Individual Case (CAS) - Discussion: 2019, Publication: 108th ILC session (2019)



Discussion by the Committee

Government representative – Before I begin my remarks, being elected as the Chairperson and Vice-Chairpersons of this Committee, I wish you every success in your endeavours to make this Committee’s work more fruitful, in a spirit of constructive dialogue, worthy of the ILO’s Centenary.

Since your Committee’s last discussion of this case during the 100th Session of the International Labour Congress in 2011, there have been extensive developments in the trade union legislation of Turkey. A new Act on Trade Unions and Collective Labour Agreements (No. 6356) was enacted in 2012. The Act replaced two different acts: Acts Nos 2821 and 2822, which had drawn criticism from the Committee of Experts for many years and had become the subject of discussions in this Committee several times. The Act covers all those working under employment contract in both private and public sectors and regulates their right to organize and bargain collectively. The Act was the outcome of social dialogue and consensus between the parties that was, at times, not easy to achieve.

Another legislative change of great importance was the amendment to the Act No. 4688 on the Public Servants’ Trade Unions in 2012, which changed its title as Public Servants’ Trade Unions and Collective Agreement and introduced many far-reaching amendments to recognize public servants’ rights to collective bargaining.

After outlining the last decade’s developments, I would like to touch upon the allegations made by our social partners. As to the allegation of the TÜRK-IS that temporary workers employed by private employment agencies cannot enjoy trade union rights as they often change industry, I would like to emphasize that this form of contract is called a “triangular employment contract” in which a worker is employed by a temporary employment agency and works for a different employer. These workers have the right to organize in the branch activity in which the employment agency operates.

With regard to the allegation on the pressure exercised on the workers in public sector workplaces to join or not to join certain trade unions, I would like to point out that provisions guaranteeing the protection against anti-union discrimination exist in the Constitution, the Penal Code and the labour legislation. Both unions and workers have administrative and judicial means to contest such action.

The actions of anti-union discrimination by any employer are considered as a crime, punishable with imprisonment up to three years under articles 118 and 135 of the Penal Code. In addition, labour legislation provides compensation for such cases at least the amount of one year’s wage and, in case of dismissal, the possibility of reinstatement. As the public employers have also responsibility for fully respecting the law in discharging their duties, they are further liable under the public law.

With regard to civil liberties, I would like to reiterate that Turkey is a democratic country, upholding the rule of the law. In our country, no trade union has been closed and none of their officials were suspended or dismissed, due to their legitimate activities.

With the enactment of the Act No. 6356 and the substantial amendment of the Act No. 4688, the rate of unionization has steadily increased, reaching up to 22 per cent, public and private sectors combined.

In all democratic countries there is always a regulatory framework for organizing the meetings and demonstrations. Turkey is not the exception in this regard. In this context, when some trade union members transgress the law, destroy the public and private property and seek to impose their own rules during the meetings and demonstrations, then the security forces are naturally obliged to intervene to preserve the public safety. Indeed, by prior notification, marches and demonstrations can be organized.

How bizarre to discuss the lack of freedom in organizing meetings and demonstrations in a country where the last May Day celebrations were held by all trade unions and confederations in several cities around Turkey peacefully with enthusiastic participation.

We overcame such a dreadful and bloody coup attempt that we wish no country would experience. We lost 251 innocent citizens and thousands (2,391) of our people got wounded. The attempt for seizure of a democratic country was also condemned by the international community.

The allegations in the report concern the period of the state of emergency between July 2016 and July 2018 when our country tried to defend its national security and public safety. In this regard, closure of terror-related organizations which are organized under the guise of trade unions should not be exploited against Turkey in any platform. In Turkey, fundamental rights and freedoms, including trade union rights, are always and will be under the protection of the Constitution.

Apart from the right for everyone to seek judicial review against all actions and acts of the administration, every person may apply to the Constitutional Court alleging that the public power has violated any of his or her fundamental rights and the freedoms secured under the Constitution, which falls into the scope of the European Convention on Human Rights.

As requested by the Committee of Experts, I have brought with me to hand in to the secretariat several examples of the rulings of the Constitutional Court, which show that remedial channels are open and functioning well upon the invocation of trade unions or union members.

The trade unions and their members are expected to respect the law of the land as required by Article 8 of Convention No. 87. For example, the Constitutional Court emphasized this point in a ruling that “union membership must not necessarily lead the public officials to act contrary to the duties and responsibilities expected of them while enjoying their constitutional rights”. Unfortunately, few of the trade union members are in fact linked to the terrorist organizations and use trade union activities to disguise their illegal acts. When these union members are prosecuted, it is reflected as if they were prosecuted on the grounds of trade union activities.

Since it has a direct bearing on the issue of civil liberties, I would like to inform your Committee that a Judicial Reform Strategy was launched on 30 May 2019 by the President of the Republic himself. The main aims of this reform include: strengthening the rule of law, protecting and promoting the rights and freedoms more effectively, strengthening the independence of the judiciary and improving impartiality, increasing the transparency of the system, simplifying judicial process, facilitating access to justice, strengthening the right to defence and efficiently protecting the right to trial in a reasonable time. A clear and measurable Action Plan will also be prepared and the Ministry of Justice will issue annual monitoring reports.

On the article 15 of the Public Servants’ Trade Unions Act, I would like to indicate that in the determination of the public servants to be excluded from the scope of article 15, the second paragraph of Article 1 of the Labour Relations (Public Service) Convention, 1978 (No. 151), was taken into account. As you recall, this provision reads: “The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of highly confidential nature, shall be determined by the national laws or regulations”.

In principle, all public servants are entitled to benefit from the trade union rights, but due to the nature of their duties a limited number of the public servants are excluded from the scope. Restrictions are limited to senior public officials and to public servants in public services such as security and justice where disruption cannot be compensated.

On the issue of the strike suspension in the urban public transportation of the metropolitan municipalities and in the banking services, I would like to clarify that the power to suspend a strike in urban public transportation does not rest with the metropolitan municipalities.

Strike prohibition and strike suspension are two different things that are regulated in two separate articles of Act No. 6356. Services where strikes are prohibited are determined in article 62 of the Act while the possibility of strike suspension for 60 days in the above-mentioned services under certain conditions is regulated in article 63.

One should bear in mind that strike action during the collective bargaining process in Turkey is applied to the enterprise or workplace subject to the collective bargaining in its entirety and indefinitely. Therefore, when a strike action is harmful to the general health and the national security or the urban public transportation of metropolitan municipalities or economic and financial stability in banking services, the strike may be postponed for 60 days.

We are also transmitting a copy of Presidential Decree No. 5 concerning the State Supervisory Council, as requested by the Committee of Experts. Although we will be supplying more detailed information with our report, I would like to inform your Committee that there has never been an investigation or audit of a trade union organization or suspension of a trade union official by the State Supervisory Council in pursuance of Decree No. 5.

At this point, I would like to indicate that the Council’s power emanates from the provision of article 108 of the Constitution, which exists since the promulgation of the Constitution in 1982. Under this Constitutional provision, the Council had already power to conduct all kinds of examinations, inquiries and inspections at all public bodies and organizations including public professional organizations and unions. I would like to clarify that the State Supervisory Council has no authority to dismiss or to suspend any trade union officials. This authority is only applied to the public officials and the Council has never interfered with the internal functioning of trade unions in its history.

