Cas individuel (CAS) - Discussion : 1997, Publication : 85ème session CIT (1997)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Türkiye (Ratification: 1993)

A Government representative stated that, as concerned the observation by the Committee of Experts that there still remained certain discrepancies between the Convention and national legislation on trade unions, collective agreements, strikes and lockouts, some recent developments had taken place either before or just after the report of the Committee of Experts. In accordance with Act No. 4121, which had amended several articles of the Turkish Constitution on 23 July 1995 with a view to ensuring fuller respect for trade union rights, a Bill to amend the pertinent sections of Act No. 2821 had received the unanimous support of the relevant parliamentary commissions and was now on the agenda of the legislature for final enactment. The proposed amendment would repeal the existing prohibition on the political activities of trade unions contained in article 37 and would totally abrogate article 39(1), which restricted the nomination of candidates to the organs of public organizations by trade unions and prohibited unions from engaging in propaganda in support of or against such candidates. Following the abolition of these restrictions, the penal sanctions contained in articles 58 and 59 for violations would also be repealed. The same Bill would abolish the auditing of trade unions by the Government and would leave this matter entirely to the internal machinery of trade unions.

With regard to restrictions on the right to strike, a Bill had been prepared to amend various sections of Act No. 2822 with a view to enlarging the scope of the right to strike. The proposed amendment envisaged the granting of the right to strike to establishments and operations such as banks and lignite production, as well as to urban public transport, which would considerably limit the scope of compulsory arbitration machinery in Turkey. The other changes proposed in the Bill included a provision making a lockout decision by the employer possible only after the implementation of strike action by the trade union concerned; the calling of lockouts only in establishments where strikes had already been commenced; the automatic termination of lockouts which were in progress with the ending of the strike in an establishment; and, an increase in the number of strike pickets to be placed at each exit and entrance of a plant in which a strike had been called, as provided in article 48. Following the adoption of these and other proposed amendments, the relevant penal sanctions for offenders would also be automatically repealed.

On the question of the right of public servants to organize and negotiate collectively with the administration, he informed the Committee that a Bill had been prepared that was in conformity with the amended version of article 53 of the Turkish Constitution, as well as with the provisions of Convention No. 151. The Bill granted public servants, within the meaning of article 128 of the Constitution, the right to organize their unions and negotiate collectively with the administration as regards their salaries and working conditions. The Bill had been submitted after consultation with the social partners to the Council of Ministers on 14 May 1997. It incorporated the main features of Convention No. 151, including the full utilization of impartial conciliation machinery. It should be noted in this connection that workers employed in the public sector who were not deemed to be public servants within the strict definition of article 128 of the Constitution had enjoyed the trade union and collective bargaining rights of private sector workers from the very beginning of the collective bargaining system in Turkey. They were currently covered by Acts Nos. 2821 and 2822. Having been mandated by the Constitution, it was expected that this Bill on public servants' union rights would be submitted to Parliament as an item of high priority to be debated in the near future in the relevant parliamentary commissions. In this context, he emphasized the fact that public servants and other public functionaries employed in continuous and essential services of the State in accordance with the Civil Service Regulations, as defined in article 128 of the Constitution, had already begun to organize their unions even before the constitutional amendment of 1995. There were currently three public servants' confederations and numerous public servants' unions and union branches.

