Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee notes the Government’s report and the comments made by the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Turkish Trade Unions (TÜRK-IS), the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN), as well as the Turkish Confederation of Employers Association (TISK). The Committee also recalls the communication from the International Confederation of Free Trade Unions (ICFTU) dated 15 December 2003, which relates to gender equality in employment and occupation.

2. Article 1 of the Convention. Prohibition of discrimination. The Committee notes that section 5(1) of the Labour Act of 22 May 2003 (No. 4857) prohibits any discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or similar reasons in the employment relationship, while no specific reference is made in this provision to the grounds of social origin, colour and national extraction which are listed in Article 1(1)(a) of the Convention. Section 5(3) provides that the employer shall not discriminate against an employee, either directly or indirectly, in respect of the conclusion, conditions, execution and termination of the employment contract due to the employee’s sex or pregnancy. The Committee also notes that a violation of section 5 constitutes an administrative offence and that victims of discrimination may claim compensation under section 5(6) of the Act. The Committee welcomes these provisions and asks the Government to provide information on the application in practice of the Labour Act’s equal treatment provisions, including information on the measures taken by the labour inspectorate, relevant judicial and administrative decisions and any sanctions imposed for non-compliance. In order to allow the Committee to appreciate fully the equal treatment provisions of the Labour Act in the light of the Convention’s requirements, further information on a number of points is requested from the Government in a direct request.

3. Discrimination on the grounds of political opinion. The Committee recalls its previous observations concerning the need to ensure that journalists, writers or publishers are not deprived of their employment or occupation for peacefully expressing their political opinion. In this regard, it notes from the Government’s report, as well as from information provided by the Government to the Committee of Ministers of the Council of Europe (Appendix 2 to Interim Resolution ResDH(2004)38, adopted by the Council of Ministers on 2 June 2004) that a number of legislative amendments have been made in order to bring Turkish law into conformity with the requirements of Article 10 (freedom of expression) of the European Convention on Human Rights, in particular the repeal of section 8 of the Anti-Terrorism Act, and the modifications of section 7 of the same Act, and of sections 159 and 312 of the Criminal Code. The Committee trusts that the Government will continue to take measures to ensure that journalists, writers and publishers are not restricted in the exercise of their employment or occupation because of political opinions expressed by them, and it requests the Government to keep the Committee informed on any further legislative or other measures taken to this end. The Government is also requested to provide information on the number, nature and outcome of cases involving convictions of journalists, writers and publishers under the Anti-Terrorism Act or the Penal Code, including indications as to whether any prison sentences have been pronounced in such cases.

4. Discrimination on the grounds of religion and sex. Recalling its previous comments concerning the existing restrictions on university students wearing Islamic headscarves, the Committee notes the statements by the Government, DISK, TÜRK-IS, and TISK to the effect that these restrictions were in accordance with the national Constitution and with the European Convention on Human Rights, and were necessary because the headscarf issue has been used by some political parties to advocate constitutional change that ultimately would abolish established human rights guarantees. The Committee notes the judgement of the European Court of Human Rights in the case of Leyla Şahin v. Turkey of 29 June 2004, which the Government has supplied with its report. In this case, the Court ruled that regulations imposing restrictions on wearing of Islamic headscarves in universities constituted an interference with the applicant’s right to manifest her religion. However, no violation of the European Convention had occurred, because, in the prevailing Turkish context, the restrictions were necessary in a democratic society to protect the rights and freedoms of others. The Committee notes that the Grand Chamber of the European Court of Human Rights issued a judgement on 10 November 2005 confirming the decision of 29 June 2004.