In addition, dissolution of trade unions and suspension of their executives is a matter regulated by the trade union legislation. As it is a special legislation it cannot be overruled, neither by presidential decrees nor the laws of general nature. Under article 31 of the Trade Unions and Collective Labour Agreement, only the competent courts are empowered to dissolve the trade unions and, if need be, suspend the union executives responsible for unlawful acts.

I would like to point out that the Act on Trade Unions and Collective Labour Agreements was prepared with the active participation of the social partners and taking into account the provisions of the relevant ILO Conventions, the European Union Directives and Revised European Social Charter. It broadens the rights and freedoms of the trade unions and their representatives and guarantees their independence.

Article 29 and its relevant Regulation stipulate the principles for internal supervision and external audits of the trade unions. According to their provisions, administrative supervision and financial audits of the trade unions and their confederations shall be carried out by their supervisory boards in accordance with the provisions of their statutes and their general assembly decisions of these organizations themselves.

On the last point concerning dissolution of some trade unions after the coup attempt on 15 July 2016, I would like to emphasize that these trade unions had very strong connections to the FETÖ terrorist organization. As I mentioned before, in no way the dissolutions of these trade unions are related to or based on any of their legitimate trade union status or activities.

Nevertheless, I would like to indicate that all the dissolved trade unions and the dismissed public servants by a State of Emergency Decree have the right to apply to the Inquiry Commission for a review of the dissolution or dismissal. Even the one confederation and nine trade unions, dissolved due to their connection to the FETÖ terrorist organization, have applied to the Inquiry Commission.

I wish to underline that dismissal or dissolution directly through a decree with the force of law was a measure applied only during the state of emergency and all of the judicial recourse avenues are open against the decisions of the Inquiry Commission through the judicial system, including the Constitutional Court of Turkey and the European Court of Human Rights.

Finally, we will submit our report in 2019 with the detailed information on the developments and with the copies of the documents requested for further examination by the Committee. We hope that in drawing up the Committee’s conclusions the revolutionary developments in Turkish trade union legislation should be acknowledged.

Worker members – We are examining the Turkish application of the Convention and this is a double-footnoted case and it is not surprising given the seriousness and persistence of violations of freedom of association which we fear now are now entrenched in the Government’s attitude towards workers. The last time we examined the Turkish Government’s application of the Convention was in 2011. At the time, the Committee expressed serious concerns over restrictions placed on the civil liberties of trade unions and their members and the arbitrary exclusion of trade unions from the exercise of the freedoms and rights guaranteed under the Convention.

Despite the time that has passed since then, the Committee of Experts report before us does, unfortunately, not point at any progress. On the contrary, the situation has significantly deteriorated in recent years with the persistence of arbitrary arrests and withdrawal of civil rights and the peaceful exercise of legitimate trade union activities. The Government has undertaken authoritarian measures to interfere in trade union affairs and impose heavy restrictions on the right to organize. We are in a situation in which it has become almost impossible for trade unions in Turkey to operate.

From 2016 in particular, the Government has justified continued violations of civil liberties under the guise of the state of emergency through associated decrees.

The law on meetings and demonstrations has consistently been used to prohibit numerous legitimate trade union activities. For example, in September 2018 about 600 workers were arrested in their dormitories at night for engaging in a protest against health and safety breaches at the construction site of the new Istanbul airport where, according to official figures, about 57 workers had died as a result of various health and safety violations. Though many of the workers have been released from pre-trial detention, about 31 workers are on bail under strict judicial control facing criminal prosecution.

As part of the attacks on independent trade unions, the authorities have also repeatedly dismissed workers for their trade union activities. More than 11,000 representatives and members of the Confederation of Public Employees Trade Union (KESK) were suspended from their jobs or sacked because of their trade union activities, under the pretext of national security and emergency powers by targeting peaceful trade union activity under very broad and vague criteria as terrorism. This stigmatization has created a clear, chilling effect on workers wishing to join trade unions. Trade unions are not terrorists, this climate of fear has to stop!

The absence of respect for civil liberties renders the concept of trade union rights meaningless. The Committee on Freedom of Association pointed out that national security and emergency measures do not justify a derogation from obligations under the Convention. The guarantee of the right to free speech, free assembly and trade union activities should never be considered as a threat to national security. The Government violated civil liberties because, allegedly, the trade unions and workers ignored or disrespected the requirements of the state of emergency or for engaging in political activities. In this regard, we reiterate the call of the Committee of Experts that the Government must take measures to “ensure a climate free from violence, pressure or threat of any kind so that workers fully and freely exercise their rights under the Convention”.

Secondly, we raise the restrictions placed on civil servants in joining and establishing trade unions. The Committee of Experts pointed out, and in particular, that section 15 of Act No. 4688 prevents public employees, magistrates and prison guards from exercising the right to freely join or form unions. While this provision has now been declared as unconstitutional, we note with concern that restrictions on civil servants continue to be imposed. The scope of Article 2 of the Convention recognizes the right of workers without distinction whatsoever to form or join organizations of their own choice. Despite this, the Government applied broad restrictions to join trade unions to one in six public employees, who are neither in the armed forces nor the police. This is a blatant breach of Article 2. The Government should urgently review this Decree relevant sections of Act No. 4688 including section 15 in consultation with the social partners.

Thirdly, we note the serious concern expressed by the Committee of Experts regarding excessive interference into trade union activities by public authorities contrary to Article 3 of the Convention. The principle of non-interference in trade union activities, programmes and administration protects the independence of action of trade unions including their right to take strike action.

The Committee of Experts highlights in particular that section 63(1) of Act No. 6356 does not conform with Article 3 of the Convention. This provision allows the Council of Ministers to suspend strikes for 60 days and unilaterally refer the underlying matters for compulsory arbitration if no agreement is reached after 60 days. While the law indicates that such a suspension should be limited to strikes that may be prejudicial to public health or national security, it has been interpreted in such a broad manner that strikes in non-essential services have also been effectively prohibited. These excessive powers to interfere in legitimate trade union activity were further boosted under Decree No. 678. This Decree allows the Council to postpose strikes in local transportation companies and banking institutions for 60 days contrary to an earlier constitutional court ruling.

In addition, the Workers’ group has serious concern over the adoption of Decree No. 5, which further exposes trade unions to undue interferences by the public authorities. Under the Decree, the State Supervisory Council – an outfit of the Office of the President – has power to investigate and audit trade unions and other associations at any given time. With this power, all documents and activities of trade unions and other associations will come under investigation without safeguards and guarantees provided by a prior judicial process. The effect is that unions are restricted and impeded from freely and fully exercising the right to pursue their legitimate activities without fear. Unions are forced to self-censor their activities and programmes in order not to suffer continued, politically motivated and malicious investigations and audits. This is an interference and a disguised form of prior authorization contrary to the Convention. This is a further example that Turkey has become a state of fear and oppression.

Any law that gives the authorities direct or indirect powers of control over the internal functioning of unions, for example by going beyond the obligation of the union to submit annual financial reports, is incompatible with the Convention. The Government must provide details of any investigations and/or audits it has conducted on unions to the Committee of Experts, including the outcome of these investigations and audits as well as dismissals or sanctions inflicted to trade unions and their leaders.

