prohibitions on the right to strike. In view of the overwhelming situation, the legal considerations raised by all the supervisory bodies and the subject under examination, it was clear that a revision of the legislation to bring it into compliance with the Convention and establish an industrial relations system worthy of Social Europe, needed to be undertaken with the social partners. Such dialogue presupposed that workers’ organizations were not simply presented with a non-negotiable text. The Worker members called for the adoption of firm conclusions against the Government.

A Worker member of Turkey said that the Bill to amend Acts Nos 2821 and 2822 which had been submitted to Parliament contained provisions abolishing some of the remaining trade union rights and freedoms. Although the Government representative had thanked the social partners for their support, the Bill had been submitted to Parliament without the support of the social partners. The Bill did not resolve the problems raised by the Committee of Experts, and indeed gave rise to new problems. Adoption of the Bill would maintain very high thresholds for the establishment of trade unions. The requirements for the establishment of trade unions, and particularly the need to organize 50 per cent plus one of the workforce in an establishment, meant that in most cases they could not exist. Moreover, there was a broad prohibition on collective bargaining in many cases. There were many ways in which the legislation was not in compliance with ILO Conventions, including the determination of branches for the purposes of collective bargaining in the public sector. Such determinations should be undertaken by a representative body. There was also a need for a statutory mediation process that could be initiated by the parties. Trade unionists should be protected against dismissal for trade union reasons through the establishment of a right to reinstatement. However, the Government had refused to discuss a proper new law to establish the rights required in compliance with Conventions Nos 87 and 98.

The Employer member of Turkey said that it was impossible to disagree with the report of the Committee of Experts on the criterion for the use of civil liberties. In this regard, while limited police intervention only in the cases where there was a genuine threat to public order was acceptable, he did not approve of the disproportionate use of force. He added that the adoption of a law in April allowing 1 May to be celebrated as the “Day of Labour and Solidarity” should be seen as a step forward. He recalled that prior to 1980, when the military regime had adopted a law prohibiting the celebration of May Day, it had been a national holiday, and that this was an important step in the democratization of Turkey. Due to this measure, the leaders of Turkish trade unions had been able to enter Taksim Square in Istanbul on 1 May 2009, and the police had not used force.

With regard to the amendments to Acts Nos 2821 and 2822, the Turkish Confederation of Employer Associations (TISK) had fulfilled its responsibilities with diligence in regard to the Bills that had been presented to the Grand National Assembly last year. The Government should be encouraged to enact these Bills, which had been prepared to align legislation with Convention No. 87. He noted that on various occasions, TISK had hosted and provided the secretariat for meetings between the Government and the social partners. The texts prepared for the Parliament were acceptable from the employers’ standpoint as they had been accepted in meetings where TISK had been present.

He added that the detailed observations in the report of the Committee of Experts concerning the union activities of public employees demonstrated the great need for a reform of the public sector personnel system. Such a reform would clarify who exercised authority for the State and who was employed in essential services. Turkish employers supported the Government’s initiatives in this respect and were prepared to collaborate with the Government in the improvement process, and expected the Government to keep its promises.

Another Worker member of Turkey recalled the significant contribution that trade unions had made in support of public sector employees. In 2001, Act No. 4688, on public employees’ trade unions, had been adopted following a long struggle by public sector employees. However, these employees continued to be subject to significant restrictions, which had been discussed in recent years at the Conference Committee. The Government had promised to remove these restrictions, but this had not been done, and currently there was no plan to amend Act No. 4688. Moreover, the draft amendments to Acts Nos 2821 and 2822 had been submitted without consensus by the social partners.

He asserted that public servants did not have the right to engage in collective bargaining, the consultations held were meaningless, restrictions were placed on union membership, the tripartite advisory system did not work and there was discrimination between trade unions and the workers were liable to be transferred if they engaged in union activities. Between 2003 and 2009, 70 union representatives had been transferred without valid reasons. Although some had been reinstated, the majority had not. Finally, he emphasized that Act No. 4688 was in violation of Convention No. 87 and needed to be amended, in consultation with the social partners and with ILO technical assistance.

Another Worker member of Turkey speaking on behalf of the International Trade Union Confederation (ITUC), recalled the military intervention in Turkey in 1980. A number of laws regulating trade union rights had been adopted by the military regime and the workers have been subjected to these laws ever since. He added that trade union laws in Turkey were not in conformity with Conventions Nos 87 and 98, and that trade unions were under strict monitoring by the Government, due to these laws. Moreover, the double threshold system prevented the exercise of the right to freely join unions and to collective bargaining: a trade union had to organize at least 10 per cent of the workers at the sectoral level, and over 50 per cent of workers at the enterprise level. Freedom of association was largely undermined by the obligation to consult a public notary for union membership and resignation. Workers therefore had to pay a public notary to certify their registration forms and make their payments. Moreover, the procedures to determine authority for collective bargaining were too complex and cumbersome, and this authority was determined by the Ministry of Labour following a lengthy trial period.