Finally, he referred to the observation made by the Committee of Experts that trade union legislation in Turkey was overly detailed and regulated issues which should be left to the constitution and rules of the unions themselves. The tendency to enact detailed legislation emanated from the deep-rooted legislative tradition inherent in Turkish society since the establishment of the Republic in 1923. Parallel to the development of other branches of law in Turkey, Turkish labour law had made continuous progress over the years through the adoption of detailed legislation with the approval of the social partners. Nevertheless, the restrictive provisions of Acts Nos. 2821 and 2822 had been improved by successive amendments, as illustrated by the enactments of 1986, 1988 and 1995, combined with the ratification of several important ILO Conventions in 1993 and 1994, and by the constitutional amendment of 1995. Furthermore, in an effort to strengthen the autonomy of the social partners in drawing up their constitutions in full freedom, work was in progress on another draft Bill. As illustrated by the above legislative measures, the constant efforts under way reaffirmed Turkey's commitment to bring trade union and collective bargaining legislation into compliance with ILO standards, and particularly Convention No. 87. In addition to Conventions Nos. 87, 98, 100, 105 and 111 of the ILO's core Conventions which had already been ratified by Turkey, he informed the Committee that the Forced Labour Convention, 1930 (No. 29), and the Minimum Age Convention, 1973 (No. 138), had been submitted to Parliament for ratification. Moreover, the Ministry of Labour had submitted the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), to the Council of Ministers. The protective provisions which already existed in Turkish legislation in those areas would therefore be further strengthened by the ratification of ILO Conventions Nos. 29, 138 and 159. In particular, he emphasized that with the ratification of Conventions Nos. 29 and 138 Turkey would have completed the process of ratifying the seven core ILO Conventions concerning the fundamental rights of workers.

The Employers' members considered that a number of positive developments could be noted in this case. For a number of years, the Government of Turkey had appeared regularly before the Committee with regard to Convention No. 98. On many occasions, the Committee had regretted that Turkey had not ratified Convention No. 87. This was now the first report on Convention No. 87 since its ratification and once again Turkey had been included in the list of cases to be examined by the Committee. However, it should be noted with appreciation that the Turkish Constitution had been amended in a number of respects to eliminate obstacles to freedom of association. The amendments to the Constitution had also concerned the ban on the political activities of trade unions, restrictions on freedom of association and collective bargaining placed upon public employees who were not civil servants. Following these constitutional amendments, a number of amendments had been made to the labour legislation and measures had been taken to propose further amendments to Parliament in order to implement the changes in the Constitution. The proposed measures included new legislation on collective bargaining for public employees who were not civil servants. The final point raised by the Committee of Experts in its report concerned the detailed nature of trade union legislation in Turkey. In this respect, the Government representative had indicated that his Government was prepared to simplify the relevant legislation. On the basis of the report made by the Government representative, it was possible to note that a number of noteworthy steps had been taken. Following the ratification of the Convention, consistent efforts had been made to adapt the legal provisions of the Turkish Constitution, which would result in amendments to the labour legislation. The Employers' members assumed that the Government would include all the relevant details in its next report on the Convention and they looked forward to receiving the report.

The Workers' members thanked the Government representative for the information that he had provided verbally and noted with interest the announcement of the ratification of other fundamental ILO Conventions. The Committee was examining this case for the first time, since Turkey had only ratified the Convention in 1993. Nevertheless, they recalled that the Committee had on four occasions during the 1990s examined very closely related questions concerning Turkey in the context of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The ratification by Turkey of this Convention and others, such as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Termination of Employment Convention, 1982 (No. 158), was an important act. Nevertheless, ratification was not sufficient and, in the case of Turkey, needed to be accompanied by amendments to the legislation. As noted by the Committee of Experts and the Committee on Freedom of Association, Turkish trade union legislation was overly detailed and regulated several matters that should be left to the competence of the constitutions and statutes of workers' and employers' organizations. They noted that since 1995 several laws had been amended and that article 52 of the Constitution, which prohibited trade unions from engaging in any political activities, had been repealed. Nevertheless, measures were still needed to bring the legislation into accordance with the provisions of the Convention. These modifications would make it possible to establish effective, healthy and democratic industrial relations and would in so doing facilitate the achievement of social justice and peace. The legislation needed to be simplified, among other measures, by eliminating provisions which permitted interference by the authorities and employers in the internal affairs of trade unions and which created obstacles to free collective bargaining. By way of illustration, they referred to the prohibition from establishing base-level unions for specific occupations, the double quantitative criteria for the negotiation of collective agreements, the general prohibition placed on solidarity strikes, the ban on strike pickets accompanied by heavy penal sanctions, the serious restrictions on freedom of association in export processing zones and the absence of legislative provisions for the reinstatement of workers who had been the victims of anti-trade union measures. Finally, the Workers' members, in the same way as the Committee of Experts and the Committee on Freedom of Association, noted with interest the Government's statement that it intended to continue reforming its legislation in order to bring it fully into conformity with the provisions of the Convention. They emphasized that the Government should provide all the relevant information and take all the necessary measures to repeal all anti-trade union legal provisions, which prevented the development of healthy industrial relations. In this respect, they recalled that ILO technical assistance could be made available to the Government if it so wished.

