Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information in the reports communicated by the Government on 8 March and 6 October 2005, and 19 July 2006 as well as the comments submitted by the following organizations: the Confederation of Public Employees Trade Unions (KESK), the Turkish Public Employers’ Union Confederation (TÜRKIYE KAMU-SEN), and the Union of All Municipality Civil Servants (TUM BEL-SEN). The Committee also notes that both the joint complaint made by KESK and Tum bel-Sen, dated 2 February 2005, and the allegations made by TÜRKIYE KAMU-SEN, dated 9 February 2006, concern the application of Conventions Nos. 98 and 151 within the context of Turkish law, specifically as they involve  Public Employees’ Trade Union Act No. 4688

1. Article 1 of the Convention. Acts of anti-union discrimination. In previous comments, the Committee had pointed out that Section 18 of Act No. 4688, while generally prohibiting acts of anti-union discrimination, does not impose any sufficiently dissuasive sanctions. Concurrently, both the Türkiye Kamu-Sen, in its most recent report, and the International Confederation of Free Trade Unions (ICFTU), in a previous report, pointed to a number of instances in which public employees, as trade union members or officers, suffered various acts of anti-union discrimination. The Government indicates that any violation of Article 18 does afford the representative legal recourse; the Committee notes however that it does not define what the sanctions may be imposed, nor give instances where sanctions have been used. Recalling that legal standards are inadequate if they are not coupled, notably, with sufficiently dissuasive sanctions to ensure their application, the Committee requests the Government to submit with its next report the text of any provisions containing sufficiently dissuasive sanctions to enforce Article 18 of Act No. 4688, and to provide information on any cases in which sanctions have been applied.

2. Article 4. Collective bargaining. The Committee notes that the comments submitted by TÜrkiye Kamu-Sen on 10 November 2004, claim that the 9 October 2004 decision by the Arbitration Board in the framework of the collective bargaining between the Public Employer Board and the Turkish Public Employers’ Union Confederation was made without the consent of both parties, as it was made outside the proper procedures as defined in Article 35 of Act No. 4688. The Committee equally notes the Government’s response indicating that the Reconciliation Board declared its final decision on 8 October 2004 only after the two parties had reached a partial agreement. Given the divergence between TÜrkiye Kamu-Sen’s version of these events and that of the Government the Committee reminds the Government that, where both parties have relied on a legislatively predetermined procedural mechanism for arbitration, and that procedure has not been followed and yet a final and binding decision is nonetheless handed down, this goes against the free and voluntary nature of arbitration and runs counter to the principles of the Convention. Therefore, the Committee stresses that in cases such as this, priority should be given to collective bargaining, arbitration should be voluntary, and the parties should always retain the option of returning to the bargaining table (see General Survey on freedom of association and collective bargaining, 1994, paragraph 259).

3. In previous comments, the Committee has looked at sections 3(a) and 15 of Act No. 4688, which denies several categories of public servants the right to organize and consequently the right to collective bargaining. The definition of a public employee in section 3(a) refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees (such as lawyers, civilian civil servants at the Ministry of National Defence and the Turkish armed forces, etc.) who are prohibited from joining trade unions. The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff) who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). Therefore, the Committee requests the Government to revise sections 3(a) and 15 of Act No. 4688, taking into account the considerations made above and to keep it informed of developments in this regard.

The Committee deals with other matters connected to the application of the Convention in its observation on the application of Conventions Nos. 87 and 98.