He recalled that the right to strike was very limited in Turkey, and that solidarity strikes, warning strikes and general strikes were all prohibited by law. The right to strike was prohibited by law in many sectors and the Government had the right to postpone a strike on the pretext of public health and national security.

The report prepared by the high-level mission in 2007 emphasized that the Bills still contradicted ILO Conventions. The only steps taken following this report had been unfruitful discussions and the Government refused to make the necessary amendments to the laws. Moreover, the right of assembly was heavily repressed. The May Day demonstrations in 2007 and 2008 had been attacked by the police and hundreds of trade union activists had been taken into custody. In 2008, the headquarters of the Confederation of Progressive Trade Unions of Turkey (DISK) had been attacked using tear gas and water cannons. In 2009, May Day had been announced as a public holiday, but the demonstration, in the same way as in previous years, had been marked by extreme violence, the use of tear gas and hundreds of injuries to workers. In addition, the union representing retired workers had been closed down. A week ago, the security forces had invaded and searched the headquarters of the Confederation of Public Employees Trade Unions (KESK) and over 30 members, including an executive committee member, had been taken into custody. It therefore had to be concluded that the trade union regulations were not in conformity with ILO Conventions and the Government never kept its promises on trade union laws and the dismissal of trade union members.

The Worker member of the Netherlands recalled that in 2007, when the Committee had discussed Turkey’s failure to implement Convention No. 87, it had recommended that the Turkish Government accept a high-level mission to assess the problems and recommend solutions. It had been hoped that the mission would speed up the process of adapting Turkish laws to bring them into conformity with ILO Conventions Nos 87 and 98. At first, the high-level mission had seemed to work well. The Government had consulted the social partners and submitted a new Bill to Parliament in May 2008, although the draft differed from what had been agreed by the social partners and was not in compliance with the Convention. The old legislation was still in place. The technical resources of the ILO, the Committee of Experts, the Conference Committee and the high-level mission had all been involved in discussing and analysing Turkish legislation. In addition, European institutions, such as the European Economic and Social Council, had advised the Government to enact the necessary reforms, and the European Court of Human Rights, in its judgement in the case Demir and Bakara v. Turkey had explicitly referred to Turkey’s ratification of Convention No. 87 and the need for the Government to reform its legislation to bring it into conformity with the Convention. Together, these institutions had made available significant information that made it clear which amendments were needed to bring national laws into conformity with ILO standards. Lack of understanding of what changes were necessary could not therefore be the reason for the delay.

The Government had publicly indicated that the lack of progress was due to a lack of consensus with the social partners on the proposed draft amendments. However, the Government could not use this lack of consensus as a reason for not bringing its legislation into conformity with Conventions Nos 87 and 98, as from the report of the high-level mission we could read that the trade unions had explicitly urged it to do so. The Government had attempted to justify the very slow pace of reform by arguing that some of the legislation that was in violation of the Convention was not being used in practice. Yet this argument was not convincing, as any restriction of trade union freedom set out in the law could be used. Moreover, if it was not the Government’s intention to use such restrictions, there was no valid reason for them to remain in the legislation. Indeed, the accounts by Turkish worker representatives of the recent cases of violence against trade union demonstrations and officials indicated that many of the restrictions were being used. Although the Committee of Experts had called on the Government to take measures to ensure that the police did not intervene in demonstrations that did not pose a threat to public order and to avoid excessive violence, the Government had used tear gas against a May Day meeting and had raided the offices of the KESK. Several cases of dismissal for joining a trade union had been mentioned, as well as examples of interference in the internal affairs of trade unions.

She recalled that during the first week of the Conference, the Committee had heard several statements on the importance of ILO standards in times of economic crisis. In addition, there was agreement within the Committee that ILO standards were needed to protect the most vulnerable workers from being the worst affected and to emerge from the crisis in a sustainable way. There was agreement that Convention No. 87 was the enabling standard, without which the chances of preserving and developing other standards were weakened. She noted that, prior to the crisis, Turkey had experienced relatively rapid economic growth, which was now slowing due to the crisis. The workers that had been integrated recently into this economic development risked losing their hard-won gains. Just over five per cent of workers in Turkey were covered by collective agreements, which was a very low percentage and in practice meant that less than half of the workers who were organized benefited from a collective agreement. Turkey needed to fully implement Convention No. 87 to extend the freedom to organize to its workers, so that they could defend their rights and working conditions during the ongoing economic crisis. It also needed trade unions to be full partners in social dialogue for economic recovery and future development. The limitation of the trade union rights of Turkish workers was very serious. There was no valid reason for the delay in bringing legislation into conformity with Convention No. 87. She therefore urged the Government to do so immediately.