The Workers' member of Turkey recalled that the representation submitted by his trade union organization on 4 July 1994 concerning the non-observance by Turkey of Convention No. 87 had resulted in a very comprehensive report by the Committee on Freedom of Association, which had been approved by the Governing Body in March 1996. Since no legislative amendments had been adopted since the preparation of that report, all of its conclusions and recommendations were still relevant. He therefore hoped that the Conference Committee would further examine those basic points, which had also been referred to by the Committee of Experts in its report.

In March 1996, the report of the Committee on Freedom of Association in Case No. 1810 had stated that the Committee noted with deep regret that, despite the repeated assurances given by the Government in the context of numerous cases concerning Turkey which the Committee had examined, certain legislative provisions continued to violate rights guaranteed by Conventions Nos. 87 and 98 and that national practice was far from meeting Turkey's international undertakings. The Committee on Freedom of Association had requested the Government to intensify its efforts to take urgent measures to remedy the situation. He noted that, in the absence of effective guarantees and job security, many of the workers recruited by trade unions had lost their jobs. The Government of Turkey had not fulfilled its obligations to bring its legislation into accordance with Convention No. 158. Moreover, trade union membership was strictly prohibited for contract personnel in public economic enterprises, security personnel in private establishments and conscripts employed as workers in the public sector. The legislation that was in force did not guarantee the right to organize of public servants or homeworkers. In addition, although the amended Constitution stated that trade unions and higher-level organizations of public servants would be permitted by law to establish among themselves, no such law had been adopted two years after the enactment of the amendment. Indeed, the prosecution of public servants for legitimate trade union activities had continued with full vigour. The draft Bill prepared by the Ministry of Labour and Social Security in January 1997 was still far short of meeting the requirements of Conventions Nos. 87 and 98. Under section 6 of the Bill, founders of public servants' unions needed to have seniority of at least two years. Under sections 14 and 20, such unions could only be members of international public servants' organizations, which did not include ICFTU or ETUC. The fact that personnel in the judiciary, civilian employees in the armed forces and public servants in prisons were prohibited from joining unions meant that the two existing public servants' trade unions would have to be liquidated. The Bill was opposed by two trade union federations which had applied for membership of ICFTU and ETUC. According to information from trade union sources, 73,000 public servants had been fined, 1,500 had been demoted, the promotion of 1,700 public servants had been halted, nearly 8,000 public servants had received disciplinary punishments, 1,900 had been dismissed and 4,000 had been transferred to other cities because they had engaged in legitimate trade union activities. Moreover, the trade union representing public employees in the postal services had been liquidated. He added that political activities by trade unions were still severely curtailed. Despite the repeal of article 52 of the Constitution, more extensive bans and restrictions on political activity by public servants and by trade unions representing workers and public servants still existed in the Trade Unions Act, Public Servants Act and the Decree respecting contract personnel. Article 82 of the Constitution, which provided that trade union office was not compatible with being a member of parliament, was still in force. Trade unions still faced administrative and financial auditing by the authorities.

Although the right to strike was a basic and indispensable component of the Convention, Turkish labour legislation still violated the Convention in many respects. These violations had not been resolved by the amendment of the Constitution. Workers in the informal sector and unorganized workers could not strike. Workers could not call a strike without prior authorization from their trade union and could only strike as a result of a conflict of interest during collective bargaining. Confederations could not strike and strikes were prohibited for workers in export processing zones, public servants, contract personnel, students employed on a temporary basis for training purposes, conscripts employed in public enterprises and employees of the central bank. Nor could workers employed in the production of water, electricity, gas, lignite and petrochemicals call strikes. This ban also applied to bank employees, public notaries, fire-fighting personnel and land, marine and rail transport workers, despite the fact that none of these services could be considered essential in the strict sense of the term. Prohibitions were also placed on solidarity strikes, general strikes, peaceful workplace occupations and go-slows, despite the recommendations of the Committee on Freedom of Association in this respect.

