Caso individual (CAS) - Discusión: 2005, Publicación: 93ª reunión CIT (2005)

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

A Government representative recalled, in the first place, that this year the Committee of Experts had expressed satisfaction and interest at a number of the measures taken by his country for the implementation of Convention No. 87. In this respect, several legislative amendments had been formulated with the active participation of the social partners. The Committee of Experts had also raised a number of points on which it had requested further information on the implementation of the Convention, to which he wished to respond.

With regard to the "trial period" required for public servants and the scope of Act No. 4688, he indicated that the Act had been amended, based on social dialogue, by Act No. 5198. At a recent meeting of the Tripartite Consultation Board, it had been decided that work would be continued on the new draft, including the removal of the trial period and enlarging the scope of the Act with regard to the categories entitled to the right to organize. He added that the allegation that public employees, who were increasingly recruited under fixed-term contracts, were excluded from the scope of Act No. 4688, was misleading. Fixed-term employees had the same union rights as their counterparts in the private sector. Furthermore, it was intended to remove some of the restrictions now contained in section 15 of the Act so as to limit exceptions to positions of trust in so far as possible.

On the subject of the criteria used by the Ministry of Labour to determine the branch of activity into which an establishment fell, and criticism that this might hinder the right of workers to join unions of their choice, he wished to make a clarification. With a view to preventing disputes, Act No. 2821 envisaged careful demarcation of branches of activity, taking into account international standards. In the exceptional case of an inter-union dispute as to demarcation, the Ministry of Labour was responsible for making a determination at the request of the parties, and its decision could be appealed to the courts. The determination of branches of activity in his country was based on objective criteria with a view to maintaining a sound and effective collective bargaining system in which workers were free to join any union established in the respective branch of activity. With reference to the case of Dok Gem-Is, he indicated that a jurisdictional dispute had led to a transfer of competence between two unions, with the workers remaining free to join other unions in the branch or to establish a new union.

In response to the request for information by the Committee of Experts on the proposed merger of certain branches, he indicated that the purpose was once again to rationalize the organizational structure in accordance with international standards and to remove unnecessary overlapping. For example, sugar and food, as well as road, railway, sea and air transport, which were listed as separate branches under the existing system, would be merged, based on objective criteria, such as the organizational structure of international trade union secretariats. Past indictments had no adverse impact on the right to organize of workers, who are once again free to join organizations of their own choosing. The proposed modification, which was intended to combine a few branches with a view to clarifying the nature and scope of industrial unions, had been classified by the Committee of Experts as "not in itself incompatible with the Convention".

With regard to the comment by the Committee of Experts that several provisions of Acts Nos. 2821, 2822 and 4688 unduly regulated internal union matters and might therefore give rise to undue interference by the public authorities, he emphasized that the procedures envisaged did not hinder the independence of organizations, but were intended to serve as guidelines for the democratic functions of unions, transparency in their activities and the protection of the rights of their members.

Turning to the observation by the Committee of Experts that section 10 of Act No. 4688 empowered the Ministry and union members to apply to the courts for the removal of union officers who were in breach of the provisions on union elections, he said that the final decision lay with the courts and the provisions were in practice invoked most frequently by trade union members. The purpose was again to protect the rights of union members and safeguard union democracy. Nevertheless, the Tripartite Consultation Board had decided to examine the matter further.

Turning to the comment of the Committee of Experts that the restriction set out in Act No. 4688 had been maintained concerning the suspension of the term of a union officer during her or his candidacy in local or general elections and would be terminated in the event of failure in such elections, he said that the criticism was based on a misunderstanding. The duties of such officers were, in practice, terminated in the event that they were elected, rather than if they failed to be elected. The relevant provision was based on a constitutional provision and the Committee of Academics was seeking an appropriate solution.