The Worker member of the Republic of Korea expressed serious concerns with regard to the repression of basic labour rights by the Government of Turkey. Turkish labour laws were not in conformity with ILO Conventions and the Government was dragging out the process of implementing its commitment to bring them into line with ILO principles. Furthermore, the Government had repeatedly attacked workers and trade union officials through the riot police. Every May Day rally since 2007 had ended with large numbers of arrests and many injuries, and the headquarters of DISK, an ITUC affiliate, had been besieged. In this totally unacceptable situation he urged the Government to bring an end to violent actions against workers. He added that 14 members of KESK were still held in custody for exercising their trade union rights. They included 12 teachers who had been arrested at school during a class. The Government was trying to accuse them of terrorist activities, but most of them had been employed by the public service for over 20 years and there was no evidence to prove that they were linked to violent activity. He urged the Government to release them immediately and to stop criminalizing trade unions of public employees.

With regard to the limited protection against anti-union discrimination and dismissals, he indicated that, according to ITUC sources, the minimum number of employees in a workplace needed for the application of job security legislation was 30. However, as a result of subcontracting and fixed-term contracts, about 95 per cent of workplaces had fewer than 30 employees. In view of this situation, he called upon the Government to enact without delay appropriate laws to eradicate all types of anti-union discrimination and to protect workers from dismissal.

In conclusion, he drew parallels with the situation in his own country, where the police were used very frequently to prevent the exercise of the right to demonstrate and to strike, and where the Government had repeatedly ignored the recommendations of the international community, including those of the ILO and the OECD. He therefore urged the Government to give effect to ILO Conventions on freedom of association so that workers could enjoy full trade union and human rights. He also warned that social consensus would never be achieved through the use of brutal violence against trade unions.

A Government representative of Turkey thanked the members of the Committee for their constructive comments. He reaffirmed the will of the Government to proceed with the reform process. Although it had been delayed by local elections and the recent Cabinet reshuffle, the reform of labour laws was proceeding. He reaffirmed that the arrest of the unionists of KESK had been carried out in accordance with an order of the Office of the Public Prosecutor on the grounds of suspicion of terrorist activities in the context of the Kurdistan Workers’ Party (PKK), which was on the list of international terrorist organizations. He therefore emphasized that they had been arrested for illegal activities which had nothing to do with their trade union activities. He recalled in this respect that, despite the calls that had been made, governments did not have the authority to release persons who had been arrested by court order. In conclusion, he said that, although it was not possible to claim that the entire labour legislation in Turkey was in full compliance with ILO Conventions, this was due to some of the provisions contained in the Constitution. The Bills submitted to Parliament constituted very important and even radical reforms. He called on the Committee to reflect in its conclusions the fact that the draft legislation had been prepared in cooperation with employers and workers.

Another Government representative of Turkey indicated that the claims that consensus had not been reached on the Bills did not reflect reality. The social partners had participated intensely in the process of formulating the amendments, both in the Tripartite Consultation Board, which had met every month, and in the Parliamentary Committee and its subcommittees. With regard to the claims concerning anti-union discrimination, he recalled that, with its population of 70 million, Turkey had a large economy and there might be certain employers who would not let trade unions organize at the workplace. However, there were already three pieces of legislation dealing with anti-union discrimination and those responsible were liable to severe penalties. Workers who were victims of such discrimination could obtain compensation. With regard to the allegations concerning public servants, he observed that they could always appeal to their superiors and that judicial review was always available to them. With reference to trade union rallies and demonstrations, he indicated that trade unions did not have to seek prior permission for such events, and only needed to notify the Office of the Governor 48 hours beforehand. The Governor could indicate the location at which such events were to be held. For example, in Istanbul, four main squares were available for these events. However, Taksim Square had been closed for such demonstrations since 1979 for security reasons. The 2008 incidents had occurred because of the insistence of some trade unions and confederations to hold the May Day celebrations in Taksim Square. This year, a number of workers had been permitted to hold a celebration in the Square. The Government had taken the necessary measures and the event had been peaceful. He expressed the belief that the violent incidents had mostly occurred in the past as a result of infiltration by illegal organizations which had attacked the security forces. It therefore followed that the measures governing May Day celebrations were not an infringement of trade union freedoms, but that the unnecessary insistence of the trade unions to hold their celebrations in violation of the law had been the main cause of the incidents.