Finally, we are deeply concerned about the Turkish Government’s arbitrary dissolution of trade unions in violation of Article 4 of the Convention. Decree No. 667 provides that trade unions found in connection, communication or adherence to groups and organizations threatening national security or terrorism will be banned. The law makes no distinction between the trade union as an organization with an objective public purpose and individual actors. In effect, the Decree holds all members of the trade union guilty by association with the consequence of a close down of the union.

In accordance with Article 4 of the Convention, workers’ organizations should not be liable to be dissolved or suspended by the government. The supervisory bodies have held that dissolving or suspending a trade union organization is the extreme form of interference by authorities in the internal activities of workers’ organizations. As such, all necessary safeguards and guarantees must accompany any action in this regard. We regret that no safeguards nor guarantees have been undertaken within the framework of this Decree. Although the Government has set up an Inquiry Commission to review its actions after the fact, including the dissolutions, the process does not enjoy the trust of victims and trade unions due the manner in which it was constituted and the results of the processes so far. It is marred by a lack of institutional independence, long waiting periods, an absence of safeguards allowing individuals to rebut allegations and weak evidence cited in decisions to uphold dismissals.

To conclude, we highlight that a fundamental change is needed to effect the realization of the Convention for workers in Turkey. The source of real or perceived security challenges do not lie within free and independent trade unions and the guarantee of basic rights that define a democracy. Indeed, if we have learned anything in 100 years of the ILO it is that the guarantee of the right to freedom of association is indispensable for social justice and peace.

Employer members – The Employers’ group would begin by thanking the Government for its submission today. We make special note of the Government’s stated commitment to submit its 2019 report with detailed information and provide copies of the documents requested for further examination by the Committee of Experts. The information provided by the Government today is very important to allow us to better understand the manner in which Turkey is applying the Convention, the challenges it is facing and the ways it has found to overcome some of those challenges.

In looking at the history of this case, it is important to highlight that Turkey ratified the Convention in 1993. The Committee has discussed Turkey’s compliance with this Convention six times since 1997–2011, and we note that the Committee of Experts have made a total of 19 observations on Turkey’s application of this Convention in past years. We also note that Turkey received ILO technical assistance in the framework of the Improving Social Dialogue in Working Life EU Project, which was aimed at increasing the capacity of social partners and relevant public institutions at all levels including through numerous training activities on international labour standards in 2016, 2017 and 2018.

The issues in the present case which was double footnoted by the Committee of Experts this year concerned four main issues which we will discuss each separately.

The first issue identified by the Committee of Experts was the issue of civil liberties. First we note that the International Trade Union Confederation (ITUC) and Turkish trade unions allege continued infringement of civil liberties, such as prohibitions of demonstrations and press statements of Turkish trade unions, arrests of union trade members and officials, and withdrawal of passports of dismissed trade union executives.

We note that in the Committee of Experts’ observation the Government refers to situations where the requirements where the state of emergency were persistently ignored or disrespected, where unlawful activities took place. For example, open-air activities in violation of Law No. 2911, or where civil servants were involved in politics in violation of their status. The Government also indicates that domestic administrative or judicial methods of remedy are available against all acts of the administration. We thank the information that the Government provided today in this respect as it provides some additional context to be considered.

The Employers’ group believes that effective respect for civil liberties of workers and employers is the very basis for the exercise of freedom of association under the Convention. The Employers therefore encourage the Government to give to the Administration all instructions that are necessary to ensure that violations of civil liberties, which are the basis for freedom of association protected by the Convention, will not occur in the future. The Government should also provide information of any outcomes of administrative and judicial remedial channels invoked by union members.

Turning to the second issue, the right of workers without distinction to establish and join organizations as included in Article 2 of the Convention. Moving to the second issue concerning the right of workers to establish and join organizations, we note that according to section 15 of Act No. 4688 as amended in 2012, senior public employees, magistrates and prison guards are excluded from the right to organize. In a 2015 judgment, we understand that the Constitutional Court repealed one part of this restriction, namely section 15A. As regarding the personnel of the Administrative Organization of Turkish Grand National Assembly, we understand that the other restrictions in section 15 remain in force.

It is our understanding that the Government seeks to justify these restrictions by taking the position that they are limited to those public services where disruption cannot be compensated, such as insecurity, justice and high-level civil servants.

The Employers would take this opportunity to highlight that the right to establish and join organizations under Article 2 of the Convention does not give the right to disruption or a right to strike. In other words, in our view, the Government would not be hindered by the Convention to restrict or exclude the right to strike for senior public employees, magistrates or prison guards. We have emphasized this Employers’ view on many occasions. It appears therefore that the apprehensions of the Government are therefore not justified and it should not exclude these workers or public servants from the right to organize. The Employers therefore call upon the Government to make the necessary changes to the law, in particular section 15 of Act No. 4688, to ensure that all public servants have the right to organize. Only the armed forces and the police may be exempted in accordance with the Convention.

On the third issue concerning the right of workers’ organizations to organize their activities and formulate their programme. The Committee of Experts’ observations concern in essence legal provisions that enable a suspension of strikes under certain conditions. At this moment the Employers would simply comment on this point that in their view these issues fall outside of the scope of the Convention. Also, the Government group has expressed the view, in its statement in 2015, that the right to strike is regulated at national level. This is consistent with the Employers understanding that these issues can be regulated at national level.

The Employers want to take this opportunity to register its opinion that the Committee on Freedom of Association does not have the competence to supervise compliance with the Convention. Its mandate is strictly to examine alleged infringements of principles of freedom of association and the effective recognition of the right to collective bargaining enshrined in the ILO Constitution, the Declaration of Philadelphia and as expressed by the 1970 ILO resolution.

Therefore the Employers reiterate that in the absence of any rules on industrial action in the Convention, the Government may set and apply its own rules in national law and practice to the issue of industrial action. The explanations and requests made by the Committee of Experts on this issue should be taken within that context. Moreover, we note that according to an ITUC allegation, Decree No. 5 of July 2018, enables the State Supervisory Counsel (DKK), an institution which is directly accountable to the Office of the President to investigate and audit as well as remove or change the leadership of trade unions and certain other associations. In this respect, we note that the Government explained in its report that the DKK only seeks to ensure the lawfulness, regular and efficient functioning and improvement of the administration, and that there is no intention to interfere with the internal functioning of trade unions.

We understand from the Government’s submission that the competence to dismiss or suspend trade union administrators only apply to public servants. In this regard, the Employers note that it is not for government agencies to take measures to ensure regular and efficient functioning of the administration of trade unions. That is in fact a matter that falls within the autonomy of trade unions which is protected by Article 2 of the Convention.

Any competence by the DKK, whatever the objectives are to investigate or audit trade unions or employers’ organizations other than simply requesting them to submit annual financial reports, as Mr Leemans pointed out, would not be in line with the Convention. We request that the Government provide the Committee of Experts with a copy of Decree No. 5, as well as information on its application in practice, in order to enable a proper examination of its compatibility with the Convention, particularly in respect of the right of trade unions and employers’ organizations to organize their activities without interference from government authorities.