With reference to the comment by the Committee of Experts that section 35 of Act No. 4688 made no mention of strike action in the public sector, he indicated that workers engaged under employment contracts in the public sector enjoyed the same right to strike as workers in the private sector. Nevertheless, he recalled that the right of public servants to strike under the terms of the Convention had not been resolved in the context of the ILO. Even so, in accordance with the views of the Committee of Experts that the right to strike in the public sector should only be limited in the case of public servants engaged in the administration of the State, the Government was launching a reform intended to define "public servants" in the narrow sense and to distinguish them carefully from other public employees. Taking into account the comments of the Committee of Experts, the issue of the right to strike of other public employees would be addressed, although a constitutional amendment would be required. He undertook to keep the ILO informed of progress in this regard.

Concerning the restrictions contained in Act No. 2822 on the right to strike, he emphasized that the draft Bill to amend section 29 of Act No. 2822 had made significant progress in deleting certain occupations or services in which strike action was not currently allowed, including lignite-fed power plants, banking and public notary services and urban land, road, rail and sea transport. The removal of the restriction on the right to strike in the production, refining and distribution of natural gas, town gas and petroleum was also being debated by the Committee of Academics. In this case, the right to strike had been given priority and expanded through its extension to workers in establishments where it had formerly been prohibited.

With reference to limitations on strike picketing, he said that the removal of certain restrictions, such as the prohibition on providing places of shelter for picketers in front of and around the plants concerned, was included in the Government's reform agenda.

Turning to the comment by the Committee of Experts that there was an excessively long waiting period before a strike could be called, he indicated that the time periods envisaged were maximum ceilings intended to provide some flexibility for the parties. The draft legislation envisaged a simpler and more flexible mediation process which would shorten the period for a union to call a strike.

On the subject of the prohibition of strikes for political purposes, workplace occupations, general and sympathy strikes, he noted that these restrictions emanated from article 54 of the Constitution. He added that the lawfulness of some of the categories of industrial action referred to by the Committee of Experts, including secondary boycotts, general strikes and workplace occupations, was controversial among academics and was not shared by all legal systems.

Referring to the comment that Act No. 2822 provided for heavy sanctions for participation in unlawful strikes, he indicated that the records did not include information on any trade unionists indicted for such activities. However, work was being carried out by the Committee of Academics on this issue, which would be taken up by the Tripartite Consultation Board. With regard to the application of section 312 of the Penal Code to trade unionists in the legitimate exercise of their activities, he said that section 59 of Act No. 2821 clearly specified the penal sanctions applicable for contraventions of the Act. So far, the Ministry of Labour was not aware of any trials or indictments of trade unionists under this provision. The issue of how collective agreements could be concluded in establishments covered by strike bans was still a disputed issue.

On the subject of the lawsuit against DISK, he indicated that the requirement of ten years' active employment to be able to establish a union, as set out in the Constitution, had been repealed by a constitutional amendment. The Committee of Academics had also decided to amend Act No. 2821 in this respect. He indicated that no lawsuit had been brought against DISK officers by the Ministry on those grounds, but only for their removal from office due to the failure to meet the requirement concerning active employment.

In conclusion, he re-emphasized that, as noted with satisfaction by the Committee of Experts, his country had made significant progress in bringing its legislation into conformity with ILO standards. In this connection, he welcomed the ILO's pioneering role in contributing to his country's effort to accede to the European Union. The comments of the Committee of Experts had therefore bringing its efforts in guiding its labour legislation into line with European Union standards and Turkey was determined to maintain its sincere efforts to achieve that goal.

The Worker members thanked the Government for the detailed information provided which should be examined by the Committee of Experts. The context of this case was a positive one. Turkey had undertaken serious reform efforts and had made significant progress in respect to international and European standards regarding human rights and the rule of law. While most of the positive changes occurred in legislation and a gap remained between the law and its implementation in practice, the Government had a remarkable record, which gave rise to expectations. The Worker members recognized the work done by the Government regarding the issues under discussion in the Committee, but stressed that much more needed to be done. One could not ignore the shortcomings with regard to the application of Convention No. 87. Violation of basic trade union rights had a long and appalling record in Turkey. Many of the violations in law were the heritage of the military rule of the 1980s and the ILO had criticized the situation in Turkey many times in the past 25 years, even before the country had ratified Conventions Nos. 87 and 98. The Worker members regretted that the Government followed a delaying tactic with regard to addressing the serious shortcomings in the trade union and industrial relations legislation. That was striking, as the Government had been able to act very quickly on other issues in the past two years, for instance regarding the implementation of the European aquis in the field of social policy or the reforms to bring the army under democratic control. It was therefore difficult to accept that the Government was unable for decades to amend the legislation in question on points which were clear and on which the ILO had sent many technical assistance missions. The Worker members explained this as an indication of a lack of political will on the part of the Government and the low priority given to this issue so far.