5. The Committee recalls that, in principle, where restrictions or exclusions based on a religious practice are made, which have the effect of nullifying or impairing equality of opportunity and treatment in employment and occupation, discrimination, as defined in the Convention, may have occurred. It maintains that restrictions on the wearing of head coverings may have the effect of nullifying or impairing the access to university education of women who feel obliged to or wish to wear, a headscarf out of religious obligation or conviction. The Committee trusts that the Government will keep the evolving situation under continuous review in order to determine whether such a general restriction is still necessary, and to ensure that the right of equal access to education and training at the university level of women who feel obliged to or wish to wear a headscarf out of religious conviction is not restricted, contrary to the Convention. The Committee remains concerned that the current restrictions may, in practice, keep women away from university education and training. In order to allow the Committee to obtain a better understanding of the situation, the Government is requested to provide in its next report its assessment of the impact of the current prohibition for university students to wear dress manifesting a religion on the participation of women in higher education, including an indication of the number of female students expelled from universities for wearing headscarves on university premises.

6. Article 2. Equality of opportunity and treatment of men and women. The Committee notes with interest that article 10 of the Constitution has been amended and now provides that the State shall guarantee effective equality of men and women. The Committee also notes that important progress has been made in establishing equal rights of men and women with the adoption of the new Civil Code which entered into force on 1 January 2002, which it believes can make a positive contribution to moving towards gender equality in employment and occupation. At the same time, the Committee is concerned to note statistical information indicating that the position of women in the labour market remains very weak. According to statistical data compiled by the ILO on the economically active population, the activity rate for women decreased from 26.9 per cent in 2002 to 25.4 per cent in 2004. The male activity rate increased from 70.5 per cent to 73.3 per cent during the same period. The Committee also notes from the data supplied by the Government that women with university educations are under-represented in executive and managerial jobs, compared to men at the same level of education. Some 58 per cent of economically active women worked in the agricultural sector in 2003, four out of five as unpaid family workers. The Committee also notes that while some progress has been made towards the equal participation of girls and boys in education, girls continue to be particularly affected by illiteracy and lag behind in almost all levels of education and particularly in higher education. The Committee encourages the Government to continue to take measures to promote equality of opportunity and treatment of men and women in education and employment and to continue to provide information on the progress made. The Government is also asked to provide information on the concrete steps taken to ensure effective gender equality in employment, in implementation of article 10 of the Constitution.

7. Equality of opportunity and treatment irrespective of race, colour, national extraction and social origin. In its previous observation, the Committee requested the Government to provide information on the measures taken or envisaged to promote equality of opportunity and treatment in employment and occupation of all parts of the population irrespective of race, colour, national extraction or social origin. The Committee notes that section 5 of the new Labour Act prohibits discrimination on the bases of language and race. The Committee recommends to the Government that it include the grounds of colour, national extraction, and social origin in section 5 of the Labour Act. Further, the Government is requested to provide information on the measures taken or envisaged to ensure and promote equal access to employment and occupation in practice, irrespective of ethnic or social background.

8. Article 3(d). Security investigations. The Committee recalls that personnel to be employed in public bodies and institutions holding classified information and documents are subject to security investigations under the Regulations on Security Investigations and Investigation of Records of 14 February 2004. The Committee notes from the Government’s report that security investigations are required for persons to be employed in a very broad range of public institutions dealing with matters unrelated to state security, such as research, education, labour and social affairs, media, culture, history, meteorology, statistics and trade. The Committee also recalls that security investigations do not only involve a checking of criminal convictions but also of any contact with the police and intelligence units. The Committee remains concerned that this kind of security investigation may lead to exclusions from employment contrary to the requirements of the Convention, for instance due to having peacefully expressed political opinions. The Committee once again emphasizes the need to ensure that the measures taken by the authorities authorized to request and conduct security investigations are in practice in line with the requirements of the Convention. It asks the Government to assess the extent to which security investigations have led to exclusions from public employment and the reasons thereof. Finally, the Committee encourages the Government to review, in the context of the ongoing reforms in Turkey, whether the scope of security investigations could be further limited, and invites the Government to provide information on any measures taken in this regard.

The Committee is raising other and related points in a request addressed directly to the Government.