The Worker members expressed their concern regarding the situation that persisted in the country, as well as the sad events that had been described. Given the severity of the failings and the persistent refusal of the Government to make efforts to bring legislation into conformity with the Convention, a special paragraph was envisaged. They noted, however, that it was important to continue believing that efforts could lead to real social dialogue, based on the European model, in an atmosphere free of violence. The Government should therefore accept ILO technical assistance, as well as a bi- or tripartite high-level mission to resolve the problems that persisted despite the many discussions that had taken place on this case, particularly in the context of the high-level mission of April 2008. Vague promises were insufficient and a timetable on the planning of the measures to be taken would need to be established, in agreement with the social partners and under the aegis of the ILO. The Government would then have to provide a detailed report of the activities carried out to the Committee of Experts for its session in 2009. In this way, the case of the application of the Convention could be followed year after year and, if necessary, be included on the list of individual cases if no progress was noted. This should not give rise to problems, if, as the Government indicated, the social partners were already associated with the reform process. However, it should be noted that there had been no tripartite consultations in the public sector for over three years.

The Employer members observed that there was a lack of clarity in the present case concerning the underlying facts and the legal situation. Although it had appeared that consensus had been reached with the social partners on the Bills to amend Acts Nos 2821 and 2822, the message from the Worker members appeared to be that there was in fact no consensus. The question therefore arose as to what the actual situation was. They also recalled their previous comments concerning the difficulties in assessing the value of the initiatives that had been taken recently in relation to civil liberties and violence. The Government would need to provide a report in time to be examined at the next session of the Committee of Experts. Something was needed to stimulate action to bring the situation into compliance with the Convention. Finally, they agreed with the proposal made by the Worker members that a high-level tripartite mission should be carried out.

Conclusions

The Committee took note of the statement made by the Government representative and the debate that followed. The Committee also noted that a high level ILO mission visited the country on 28–30 April 2008, pursuant to a request of this Committee in June 2007.

The Committee observed that the Committee of Experts’ comments had been referring for a number of years to discrepanc ies 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 noted the comments presented by both national and international workers’ organizations on the application of the Convention, particularly with respect to the violent repression of demonstrations, use of disproportionate force by the police and arrests of trade unionists, as well as government interference in trade union activities.

The Committee took note of the Government's statements according to which: work had been carried out on the amendments to Acts Nos 2821 and 2822 in close cooperation with the social partners, and that the Tripartite Consultation Board had conducted intensive work in this regard. The draft bills were on the agenda of the National Assembly. The Government also referred to consultations with the social partners on amendments to be made to the Public Employees’ Trade Unions Act. While the draft bills did not yet envisage certain requested amendments, this was because it was necessary to first amend the Constitution. The Government was also planning the necessary amendments in this regard. The Government also referred to a recent Constitutional Court judgement which found unconstitutional the provision restricting certain types of work stoppages. As regards the allegations of excessive police intervention in relation to trade union demonstrations, the Government representative stated that, while the Government was determined to take all necessary disciplinary and judicial measures against the members of the security forces who used disproportionate and excessive force, it was important that those demonstrating respected the relevant provisions of national legislation. He highlighted the important step taken by the Government in 2008 to declare May Day as a public holiday.

While noting the information provided by the Government in reply to the serious allegations made to the Committee of Experts relating to police violence and arrests of trade unionists and government interference in trade union activities, the Committee noted with concern the information provided with respect to recent mass arrests of trade unionists, as well as the allegations of a generalized anti-union climate. The Committee observed with deep regret the statements made of important restrictions placed upon the freedom of assembly and of expression of trade unionists. It once again emphasized that respect for basic civil liberties was an essential prerequisite to the exercise of freedom of association and urged the Government 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. It urged the Government to review all cases of detained trade unionists with a view to their release and to reply in detail to all the pending allegations and to report back to the Committee of Experts this year on all the steps taken to ensure respect for the abovementioned fundamental principles.

With respect to the recent draft legislation amending Acts Nos 2821, 2822 and 4688, referred to by the Government, the Committee, noting the lack of clarity as to the current situation and the extent to which consensus had been reached with the social partners in this regard, expressed the firm hope that these drafts would address appropriately all the issues raised by the Committee of Experts over the years and that the necessary measures would be adopted without further delay so that the Committee of Experts would be in a position this year to note significant progress made in bringing the law and practice into conformity with the provisions of the Convention. The Committee further called upon the Government to rapidly put forward and ensure any constitutional reforms necessary for the application of the Convention. The Committee urged the Government to elaborate a plan of action with clear time lines for finalizing the abovementioned steps. The Committee requested the Government to accept a high-level bipartite mission with the aim of assisting the Government in making meaningful progress on these long outstanding issues. The Committee requested the Government to provide detailed and complete information on all progress made on these issues as well as all relevant legislative texts, in a report to the Committee of Experts for its upcoming session in 2009.