The Worker members stressed that the fact that this case had not been before the Committee since 1997 did not mean that all issues had been resolved. In its report, the Committee of Experts had expressed satisfaction only in connection with just one specific point, i.e. the repeal of a provision imposing compulsory arbitration in export processing zones. Recalling that the Committee of Experts also noted with interest six planned amendments to Acts Nos. 2821 and 2822, the Worker members insisted that these were, in fact, only potential improvements, as the draft bills concerned had not yet been adopted. It was unusual that the Committee of Experts would draw such firm conclusions on the basis of draft legislation. Attention should also be paid to the fact that, according to the Committee of Experts, some deficient provisions had been repealed but reintroduced elsewhere. In addition, the Committee of Experts continued to raise concerns over a number of issues: (1) the right to organize of certain categories of public servants; (2) the determination by the Government of the branches of industry which were the basis for organizing industrial-level unions; (3) several provisions pertaining to the internal functioning of unions; (4) the removal of trade union executive bodies in case of non-respect of government requirements regarding the internal functioning of trade unions; and (5) the right to strike in the public service and outside the public sector.

The far-reaching restrictions of the right to organize, including the right to strike, of public employees were a very serious issue. A key problem was the definition of public employee, which was much wider than provided for under the Convention, which allowed restrictions of the right to strike only for public employees who exercised authority in the name of the State and for those working in essential services in the strict sense of the term. The studies regarding the definition of public employee announced by the Government would, of course, take time, but they should not be turned into another excuse to continue long-standing violations of fundamental trade union freedoms. The Worker members urged the Government to confirm that it intended to amend the legislation in question in the near future in order to bring it into line with the Convention.

The issue of definition of branches was highly important for workers to exercise their right to form and join unions of their own choosing. On the basis of the present legislation, workers could simply have their union taken away from them. In this regard, the Worker members regretted that the Government had not commented on the conclusions and recommendations of the Governing Body regarding Case No. 2126 of the Committee on Freedom of Association to which the Committee of Experts had referred in its report.

There were very many ways in which the public authorities could interfere in the internal affairs of trade unions on the basis of the legislation in force which contained many unnecessary and detailed prescriptions of how trade unions should operate. These provisions brought to mind the years of military dictatorship, when trade unions were seen as dangerous and subversive organizations. The national Constitution written by the regime at that time contained numerous anti-trade union provisions. Most of them had been repealed, but, regrettably, many survived in the legislation, which was based on these constitutional provisions. Against this background, the Government's argument that these legislative provisions were intended to further the democratic functioning of trade unions was rejected as absurd. The Worker members urged the Government to amend as quickly as possible the legislation in question. They also urged for an end to the practice of public prosecutors in Turkey to open cases against trade unions which allegedly had violated these laws, including the lawsuit against DISK under section 54 of the Trade Unions Act mentioned by the Committee of Experts. Fortunately, DISK had recently been acquitted.

The Worker members also stressed that the problems in Turkey regarding the application of the Convention were not restricted to legal matters but also concerned violations in practice. Such violations occurred regularly, as evidenced by the many observations by trade union organizations and the cases of the Committee on Freedom of Association to which the Committee of Experts had referred in its observation. As a small but telling example, the Worker members stated that Turkish workers could change union membership only through an act of a public notary for a fee of 40 euros. This practice should be abolished as soon as possible. Further, with reference to the Committee of Experts' comments regarding restrictions on freedom of association in the four south-eastern provinces of the country, the Worker members highlighted a lawsuit under way against EGITIM-SEN, a teacher's union, for alleged breaches of the Constitution and the Trade Unions Act which might very well lead to closure of the union. The Committee of Experts should look into this matter and the Conference Committee should discuss the issue after they had given their opinion.