Very cumbersome procedures had to be fulfilled in order to call a strike. These excluded extreme limitations as regards cooling-off periods, the number of strike pickets and their shelter. Employers had to be notified six days before the initiation of a strike and the courts were entitled to suspend lawful strikes on the grounds of damage to society. Moreover, the right to strike could be totally suspended under martial law and in emergency situations. The sanctions in the event of violations of these prohibitions were severe. In this respect, he indicated that the Bills prepared to amend Acts Nos. 2821 and 2822 had shared the same fate as the other Bills referred to by the Government of Turkey during discussions of Convention No. 98 over the past five years.

In conclusion, he stated that minor legislative improvements would not suffice to bring Turkish legislation into line with the Convention. In accordance with the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1810, the technical assistance of the ILO was required to achieve this belated task.

The Workers' member of Norway, speaking on behalf of the Nordic Workers in the Committee and the Workers' member of the Netherlands, strongly supported the Workers' member of Turkey's intervention concerning violations of the Convention. First, he recalled that in its observation, the Committee of Experts had mentioned that a wide range of political activities was still prohibited for trade unions, that several provisions restricted the right to strike in contravention of the principles of freedom of association and that national legislation regulated several matters which should be left to the competence of organizations of employers and workers. His organization had visited Turkey twice in autumn 1996. The findings of these visits confirmed that the Government was continuously responsible for serious violations of fundamental trade union rights, particularly in relation to fundamental international instruments, such as the Universal Declaration of Human Rights, ILO Conventions Nos. 87 and 98, as well as the European Convention on Human Rights. He shared the deep concern of the Committee on Freedom of Association which, in examining Cases Nos. 1810 and 1830, had noted with deep regret that certain legislative provisions continued to violate rights guaranteed by Conventions Nos. 87 and 98, and the national practice was far from meeting Turkey's international undertakings. He listed the following serious restrictions on the trade union movement: under the legislation there was no right to strike, organize or bargain collectively for contract personnel in public enterprises; according to national practice, public servants were deprived of the right to organize, to strike and to bargain collectively; regulations imposed broad restrictions on those rights for workers in the public and private sectors; the Free Trade Zone Act banned strikes in export processing zones and imposed binding arbitration; there was no provision for the reinstatement of dismissed trade unionists; the general lack of job security undermined legal protection; and, the laws remained overly prescriptive and regulatory about internal union rules and constitutions. Referring to the Committee of Experts' observation, he pointed out that although article 52 of the Constitution, which prohibited all political activity undertaken by a trade union, had been repealed, the observation failed to mention that the prohibition on political activity by trade unions still remained in national legislation (section 37 of the Trade Unions Act). Moreover, article 53 of the Constitution, which granted the right of trade unions in the public sector to bargain collectively, did not contain an effective right since it left it to domestic legislation to regulate the matter and nothing had been enacted as yet at the national level. He wanted to know from the Government representative what the proposed time frame was for the adoption of the necessary legislative changes on these two points. Consideration had also to be given to the fact that a lot of trade unionists had been prosecuted under the Anti-Terrorism Act, which provided for severe penalties. In fact, there were parts of Turkey where normal trade union activities could not be carried out and there were many examples of the detention of trade unionists just for having called a trade union meeting. According to information he had received recently, several union leaders had been arrested at the end of May 1997. Since there was little reason to believe that the Government on its own would manage to bring the national legislation into line with the Convention, he proposed that the ILO offer technical assistance so that the recently ratified Convention would be fully incorporated into the national legislation in the near future.

