Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the Confederation of Progressive Trade Unions of Türkiye (DİSK) received on 1 September 2022 which concern questions examined in this comment. The Committee also notes the observations of Turkish Confederation of Employers’ Associations (TISK) communicated with the Government’s report.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. Workers employed via private employment agencies. The Committee recalls that in its previous comment, it had requested the Government to provide information, including concrete examples, on how workers employed temporarily via private employment agencies (workers in a triangular employment contract arrangement) exercise their right to establish and join organizations of their own choosing. The Committee notes with regret that the Government has not provided any information in this respect and therefore reiterates its previous request.

Impact of sectoral classification. Domestic workers. The Committee notes that the DİSK indicates in its observations that sectoral classification of unions by law makes it impossible for certain categories of workers such as domestic workers to exercise their freedom of association and adds that in the workplaces which have both a production facility and an office or a store, organizing based on sectors make it impossible for all workers to join the same union, because offices and production plants are mostly registered in different sectors. The Committee requests the Government to provide its comments in this respect and also to indicate how domestic workers exercise their right to organize in practice and which unions represent them.

Article 3. Right of workers’ organizations to elect their representatives in full freedom and to organize their activities. In its previous comments, the Committee had noted that the last paragraph of section 10 of Act No. 4688 provides that in the case of non-respect of legal requirements concerning trade union meetings and decisions of general assemblies, the union executives are removed from office by decision of the labour court upon the application made by one of the members or by the Ministry of Labour. The Committee had requested the Government to review this provision. The Government indicates in this regard that the purpose of filing the lawsuit mentioned in section 10 is to ensure the convening of the general assembly of the organizations that do not conduct their plenary session in due time. The Committee notes that even though, according to the Government, the implicit purpose of the lawsuit provided in this provision is to convene the general assembly, its express object is to remove the union executives from office. Therefore, the Committee once again recalls that any removal or suspension of trade union officers which is not the result of an internal decision of the trade union, a vote by the members, or normal judicial proceedings, seriously interferes in the exercise of the trade union office and, accordingly, reiterates its previous request that the Government provide information on all measures taken or envisaged in this respect.

Right to strike. In its previous comments, the Committee had noted that whereas on the one hand, the seventh paragraph of article 54 of the Constitution (prohibiting politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, go-slows and other forms of obstruction) had been repealed, on the other hand, section 58 of the Act on Trade Unions and Collective Labour Agreements (Act No. 6356) restricted lawful strikes to disputes during collective negotiations, and it had requested the Government to indicate the manner in which protest action, sympathy strikes and other means of legitimate industrial action were protected. The Committee notes the Government’s indication that pursuant to the last paragraph of section 90 of the Constitution, in case of conflict between the international agreements ratified by Türkiye and domestic law, the provisions of international agreements shall prevail. Therefore, the right to collective action is guaranteed in line with the regulations on the right to strike in the Convention as well as other European and international human rights treaties. The Government adds that pursuant to these international agreements, the Court of Cassation accepts that workers have the right to peaceful collective action for professional purposes as a last resort. Taking due note of this information, the Committee recalls that under the Convention, strikes relating to the government’s economic and social policies, including general strikes, are legitimate; also calling for the recognition and exercise of fundamental liberties by recourse to strike is a legitimate form of collective action. The Committee also considers that particularly in the context of globalization characterized by increasing interdependence and internationalization of production, workers should be able to have recourse to sympathy strikes, provided that the initial strike they are supporting is itself lawful. The Committee therefore requests the Government to take necessary measures to revise the legislation with a view to expressly recognizing in domestic law all forms of legitimate industrial action.

Determination of minimum service. In its previous comments, the Committee had noted that section 65 of Act No. 6356 granted the authority of determining a minimum service in the event of industrial action unilaterally to the employer and had requested the Government to review this provision with a view to ensuring that workers’ organizations were able to participate in the determination of a required minimum service at the workplace, and that failing agreement the matter may be referred to an independent body that has the confidence of the parties. The Committee notes that the Government reiterates in this regard that there is no provision in section 65 forbidding or impeding the consultations and prior agreement between the employer and workers’ representatives on the required minimum service before the announcement is made by the employer. The Committee further notes in this regard the observations of the TISK, indicating that in practice, in collective negotiations carried out between the TISK and its worker interlocutors, a list of names and numbers of workers who may not participate in strikes and lockouts and their substitutes is prepared by the TISK management and shared with the worker party within six working days of the beginning of collective bargaining. If the worker party objects to the list, discussion follows until agreement is reached between the employer and working parties. While noting the Government’s indication that the competent trade union has the right to challenge the employer’s decision before the courts for a final determination as well as the TISK observation concerning the current practice, the Committee once again recalls that workers’ organizations should be able to participate in defining minimum services in the same way as employers (see the 2012 General Survey on the fundamental Conventions, paragraph 138), and that in order to promote the participation of the union in the determination of such a service in the event of industrial action, it would be important for the Government to explicitly provide for such participation in the law, rather than granting this authority unilaterally to the employer. The Committee once again requests the Government to review section 65 of Act No. 6356 with a view to ensuring under law that workers’ organizations are able to participate in the determination of a required minimum service at the workplace, and that failing agreement the matter may be referred to an independent body that has the confidence of the parties. The Committee requests the Government to provide information on measures taken or envisaged in this regard.

Public sector. In its previous comments, the Committee had noted that public servants in the broad sense of the term were prohibited from taking industrial action, and that the Public Employees Act No. 657 and Act No. 6111 provides disciplinary sanctions for such action. The Committee had noted that according to the Confederation of Public Employees Trade Unions (KESK), the ban on industrial action in the public sector covered a very broad class of workers, whose number amounted to three million. The Committee had requested the Government to review the legislation concerning public service workers with the relevant social partners with a view to its amendment, so as to ensure that the ban on industrial action is limited to public servants exercising authority in the name of the State and those working in essential services. Noting with regret that no information has been provided by the Government, the Committee reiterates its previous request and asks that the Government provide information an all measures taken or envisaged in this respect.

[The Government is asked to reply in full to the present comments in 2023.]