In conclusion, there were certain improvements, which were welcomed. However, these improvements were modest and practically all of them still had to materialize in so far as they were only contained in draft legislation. The Government had been extremely slow in addressing the deficiencies in trade union and industrial relations legislation, which was a matter of political priority and will. The Worker members urged the Government to make a firm commitment that it would indeed act without delay, and in the way recommended and requested by the Committee of Experts. They also requested the Government to do whatever was in its competence to end the opening of new court cases based on anti-union articles of the Constitution which had already been repealed, and still existing legislation based upon these, but now under review. The Committee should highlight both progress and backwardness of Turkish trade union and industrial relations legislation and encourage the Government to bring this legislation into line with the Convention, with the same determination as that displayed in the reforms made in other areas in the process of Turkey's bid for EU membership.

The Employer members thanked the Government for the information it had provided, some of which was new and would have to be examined by the Committee of Experts before the Employer members could comment on it, due to its complexity. The report of the Committee of Experts provided some positive indications with regard to this case. In paragraph 38 of its report, the Committee of Experts had listed Turkey among the countries where progress had been achieved, thus expressing its satisfaction at the adoption of certain measures by this country. Moreover, in its observation the Committee of Experts had noted with interest certain other measures which were in the process of adoption with regard to ten significant points. Several provisions had been enacted and others considered. A Committee of Academics had been set up to prepare draft legislation.

Nevertheless, the Committee of Experts had clearly noted difficulties in relation to other points. In this respect, the Employer members emphasized that although the Government had been taking significant steps to bring its law into conformity with the Convention, it was important to take further steps in this direction. They noted as a positive sign the fact that the Government seemed to have the political will and to clearly understand the steps needed to remedy the situation. The outstanding issues were detailed and complex as shown both by the observation of the Committee of Experts and the Government's response. The Conference Committee did not have the ability to resolve these issues directly and needed the assistance of the Committee of Experts in this respect. The Employer members considered that the level of nuance and detail involved in the full implementation of the Convention was astounding and wondered whether this reflected appropriately the initial purpose of the Convention.

The Employer members concluded by noting that this was a continued case of progress in the implementation of the Convention, as indeed the Committee of Experts had also noted, and that the Government should provide details in its report to the Committee of Experts so as to explain the situation in the country and enable the Conference Committee to return to this case in the future.

The Worker member of Turkey stated that noteworthy improvements had been made in bringing the law into conformity with the Convention. Certain remaining obstacles to the full implementation of the Convention were going to be removed with the adoption of the two draft bills, while the social partners had been involved in consultations to harmonize the labour legislation in accordance with ILO and EU standards. Nevertheless, certain concerns remained. While originally the Government had amended section 37 of the Trade Unions Act No. 2821 - which concerned the suspension of trade union mandates in case trade union officers ran for office in local or general elections and the termination of their mandates upon election - later on the amendment had been withdrawn and section 37 remained unchanged in the draft bill. In addition to this, Act No. 3984 prohibited trade unions from establishing their own television and radio channels despite the fact that the audio and visual media were the most effective methods to ensure that the voices of trade unionists were heard. Furthermore, in 2003, a strike at the Pasabahce Glassware Factory had been postponed twice on the basis of section 33 of Act No. 2822 which provided for a 60-day postponement in case of threat to public health and national security. The speaker expressed doubts about whether a strike at a glassware factory could constitute a threat to national security. In addition to this, a new effective system for the resolution of collective disputes was necessary given that under the current system, the right to strike could not be exercised before the expiration of a five-month period which included a mediation stage beginning 30 days after the opening of negotiations. As for the case of EGITIM-SEN mentioned by the Worker members in their opening statement, he wished to specify that it was necessary to wait for the comments of the Committee of Experts on this matter, which concerned the national Constitution and the independence of the judiciary, before any discussion could take place on whether there was a violation of the Convention. The speaker concluded by urging the Government to adopt the legislative amendments as soon as possible in accordance with its stated commitment.