Finally, turning to the last issue on the discussion of the dissolution of trade unions, KHK No. 667 provides that trade unions can be banned on the suggestion of a commission and approval of the Minister concerned when they are found to be in connection, communication or adherence to formations threatening national security or to terrorist organizations. According to allegations made by the Turkish trade union, the Confederation of Public Employees Trade Unions of Turkey (DISK), 19 affiliated trade unions composing 52,000 members were closed down for being in connection with a terrorist organization, Parallel State Structure. An Inquiry Commission has been established in the meantime, which is receiving complaints against the dissolution of trade unions. Contrary to its decisions, legal recourse to the administrative courts is possible. While the Government did not provide its perspective on these allegations to the Committee of Experts in 2018, it has shared some information on this issue in its presentation today. We understand that the Government has advised that the dissolution of trade unions is a matter regulated by the trade union legislation and that, under article 31 of the Trade Unions and Collective Labour Agreement Act, only the competent courts are empowered to dissolve trade unions. While we appreciate the information shared by the Government today, the Employers’ group does call upon the Government to provide this detailed information in this regard in relation to this issue and related circumstances regarding the dissolution of any trade unions in all cases to the Committee of Experts, as well as information regarding the re-establishment of trade unions as a result of decisions made by the Inquiry Commission or by the administrative courts. This information would allow a more proper and fulsome understanding of this issue. The Employers’ group thanks the Government for its submission today and we take this moment to impress upon the Government how important it is that it is encouraged to take measures to fully comply with the Convention based on the comments before you.

Employer member, Turkey – I would like to present the opinions and suggestions of Turkish employers with respect to the subject matter. Regarding the Convention, the Committee of Experts firstly takes into consideration the complaints filed by different workers’ organizations about civil liberties. Considering the observations of the Committee of Experts on this matter, we, as Turkish employers, deem it necessary to inform this Committee on certain issues.

The first issue is that the right to personal liberty and security is regulated in article 19 of the Constitution of the Republic of Turkey and that the circumstances and conditions under which the said rights might be restricted is also specified in the same article. Thus, by means of such legal measures, the creation and assurance of an environment that will enable workers and employers to exercise their rights arising from the Convention, fully and freely without being subject to violence, oppression and threat, is ensured. As Turkish employers, we believe that the realization of such an environment is a necessary condition of the Convention and Turkey’s working life ecosystem is perfectly in line with ILO standards.

The Committee of Experts’ observations about Turkey within the scope of Article 2 of the Convention focus on rendering article 15 of the Civil Servants Unions Act compatible with the Convention. As Turkish employers, we believe that all employees, except for a few exceptions, working in the public sector should enjoy the right to organize. Having few exceptions is not only the case for Turkey, it is a kind of conventional approach for the majority of the countries.

Indeed, Convention No. 151, which is another ILO Convention to which Turkey is a party, also leaves the authority to determine the extent of application for the syndicate assurances about senior level public officials, performing top secret duties, members of the armed forces and members of police forces to the national legislation of the member countries. However, persons referred to in article 15 of Act No. 4688 do not hold the status of “public employee, namely the workers working at the public sector”, but hold that of “public official” namely the civil servants. Legally, these persons are not at the status of “worker”, but at that of “public servants”. Accordingly, we have not been able to understand on what reasoning the Committee of Experts wants to compare the provision of a national law that applies to civil servants with those of a Convention that is solely devoted to workers.

As a matter of fact, given the fact that there is a specific Convention provision related to the very matter and that the provisions of the national legislation complies with this provision, making an evaluation under Article 2 of Convention No. 87 is inappropriate. While Convention No. 87 means that workers/public servants from these groups can set up and join their own autonomous organizations, it does not mean that workers/public servants from these groups or their organizations have a right to collective bargaining or even a right to strike under this Convention.

The Committee of Experts’ observations about Turkey, under Article 3 of the Convention, is mainly based on strike postponements and their execution. However, the Committee of Experts makes an observation on a matter on which it is not authorized. In fact, the Convention does not mention about the word strike or right to strike; nor does it guarantee that right by any means. Hence, our Employers’ group also is of the opinion that the Committee of Experts is not authorized to comment on the provisions about the postponement or the limitation of the right to strike acknowledged by national legislation. Namely, the power to interpret ILO Conventions belongs solely to the International Court of Justice.

In line with the Government group position, the right to strike is regulated at national law in Turkey. There exist laws in Turkey that determine the scope of the right to strike in line with the national industrial relations system. These laws have been adopted in a regular and democratic process. The application of these laws can be challenged before the Constitutional Court, which has been done on a number of occasions.

Another point regarding the Committee of Experts’ observations on Turkey about Article 3 of the Convention is the claim that the State Supervisory Council’s power of auditing and investigating unions does not comply with the provisions of the Convention. The power of the State to conduct administrative and financial inspection of the employers’ and workers’ organizations provided for in article 52 of the Constitution of the Republic of Turkey was repealed by Article 3 of Act No. 4121. In parallel to this amendment, article 29, Unions and Collective Labour Agreement Act No. 6356, stipulates that the supervision of the unions shall be conducted by their own supervisory bodies and the financial audit shall be done by certified public accountants.

Thus, article 108, Constitution of Turkey, regulates the State Supervisory Council. It carries out its examinations with the purpose of ensuring the lawfulness, regular and efficient functioning and improvement of the administration. The claim that the State Supervisory Council has the power to dismiss or change the trade union administrations, which is among the allegations of the ITUC, is baseless, since the power of dismissal or suspension is an arrangement intended only for the public servants. In this context, Presidential Decree No. 5 does not impose any regulation outside the framework laid down in the Constitution in relation to the freedom of association and the right to organize.

Another point regarding the Committee of Experts’ observations on Turkey about Article 4 of the Convention is the dissolution of trade unions.

As it will be recalled, not long ago, an attempt to overthrow the Turkish Government was under way; 251 were killed, and more than 2,000 people wounded as a result of the attempted coup. The Turkish employers condemn any terrorist attack or unconstitutional effort to seize power and overthrow democracy. Namely, after the attempted coup of 15 July 2016, an Inquiry Commission has been established that receives applications against the dissolution of trade unions during the state of emergency and whose decisions are appealable before administrative courts of Ankara. The grounds for the dissolution of trade unions can be examined by the administrative courts in Turkey when applications are made, which is a due and effective recourse by law.

Finally, I want to emphasize that the Turkish employers give the utmost priority to the ILO’s supervisory system. In our view, the credibility and transparency must be respected within the Committee with a view to enable a high level of compliance to the international labour standards.

Worker member, Turkey – Workers right to join a union with their free will is under the guarantee of article 51 of our Constitution and the 19th article of the Trade Unions and Collective Agreement Act No. 6356.

The 31st article of the Trade Union Act 2821 which was in force before Act No. 6356 was foreseeing that employing a worker cannot be linked to a specific union membership. Imprisonment and a judicial fine was foreseen in case of the violation of this provision. However, new Act No. 6356 foresees only a judicial fine. In fact, article 118 of the Turkish Penal Code also foresees imprisonment in case of the workers enforcement to join or resign from their union. But since it is up to two years, the imprisonment decision may result with the suspension of the pronouncement of the judgment. Therefore, the sanctions in case of the violations of organizing rights or current legislation should be strengthened. The report of the Committee of Experts includes a variety of situations in which the certificate of competence to bargain collectively may be withdrawn by the authorities. Particularly, the designation of industrial branches or the competencies and long trial periods create concerns.