The Workers' member of Greece pointed out that once again, the information provided by the trade unions indicated the wide gap which could exist between the ratification of a Convention and its actual implementation. According to this information, only 2 million workers in Turkey were covered by collective agreements. The requirement for 10 per cent of workers in a branch and 50 per cent of workers in an enterprise were designed only to restrict the right to exercise freedom of association. For instance, in the case of a railway company, a trade union could not function if it represented only 50 per cent of workers across the country. Also, the organization of a trade union meeting required the prior authorization of the police to whom a complete list of the speakers had to be submitted. Those were only a few of the problems raised by this case, which could lead one to wonder which provisions of the Convention had been introduced in the legislation. It was urgent for the Government to act instead of simply making statements.

The Workers' member of Germany highlighted the discrepancy between the statement of the Government representative and that of the Workers' member of Turkey with respect to the legalistic and practical developments as regards application of this Convention. Referring to the individual cases described by that Workers' member, he stated that the Convention had been violated to an even greater extent in practice than in the law. It was therefore important to ask whether the Government representative was in a position to confirm that the measures required would be taken as requested by the Committee of Experts and the Committee on Freedom of Association. Referring to conclusions of the Committee on Freedom of Association in Cases Nos. 1810 and 1830, he stated that they gave rise to two main questions: first, could the Government representative state which measures had been taken to lift the current ban on trade unions from setting up radio and television stations, which interfered in the right to carry out union activities? Secondly, observing that the Government representative had not provided sufficient and precise information regarding the extent and substance of the draft Bill to amend the Trade Unions Act, would it amend all the legislative provisions which had been criticized regarding the right to strike? He recommended that the conclusions on this case be mentioned in a positive light only if the Government representative could give satisfactory answers to these questions.

The Government member of Iceland, speaking on behalf of the Governments of Denmark, Finland, Iceland, Norway and Sweden, noted with interest that article 52 of the Turkish Constitution, prohibiting all political activities by trade unions, had been repealed. He was looking forward to the practical implementation of this measure. He noted, however, that several Acts which prohibited a wide range of political activities still remained in force. Measures should be taken by the Government to bring these laws into conformity with the Convention. In order to do so, the Government could ask for the technical assistance of the Office.

The Workers' member of Pakistan fully supported calls from other speakers to bring the national legislation into conformity with the Convention. In its observation, the Committee of Experts had noted that the laws still contained restrictions on both political and trade union activities, as well as on the right to organize of public servants. In order to bring the legislation in line with the requirements of the Convention, the Government should envisage having recourse to the technical assistance of the Office.