The Employer member of Turkey stated that over the last 20 years improvements had been made in Turkey, as recognized by the Committee of Experts. The Ministry of Labour and Social Security and the social partners had signed a Protocol in 2001 with a view to modernizing the labour legislation. A Committee of Academics had been established to prepare a draft Trade Unions Act, and a draft Collective Labour Agreement, Strike and Lockout Act. While the drafts prepared balanced the interests of the social partners, the Committee of Experts had found that some aspects were incompatible with ILO criteria. Unfortunately, the texts on which the Committee of Experts had commented were not the latest version of the drafts. As they stood at present, the texts did no longer contain a strike prohibition for banks and public notaries; the prohibition of unions' television and radio stations; the conditions of being of Turkish nationality and having at least ten years of employment for eligibility to stand for trade union office; the possibility that Governors send observers to the general assemblies of trade unions; the requirement to obtain permission to invite foreign trade unionists to Turkey or to travel abroad. The Committee of Academics established by the social partners and the Government had always taken the comments of the Committee of Experts into account. The Conference Committee should request the Government to supply the latest version of the draft legislation. Section 312 of the Penal Code had been amended and did no longer relate to trade union activities. In conclusion, the situation in Turkey was not serious. There was a tripartite agreement to further develop the current draft legislation and it was expected that a major reform of collective labour law would be approved during the coming legislative period.

The Government member of Cuba stated that the explanations offered by the Government were meant to clarify certain issues raised by the Committee of Experts and recalled with satisfaction the amendments made to Act No. 4688 and important modifications to Acts Nos. 2821 and 2822. The Government had provided further examples of collaboration when it submitted new legislative projects for consultation.

The Worker member of Pakistan took note of the positive developments in Turkey with regard to the fundamental right to freedom of association, to the effect that the Government had prepared draft bills to modify Acts Nos. 2821 and 2822 in order to bring its law and practice into conformity with the comments made by the Committee of Experts in its observation. The speaker emphasized that the Government needed to do more in order to fully bring its legislation in line with the Convention and urged the Government to rectify the situation as soon as possible.

The Government representative thanked the members of the Committee for their valuable contributions to the discussion. Over the past 20 years there had been discussions and criticisms made about the legislation of Turkey and he noted with satisfaction that these criticisms had been allayed during the last five years as the Committee of Experts had indicated. With regard to concerns expressed about the pace of the legislative reform, he wished to assure the Committee that the current Government was determined to bring about change. A three-member Committee of Academics, all experts in their field, had been established to take up the revision of the laws on freedom of association and collective bargaining. The Committee of Academics had finalized its proposals which would be discussed among the social partners from 16 to 18 June 2005 in order to be given final form. The proposals would then be taken up for tripartite consultations in September 2005. The legislative process was based entirely on tripartite social dialogue.

As for the specific issues raised during the discussion, the speaker pointed out that the reason why the adoption of the draft bills amending Acts Nos. 2821 and 2822 had been deferred was that, in the meantime, new laws had been adopted, namely, the Associations Act and the Penal Code, the provisions of which had to be studied carefully in order to harmonize them with the text of the two draft bills. For instance, the new Associations Act had repealed the previous requirement that a Government observer be present during the general assemblies of associations. The Penal Code provided for sanctions against acts of antiunion discrimination which went as far as imprisonment. However, the process of examination and harmonization of the texts required time. The Committee of Academics would give due consideration to this issue upon its return to Turkey.

With regard to the issue of suspension of trade union mandates in case of participation in elections at the local or national levels, the speaker specified that trade union leaders could return to their trade union posts in case they lost the local or general elections. In case they were elected, the Committee of Academics had initially proposed that trade union leaders could maintain both posts (in the trade union and in Parliament) except for officers of public service unions who could maintain only one post. However, when the Committee of Academics had completed the draft, it became clear that the provision was incompatible with the national Constitution and therefore had to be lifted. The Committee of Academics was contemplating ways to remedy this situation.