We acknowledge the improvements made in legislation since we have been discussing the case at the Committee. However, we still face the dismissals because of joining unions particularly in the private sector. Unions and workers solving all procedural problems are this time facing the pressure applied by the employers. They are forced to resign from their unions or join unions designated by their employers.

We need legal sanctions to protect the organizing rights of workers and providing them the required circumstances free from any pressure or threats necessitates a mentality change towards an understanding of tackling problems with social dialogue.

In accordance with our prior requests and case discussions at the Committee, thresholds were negotiated with the Government and the national threshold was decreased from 10 to 1 per cent. This was a result of the consensus achieved after the negotiations among the parties. This was also shared in details with the previous missions from the Office.

As a result of this decrease at the national threshold and the e-state membership application replacing the prior high-cost notary procedure, progress has been achieved in regard to unionization rates. However, as mentioned in the Committee of Experts report, we previously indicated that it is not always easy to reach the 50 per cent workplace and 40 per cent enterprise threshold levels in the environment of increasing flexible employment systems noting that we are in favour of “One competent union at one workplace” principle.

As mentioned in the Committee of Experts report, Act No. 6356 provides that strikes can be postponed for 60 days with a decree due to the reason of public health or national security. The Government should ensure that this provision is not abused. Approximately 800,000 subcontracting workers are employed at the related workplaces through Decree No. 696 in 2018. The Government should also ensure that those workers transferred from subcontracting companies are fully benefiting from their collective bargaining and organizing rights.

As it is indicated in the report of the Committee of Experts, there was a situation of acute crises in Turkey after the failed coup attempt. The FETÖ terrorist organization behind the coup aimed to suppress all democratic and constitutional institutions and overthrow the Turkish Government and it is responsible for the deaths of 251 Turkish citizens including our six members and injury of more than 2,300 civilians. Regarding this issue, the administrative and judicial channels should continue to be open and current commissions should rapidly finalize their work.

As one of the countries benefiting very much from ILO and its tripartite structure we would like the Government to find solutions to all these issues in close consultation and cooperation with the social partners.

Another Worker member, Turkey – I would like to concentrate on public workers’ issues. Turkey has approved Convention No. 87 and many other Conventions in the early 1990s. Our Confederation Turkiye Kamu-Sen (Turkish Public Workers’ Trade Unions Confederation) was established in 1992 when there was not any legislative base including constitutional for civil servants to be a member of any union. Because, at the mentioned time, public workers trade union rights were banned for a public worker; to be a member of a trade union was banned until 2001 when the first Public Workers Law Act No. 4688 was adopted.

From 2001 and 2012, public workers trade unions acted as an ordinary organization rather than a trade union. This was because of the limited rights regulated in the Constitution and in the law. In 2010, some articles of the Constitution including the articles related to trade union issues were amended in a referendum and depending on those amendments some articles of the public workers trade union law was changed two years after that mentioned referendum.

Of course public workers’ trade unions gained some improvements in public workers trade unionism but there are still many limitations for public workers in terms of freedom of association in relation with the Convention in practice. In spite of having this same international and national legislation basis there are still 12 handicaps for public workers trade union rights comparing with the labour trade unions rights.

In this time period Turkey had faced a large amount of immigrants and terrorist attempts. The most important one was the failed coup attempt prevented in seven hours by the security forces, Government, trade unions, many other democratic institutions and a very large part of society. The mentioned coup attempt was organised by the FETÖ terrorist group organization. All those attempts were targeting to destroy Turkey’s economic and social stability.

Especially after 15 July 2016, many public workers were investigated and big amounts of them were dismissed. In that extraordinary time period, black and white mixed for a while. Today everything is getting normalized in Turkey and an Inquiry Committee consisting of seven members coming from mostly high courts was established to examine this issue. They should work hard and solve this problem in a short time for the people who may be innocent.

Finally, Turkey was discussed more than ten times in this Committee for different reasons since 2003. Last some years it was received high-level mission of the ILO. Some years Turkey was supposed to submit some recovery report to the Committee.

These days we are more hopeful because we have a new and a very young Minister of Labour. The Minister and her team know the problems and they are aware of the matters. In legislative base, we have all types of social dialogue mechanisms which need to be implemented in practice. The ILO is setting a Centenary vision for decent and peaceful work life. So as Turkey, we have to put the same vision for our next future to solve all problems including freedom of association.

Government member, Romania – I am speaking on behalf of the European Union and its Member States. The European Free Trade Association (EFTA) country Norway, member of the European Economic Area, aligns itself with this statement. We are committed to the promotion of universal ratification and implementation of the eight fundamental Conventions as part of our Strategic Framework on Human Rights and we attach the highest importance to freedom of association and the right to collective bargaining. Compliance with ILO Conventions Nos 87 and 98 is essential in this respect. Turkey is a key partner for the European Union and a candidate country. During the last EU–Turkey Association Council held in March 2019 in Brussels, the EU reaffirmed the importance of the relations between the EU and Turkey. The EU and its Member States immediately and strongly condemned the 15 July 2016 coup attempt. However, three years later, and despite the lifting of the state of emergency, we remain concerned over the continuing and deeply worrying situation in the areas of fundamental rights and rule of law, and the pressure faced by civil society, notably in the face of widespread arrests, and recurrent bans on demonstrations and other types of gatherings. We also underline the importance of ensuring that the Inquiry Commission on the State of Emergency Measures represents an effective remedy for those unjustly affected by the broad scale and collective nature of the measures taken in the aftermath of the coup attempt. With regard to the present case before us, which relates to the Convention on freedom of association and collective bargaining, we would like to stress that an environment conductive to social dialogue and trust between employers, workers and governments is essential for social and economic stability. We express concern over recent arrests of union members and officials during protests (including against working and living conditions in the new Istanbul airport site construction), as well as the withdrawal of passports of trade union executives and other restrictions to civil liberties such as the prohibition of demonstrations and press statements. We understand that trials are still under way and hope that the ruling of the courts will be based on the rule of law and respect of Conventions Nos 87 and 98 that Turkey has ratified. Workers should have the right to unionize and join the organizations of their own choosing, including in the public sector. We duly take note of the allegations from the KESK that restrictions still impact one in six civil servants in Turkey. The Committee of Experts in previous comments had already requested the Government to review section 15 of Act No. 4688 as amended. We therefore call on the Government to take the necessary measures to amend this law so as to lift the restrictions on the right to unionize which are not in conformity with the Convention and ensure that all civil servants, including those working in the justice and security sectors, as well as high-level civil servants, have the right to form and join trade unions. We also highlight that workers should be free to join the trade unions of their own choosing and that they should not be subject to any pressure from their employer in this respect. Moreover, government authorities should not interfere in the programme and organization of trade unions. According to the Committee of Experts report, the State Supervisory Council – an institution directly accountable to the office of the President – has been attributed with very wide powers, such as investigating and ensuring audits of trade union and professional organization, at any given time. According to the ITUC, this Council has also the power to remove their management. The Committee of Experts report recalls that these powers should not go beyond requesting the submission of annual financial reports and in any case not interfere with the internal functioning of the unions, otherwise it would be incompatible with the Convention. We would therefore like to request further information on the role and activities carried out by the State Supervisory Council, the investigations already undertaken under its auspices and their outcomes. We also express our concern that section 63 of Act No. 6356 and KHK No. 678 are applied in a manner that unduly infringed with the right of workers organizations to organize their activities free from government interference. The Committee of Experts recalls that a series of strike suspensions took place based on these texts and despite the fact that they had been ruled as unconstitutional by the Constitutional Court. We would like to request more information from the Government on the application of these two laws. Finally, we would like to highlight the very dire and uncertain situation of a large number of trade union members dismissed in the public sector as well as trade unions closed down in the coup attempt aftermath. It is crucial to ensure that the Inquiry Commission is accessible to all organizations and all trade union members that desire their review and that the Commission, and the administrative courts that review its decisions on appeal, carefully examine the grounds for the dissolution of trade unions and dismissals. We would be interested in having more information on the work of this Commission and in particular the number of applications submitted by the dissolved trade unions, the number of cases considered by the Commission and the outcome of their examination. Regarding trade unionists dismissed in the public sector, we are concerned by the large backlog of unsolved cases for those affected by measures under the state of emergency and a very low level of reinstatements (7.5 per cent as of May 2019). We urge the Government of Turkey to swiftly take the necessary steps to ensure a climate free from violence, discrimination, pressure or threats so that all workers and employers are able to exercise their rights under the Convention in the country. The EU and its Member States will continue to cooperate with Turkey and closely monitor the situation.