The Government representative expressed appreciation for the views expressed by both Workers' and Employers' members but wanted it to be acknowledged that the enactment of legislation, especially in the labour relations field, was long and difficult in any country due to the conflict of various interests. As the Workers' members had rightly pointed out, ratification alone was not enough. This was why the Government was involved in the amendment of the Trade Unions Act, which was being debated in Parliament currently. With regard to the issue of the maintenance of the dual criteria for bargaining collectively referred to by the Workers' members, the Government representative emphasized that his Government was willing to repeal the dual criteria requirement but that it needed the consent of the social partners to do so; until now they had expressed their satisfaction with this requirement. Replying to the statement of the Workers' member of Turkey that job security for union members and officers still employed at the establishment did not exist, he pointed out that these persons benefited from the protection of the national legislation, which provided that compensation should not be less than the total amount of annual wages. Reinstatement was only granted to shop stewards. However, when Convention No. 158 would be incorporated into the national legislation, all workers, unionists and non-members of unions, would be protected. Regarding the call for the removal of the various bans on unions' political activities, he replied that section 37(2) of the draft Bill on the Trade Unions Act (No. 2821) now only stipulated that unions and confederations could not engage in activities outside their objectives, nor could they use the name, emblem, logo or signs of political parties under this provision. Moreover, section 37(3) provided that if union officials were nominated as candidates in general and local elections, their positions in unions would be suspended. If they were elected, their union leadership and functions would be terminated. Now the draft Bill provided that union and confederation officials elected to the organs of political parties would maintain their positions in their unions. In order to further trade, Act No. 3218 of June 1985 on Free Trade Zones banned strikes in export processing zones only for 10 years. Collective bargaining could be initiated and, if negotiations failed, the dispute was to be referred to compulsory arbitration for a period of ten years from the inception of the free trade zone. Similarly, trainee students (apprentices) who worked in industrial establishments as part of their vocational training were subject to a strike ban under section 22 of Act No. 3308, because they were students and not workers under the terms of Act No. 2821 and Act No. 1475 on labour affairs. With respect to the prohibition of union membership contained in section 21 of the Trade Unions Act, only professional members of the armed forces were barred from membership now that the ban had been repealed by Act No. 4101 in 1995. As for contract employees, they could be found only in state economic enterprises and their number was decreasing because of privatization. Moreover, contract employees, who were considered as "other public personnel" according to article 128 of the Constitution, would be covered by the proposed Bill on the trade union rights of public servants. Although no more than four strike pickets were allowed at one time under the current legislation, this number had been increased to eight in the draft Bill to amend Act No. 2822 on collective agreements, strikes and lockouts. Moreover, the draft Bill removed the administrative and financial auditing of unions and left this to the constitutions of the unions themselves. Finally, while the TUMHABER-SEN Union had been dissolved by the court of appeal, due to the absence of enabling legislation, this ruling was only applicable to the specific case in question. Besides, it would be premature to make definitive remarks about something for which the legislative process had not yet been finalized. The draft Bill to amend Act No. 2822 removed the bans on the right to strike in banks and lignite production and distribution, and maintained strike restrictions in some of the essential services where compulsory arbitration would be the last resort. The denial to confederations of collective bargaining and the right to strike was only natural as, in many countries, confederations were top-level horizontal structures, not conducive to collective bargaining. Unorganized workers had the right to strike, as well as members of the striking union. Although unions could not request any additional fees from their members other than the regular union dues, they were, unlike the situation in other countries, entitled to automatic "check-off" of union dues which strengthened them financially. The ban on the right to strike for rights disputes was based on a Constitutional provision and the right to strike was recognized only for interest disputes, as was the case in various Western countries. The law now provided for the referral of collective disputes to the labour courts or to voluntary arbitration. The allegation that many unionists were being subjected to legal harassment in Southeastern Turkey was misleading, since these people, who lived in an area subject to separationist terrorist activism, were probably detained for acts unrelated to their rights and functions. Therefore, all other public servants unions were functioning legally at present. The other points that had been raised were not related to Conventions Nos. 87, 98 or 151. He stressed the significant impact the ILO had had on shaping the national legislation relating to labour standards since Turkey became a member in 1932.

The Workers' members were of the opinion that even after the adoption of the amendments to the legislation several problems would remain, in particular regarding the export processing zones and the right to strike. They recalled that the Government committed itself to the Committee on Freedom of Association to pursue the reform of the legislation to bring it into full conformity with the Convention and the Government had been invited to request the ILO's technical assistance.

The Employers' members pointed out that after the amendment of the Constitution, the amendment of the Labour Code was necessary. Since the Constitution provided for the principles which had to be implemented by the Law, it was thus logical for the country to amend its legislation accordingly. Certain speakers had referred to Convention No. 98, but the discussion here should focus on the questions related to Convention No. 87. When the Committee of Experts mentioned in its report that it "noted with interest", this was a sign of progress which should be reflected in the conclusions of this Committee.

The Committee took note of the information provided by the Government representative and the discussion which had ensued. The Committee recalled that the Committee of Experts had taken note with interest of the constitutional amendments which had repealed the ban on trade unions from carrying out any political activity and which authorized collective bargaining for public servants' unions. Nevertheless, the Committee of Experts had once again asked the Government to adopt, in the near future, all the measures necessary for the drafting of legislation which would be in full conformity with the requirements of the Convention. This Committee urged the Government to take the necessary measures, in particular regarding the right of all workers, without distinction whatsoever, to establish organizations of their own choosing and the right of workers' organizations to draw up their constitutions and rules, to formulate their programmes and to bargain collectively without any interference by the public authorities. The Committee expressed the firm hope that it would be able to note concrete progress in the Government's next report, as regards the application in law and in practice of this core Convention. The Committee reminded the Government that it could resort, if it so desired, to the technical assistance of the Office.