As for the comments made by the Worker members with regard to the need to appear before a notary in order to join or resign from a trade union, the speaker indicated that this provision had been introduced in 1971 in order to avoid inter-union disputes on the recognition of representativeness for collective bargaining purposes. However, the Committee of Academics was aware of the difficulties that this provision raised and its modification or repeal was possible. With respect to the mediation process, the speaker specified that it lasted for 15 days and applied in case there was no agreement between the parties after 30 days of negotiations. The Committee of Academics was planning to eliminate one step in the procedure for the resolution of disputes in order to streamline it.

With regard to the case of EGITIM-SEN, the speaker noted that, as this case had not been examined by the Committee of Experts, it would be better to wait for comments before discussing it before the Conference Committee. Nevertheless, he wished to specify that this case related to the constitution of EGITIM-SEN, which provided as one of the trade union's purposes the provision of education in one's mother tongue. By "education" the provision of formal basic education was referred to and not the right to use one's own language freely in the media or through the provision of private education, which was henceforth guaranteed in Turkey in conformity with EU criteria. Because of these provisions, the Governor's office, which was the competent authority for the registration of trade unions and for granting them legal personality, had requested the trade union to make corrections to its constitution. However, no changes had been made and the judicial authorities had become involved. The Supreme Court had rendered a decision to dissolve the trade union as it had not brought its constitution into conformity with the law. The Ministry of Labour had maintained a flexible and tolerant stance with regard to this issue and had given the trade union extra time to correct its constitution. It would continue to do its utmost to see that EGITIM-SEN was revived and that the necessary changes were made to its constitution. The speaker further specified that the administrative authorities did not have the power to dissolve trade unions and that this competence rested exclusively with the courts.

The Worker members regretted again the practice of repealing certain provisions, while reintroducing them elsewhere, and the opening of court cases against trade unions based on legislation which the Government intended to repeal. In response to the Government's indication that all changes to labour legislation had been based on social dialogue, they stated that even where legislative measures would be taken based on tripartite consultation, it did not necessarily seem that they would be in line with the Conventions. It was up to the Committee of Experts. The Conference Committee should urge the Government to demonstrate its concrete political will to bring about change by adopting the proposed legislation in the very near future and to report on this achievement in its next report to the Committee of Experts.

The Employer members expressed appreciation for the detailed reply of the Government representative. They asked the Government to provide a complete report to the Committee of Experts on all the points raised and to include therein any draft legislation or proposals that might address the observations relating to the implementation of the Convention.

The Committee took note of the oral information provided by the Government representative and of the ensuing discussion. The Committee noted with interest that, according to the report of the Committee of Experts, a provision had been introduced into the legislation to bring it into greater conformity with the Convention in one specific area. Nonetheless, the Committee noted with concern that there was still a certain number of discrepancies between the legislation and the Convention regarding the rights of workers and employers without any distinction to form organizations that they deemed appropriate and to affiliate themselves with these organizations and to the right of workers' organizations to draw up their statutes and rules, to freely elect their representatives and organize their activities without interference by the authorities in the public and private sectors. The Committee noted that different workers' organizations had presented comments on the application of the Convention.

The Committee took note of the Government's statements according to which its objective was to eliminate the different divergences between the Act on public employees' trade unions, the Trade Unions Act and the Collective Labour Agreements, Strike and Lockout Act through draft laws. The Committee also took note of the explanations provided by the Government on the legislation in force.

The Committee expressed its concern at the legal action taken to dissolve DISK. The Committee urged the Government to take the steps necessary to withdraw the legal action taken and to take steps to avoid legal cases based on legislation that was in the process of being amended and which was not in conformity with the Convention.

The Committee also requested the Government to communicate all relevant information on the dissolution of EGITIM-SEN so that the Committee of Experts could examine this matter in full knowledge of the facts. While taking note with interest of the different draft laws under preparation to bring the law into conformity with the Convention, the Committee requested the Government to spare no efforts to ensure that such draft laws were rapidly adopted taking into account the comments of the Committee of Experts so that they could be examined on the occasion of the next report.

The Committee requested the Government to provide in its next report to the Committee of Experts detailed and complete information on all pending issues including all the topics raised by the Committee, the latest draft laws and whatever text was adopted, and expressed the hope that it could take note in the near future of major progress, specifically that the legislation and national practice would be brought into full conformity with the Convention.