Government member, Qatar – The Turkish Constitution guarantees equality between all citizens before the law without any discrimination on the basis of language, race, skin colour, confession, etc. The Government has taken measures following the attempted coup. To our mind, these provisions were not intended, they were not against the trade unions, they were simply measures against those who had prepared that military coup.

We have noted the number of unions has increased over recent years between 2013 and 2019. In fact the number of unions has tripled. That shows clearly that the Turkish Government has created a climate which is conductive to unions which guarantees and protects the rights of their members. What is more, the Turkish Constitution has recognized all fundamental freedoms, including the freedom to organize.

Our country considers that Turkey is striving for social justice as required by our Organization. So we would ask the Committee to evaluate the case of Turkey bearing in mind what I have just set out. We support the statement by Turkey on this and we would ask the Committee to take into account this statement of the Government of Turkey when it comes to its conclusions.

Observer, International Trade Union Confederation (ITUC) – I would like to express the wish that our meetings will provide solutions to the problems faced by workers, and for that reason I will give a general overview of the developments that have taken place in the context of the Convention.

The Government openly supports affiliated trade unions and confederations which are in the same political line as its own. Although this runs counter to ILO standards, the Government adopts a discriminatory approach with respect to confederations and trade unions. Trade union discrimination extends the granting of presence in the collective bargaining system and appointments in the public sector, for instance during promotion procedures. Decisions are taken not on the basis of the knowledge and skills of employees in the public sector, but the union to which they are affiliated.

The new measures that came into force during the state of emergency have become permanent and, as a result, the right to organize has been dealt a serious blow. Pursuant to the executive decrees promulgated during the state of emergency, approximately 130,000 public sector workers were dismissed without any investigation or judicial procedure, and without any possibility of defence. At present, 4,510 public-sector workers who are members of trade unions affiliated to the funds are still dismissed from their posts. The penality of dismissal was imposed during the state of emergency purely on the basis of the opinion of public-sector managers (i.e. administrative managers, most of whom are appointed by the political authorities), anonymous denunciations, and a system of personal files. The remedies for challenging this injustice have been blocked for employees dismissed from the public service.

A commission entitled the “Inquiry Commission” was established about six months after the declaration of the state of emergency and began functioning 13 months later. All members of this seven-person commission were appointed by the Government, and the President has been authorized to remove them from office. In these circumstances, it is impossible to expect the commission to make fair decisions. As a result, the Commission has ruled on approximately 70,406 claims out of a total of 126,120 claims filed to date. For 65,156 of claimants, or 92.5 per cent, this resulted in the dismissal of their claims. Only 7.4 per cent, or a total of 5,250 public sector employees, have been reinstated in their duties.

So let me highlight these two points: the number of public sector workers prohibited from joining unions is increasing and the ban on strikes is continuing. In Turkey, legal barriers to public sector workers joining trade unions have increased. One in nine public sector employees is prevented by law from joining a trade union. This is also explained in detail in the report of the Committee of Experts. Despite this, the prohibition on strikes by public sector workers in Turkey is still in force, and moreover, repression against the Confederation of Public Employees’ Trade Unions (KESK) has increased. With regard to trade union rights and freedom of association, it should be noted that any collective demonstrations and press releases we wish to issue are obstructed for reasons that have no legal basis.

Government member, Ukraine – It is widely recognized that Convention No. 87 is a vital instrument of the International Labour Organization, a fundamental building block for tripartism, collective bargaining and social dialogue without which freedom of association and equality at work would not be possible. Ukraine is a State party of the Convention since 1956 and fully acknowledges and highly values the important role played by this indispensable international document as an effective mechanism for ensuring the principles of allowing and enabling workers and employers to exercise freely their rights to organize. Despite its significance, the Convention unfortunately remains one of the least widely ratified of all the ILO’s fundamental Conventions. The recurrent report of social dialogue, which was discussed during last year’s International Labour Conference session, as well as the recurrent report of the Committee for Fundamental Principles and Rights at Work presented in 2017, both strongly emphasize the need to further promote the universalization and proper adherence to this essential treaty. Ukraine therefore recognizes the efforts being undertaken by our neighbour, Turkey, to comply with the Convention, in particular those related to the adoption of relevant national trade union legislation, and hopes for further fruitful cooperation between Turkey and the ILO in all necessary social and labour fields, including the strengthening of social dialogue on national and international levels.

Worker member, Belgium – Just the day before yesterday, we were shown a video recalling the importance of the Committee on the Application of Standards, and highlights this Committee and with it the whole International Labour Organization has seen throughout its 100 years of existence. Among these highlights was the much appreciated contribution of the ILO to the establishment and recognition of a truly independent self-governing trade union in Poland.

- Turkey has ratified the Convention in 1993. The text of this Convention is clear: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”

- “Workers’ and employers’ organisations shall have the right to elect their representatives in full freedom.”

- “The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”

- “The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.”

Notwithstanding the clarity of these phrases, to our regret, in July 2018, Turkey adopted Presidential Decree No. 5. This Decree establishes the State Supervisory Council, which has the authority to investigate and audit trade unions, professional associations, foundations and associations at any given time. It even has discretion to remove or change the leadership of trade unions. This is one of the most blatant and clear violations of the Convention, one of the fundamental Conventions of the ILO, covering one of the fundamental principles and rights at work: namely the freedom of association and the protection of the right to organize. It is the role of our Committee to guarantee the right application of the standards of the ILO.

In this case, the conclusion is clear; Turkey needs to ensure that Turkish trade unions can be truly independent and self-governing. The ability by the Government to remove or change the leadership of trade unions not only restricts the functioning of truly independent, self-governing trade unions, but simply makes it impossible to function as a truly independent, self-governing trade union. To be clear; this goes beyond trade unions. The possibility to remove or change the leadership of employers’ organizations would amount to an even graver violation of the Convention.

To conclude this intervention, we refer to the extensive compilation of decisions of the Committee on Freedom of Association. Chapter 7 of the Compilation published last year, covers in depth the right of organizations to elect their representatives in full freedom. It goes without saying that removals constitute serious infringements of the free exercise of trade union rights and are not compatible with the principle of freedom of association, be it for private sector or public sector employees.

Government member, Morocco – I would like to begin by thanking the Government of Turkey for the information it has provided in response to the various comments and observations made on this matter by the Committee of Experts.

Indeed, the comments of the Committee of Experts cover a number of subjects directly related to the implementation of the Convention, in particular regarding the rights of public sector workers to establish or join organizations of their choosing, the monitoring of the internal functioning of trade unions, and the dissolution of trade unions.

The representative of Turkey provided important explanations and clarifications while pointing out that Turkey experienced a very particular situation in 2016 when it faced a threat to its national security.

According to his explanations, and particularly the fact that fundamental rights and freedoms are protected by the Constitution, that Turkish public sector workers have the right to organize, and that restrictions are limited to senior officials in certain areas, such as security and justice, workers’ organizations have the right to freely organize their activities as long as they comply with national legislation. All unions have the right to challenge dissolution decisions through the Inquiry Commission.

In this regard, we support the efforts made by the Government of Turkey and invite it to redouble its efforts to bring its national law and practice into conformity with the provisions and principles of Convention No. 87.

Observer, Education International (EI) – Under the heading of the Civil Liberties, a number of infringements were listed. As a trade union member, from the field of education, I have to express that dismissals, suspensions, deportations, transfer from the workplace without the will of the worker are the practices that the Turkish Trade Union members have been facing for a very long time and all these are stated in the Committee of Experts report.

The Government, when it is asked, usually defines itself by defining these trade union members acting contrary to the legislations. However in reality the practices of these trade union members are not investigated or punished since they are acting against the legislation. These acts of the Government are the result of the will to oppress the trade unions which are accepted as dissidents. Also, the prohibitions of the demonstrations, brass meetings, trade union members’ gatherings and the arrests, dismissals and the court cases that the trade union members and the trade union officials are facing daily, as mentioned in the reports of the Committee of Experts, make it impossible for the Turkish trade unionists to carry on an independent trade union activity. As an example, the General Secretary of Egitim Sen was arrested on 4 May, last month, because of attending a press meeting. Because of this arrest, he was not allowed to travel abroad because of a travel ban and passport ban put by the local administrators. He was supposed to be here in the ILO Conference, but he could not. Now, is it possible to talk about freedom of association and right to organizing in this kind of a situation? Discrimination among the trade unions because of being politically close to the Government or not is another crucial problem. Using the power and the tools of the State as an advantage for pro-government trade unions is another unacceptable act. How can a trade union member enjoy the right of freedom of association and enjoy the right to organize under these conditions. These rights can only be fulfilled when all these rights are protected either by the domestic or the international laws and Conventions.

Trade union rights and freedoms are under, or must be under, the protection of international Conventions, including ILO Conventions and domestic laws. Article 90 of the Turkish Constitution considers duly rectified international Conventions superior to domestic legislation. However, it is clear that the Government does not obey these obligations in this regard. As a result in this case, it is clear from the reports and interventions that the Convention is heavily violated and ignored.

Government member, Cuba – My delegation wishes to reaffirm the importance of continuing to promote tripartism and social dialogue in each country to resolve differences that arise in the world of work and of developing greater protection for workers’ rights, which must be a constant objective for us all. We accordingly recognize the progress made by the Government of Turkey, while encouraging it to pursue the efforts made for this purpose.

We also emphasize the need to continue promoting in the framework of the ILO measures and programmes that develop technical assistance to countries and assist governments to take action to resolve the challenges that they are facing in the world of work, in an environment of cooperation and exchange.

Observer, International Transport Workers’ Federation (ITF) – When we consider individual cases of civil rights violations against trade unionists in Turkey, it is always important to look at the wider context because what we usually find is a catalogue of violations of the Convention in the lead up to a Government-led crack down on legitimate trade union activities.

Allow me to share one example involving the ITF-affiliated TÜMTIS union. When the workers of a large cargo company in the Province of Gaziantep joined TÜMTIS in late 2017, the employer tried to coerce the workers to resign from the union. After the workers refused, the company dismissed nine workers and violently removed them from the premises. The incapacity reports issued to the workers by their health services demonstrate the level of violence metered out on the workers.

When Kenan Ozturk, the TÜMTIS President, and four other union officials visited the unfairly dismissed workers and held a press conference, little did they know that the Public Prosecutor was already drafting an indictment against them. Mr Ostruck and his fellow officials were charged with breaching the now infamous Law 2911 on Assemblies and Demonstrations. The Prosecutor is asking for jail terms between 18 months and three years, all because these officials have the audacity to hold a press conference and speak to their members.

The second hearing in this case will take place in four weeks’ time, on 9 July. This case against TÜMTIS and its leaders is not an isolated case. This Committee is familiar with the cases referred to in the Committee on Freedom of Association Case No. 3098. Indeed, TÜMTIS leader, Nurettin Kilicdogan, languishes in prison as I make this statement. Such levels of judicial harassment creates an atmosphere of intimidation and fear, prejudicial to the development of trade union activities.

I would also like to report to this Committee that another strike has been postponed under section 631 of Act No. 6356 since the Committee of Experts issued their observations. A strike in Izmir, called by the ITF-affiliated Railway Union, was officially suspended by Presidential Decree on 8 January 2019. The Decree signed by President Erdogan himself confirms that the strike was postponed because it was, I quote, “disruptive to urban public transport services”. This was the first time article 631 has been invoked in the inland transport sector.

To quote the President of the Izmir Bar Association, “this decision is a blow to labour rights, democracy and the right to strike. It is devoid of any legal basis and is contrary to the constitution, national laws and international conventions” unquote. For transport workers and their unions in Turkey, the situation is getting desperate. It is our sincere hope that sooner rather than later workers and unions in the transport sector – and indeed all workers and unions – can exercise their full trade union rights in freedom.

Government member, Azerbaijan – We believe this important Committee should serve as the forum for constructive discussions aimed at improving compliance with international labour standards. We appreciate the information provided by the Government of Turkey and welcome its willingness and commitment to constructively engage and cooperate with the ILO. In particular, we welcome the readiness of the Government of Turkey to provide additional information to the Committee of Experts which would allow it to better evaluate the situation in Turkey.

We encourage the Government of Turkey to continue pursuing its efforts to amend the relevant laws in consultation with the relevant stakeholders, especially the social partners, and to continue providing information of further progress made in this regard. We call on the ILO and its member States to support the Government of Turkey and to provide any technical assistance that it might seek in this regard.

Worker member, Germany – In 1970, the International Labour Conference adopted by a broad majority the resolution concerning trade union rights and their relation to civil liberties. The resolution points out that “rights conferred upon workers’ and employers’ organizations must be based on respect for those civil liberties, which have been enunciated in particular in the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and that the absence of these civil liberties removes all meaning from the concept of trade union rights.”

Civil liberties form the grounds on which all rights guaranteed by the Convention are to be exercised. We consider freedom of association to be one of the cornerstones of the ILO. I am no engineer but even I know a cornerstone must be built on solid ground. However, when we look at the situation in Turkey we note with great concern that this ground is very brittle. In its 2019 report on Turkey, the European Commission noted that there “has been serious backsliding in the areas of freedom of expression, assembly, and association and in procedural and property rights.” “Trade union rights continue to be under severe pressure.”

In November 2018, for instance, the Turkish trade union leader Abdullah Karacan was shot while meeting workers at a tyre factory. Two other union representatives were wounded in this incident. Arzu Çerkezoglu, president of the Turkish care-worker union and of the Turkish trade union confederation DISK, currently face trial for three years’ imprisonment, just for having taken part in a public panel debate entitled “Quo vadis Turkey”. On similarly unsubstantiated grounds the exercise of freedom of speech is oppressed on a constant basis by banning press statements or demonstrations by unions. The right to freedom of assembly is also extremely limited, with rallies and demonstrations regularly banned and protestors subject to disproportionate police responses and detainment.

The state of emergency has been used as carte blanche for the infringement of civil liberties and hence the grounds of trade union rights. But even after July 2018, many of the emergency laws are still in place and with them the climate of intimidation for trade unionists.

We therefore call on the Turkish Government to repeal legislation and decrees implemented under the state of emergency and to take immediate steps to bring into line both its law and practice with its obligations under Convention No. 87 and under the international human rights law.

Government member, Algeria – Algeria thanks the Government of Turkey for its substantive report on the situation of trade union rights and the right to strike and supports all of its comments.

We also commend the efforts made by the Government of Turkey, and particularly its readiness to cooperate with the ILO. Algeria welcomes the opening of trade union rights to temporary workers employed by private employment agencies. We also welcome the progress achieved in the introduction of judicial remedies against violations of trade union freedoms and we remain determined to support Turkey in its efforts to reinforce the rule of law, protect and promote rights and freedoms more effectively, strengthen the independence of the judiciary and facilitate access to justice.

Algeria shares many priorities with the Republic of Turkey in relation to freedom of association, and Algeria reiterates its full support for the limitations placed on the right to strike in order to preserve labour peace in essential services, where they are defined as services the interruption of which would endanger the life, safety or health of the whole or part of the population, or where they are justified by risks to public order. This is the case, for example, for magistrates and prison staff.

Observer, Public Services International (PSI) – I shall limit myself to three points. Firstly, tens of thousands of workers in the public sector have been arbitrarily dismissed under decrees which were brought in during the state of emergency; 796 members of the Trade Union of Employees in Public Health and Social Services (SES) were dismissed from public administration and only 17 of them were reinstated. The Inquiry Commission on the State of Emergency Measures was established by the Government. All the officials dismissed have to address this Committee before they can turn to the courts. So far, 117 application cases of SES members were examined by the Commission; while 42 of these applications were accepted and achieved a positive ruling, 58 others were rejected.

Secondly, a new measure has been introduced to the recruitment procedure of public officers. It is called security vetting. Those who do not pass the vetting are not recruited for public institutions. The scope of the vetting is such that it is impossible to know who will be ruled out under and by which criteria. The application of this procedure is illegal and arbitrary; that is, the right of citizens to employment is violated through unfair vetting. People are considered inappropriate for public posts depending upon their ethnic religious origin, their political opinions or their choice of trade union.

Thirdly, in addition to the security vetting, interviews are common currency for recruitment in the public sector. These interviews are not intended to determine objectively compatibility of professional skills with the requirements of the post. The interview has now become a mechanism which makes it possible to ascertain the loyalty of each for those who might be recruited as to whether they are appropriate; no trace of these interviews is left. It is completely arbitrary, thus those who gain a given mark during the exam have sometimes considered to have failed on the basis of the interview. It is very difficult thus for those employed in this sphere and these things are used as a medium for subordination in the absence of job security. No worker in the public sector can exercise a freedom of expression, his right to take part in political life, his right to join a trade union, etc. This effects negatively the quality of our public services. Our struggle under these conditions as SES Union is conducted in various ways. The public authorities hinder custom trade union works such as the distributing of pamphlets, opening of information stands or other matters relating to our work and holding organizations and posting of posters and things like this are subject to particular checks and the employers decide what can appear. All of these things show that the right to organizing freedom of association are violated in favour of and by the authorities. In spite of these difficult and ethnic challenges in our sector we continue to fight with determination for labour and trade union rights.

Government member, Kazakhstan – We welcome Turkish engagement with the ILO. We wish to stress that eight years ago the Committee discussed the situation in Turkey with regard to the Convention. Immediately after their discussion, Turkey enacted in 2012 a new trade union legislation in conformity with the constitutional changes and the ILO Conventions and demanded public servants trade unions law to recognize collective bargaining rights to civil servants.

We believe that Turkey will work with ILO and social partners in the same spirit of constructive cooperation, regarding the ILO and the international labour standards with the highest esteem and comply with reporting obligations and the ratified ILO Conventions.

Worker member, United Kingdom – In 2018, the British Public Sector Union (UNISON) sent a delegation to speak to their Turkish colleagues. They reported a grim picture of a country where workers’ rights and the rule of law have been severely diminished despite the official end of the state of emergency. The UNISON report, distributed among their 1.3 million members, highlights systematic abuses, including the arrest of trade union leaders, the banning of peaceful demonstrations and the prohibition of strike action on spurious national security and public health grounds. One strike at a glass manufacturing company was denied because a shortage of glass might lead to a shortage of medicines if they happen to need glass containers. This thin and tortuous logic was used to turn a manufacturing strike into one with de facto essential services status in clear contravention of ILO definitions, as well as of article 51 of the Turkish Constitution. As you have heard, this concern for health and safety was not evident at the construction of Istanbul’s third airport, where official figures state that in excess of 50 workers have so far died on-site. When the workers took strike action to demand that their terrible working conditions were remedied, 600 were arrested. We are unaware of any prosecution of those responsible for the deaths of more than 50 workers.

In 2018, 132 Turkish workers were dismissed from a cosmetics factory. After demonstrating tenaciously for 300 days, some were reinstated but only on condition that they forwent their union membership. Such behaviour must be dealt with by the State if it is to meet its international obligations, but no action has been reported. Our colleagues also raised concerns about the treatment of their fellow public sector workers. In particular it is depressing to see the same request in the Committee of Experts’ report that the Government of Turkey should review section 15 of Act No. 4688. The wording of the Convention could not be clearer, that workers should be allowed to establish and join organizations of their own choosing. Their status as senior civil servants or prison officers should have no bearing on their right to be independent trade unionists, as my colleagues from the British First Division Association of the highest rank of civil servants or the British Prison Officers’ Association would attest.

Government member, Pakistan – My delegation would like to thank the Turkish Government for the detailed response they have provided. We also welcome the Turkish Government’s willingness to engage in dialogue and provide more information. We take note of Turkey’s efforts to work closely with the ILO in several fields, including the strengthening of social dialogue, at the national and international level. We encourage them to continue to undertake further steps in this regard. Observations of the Committee of Experts about Turkey contain many points where the Committee of Experts need further information and clarification in the form of relevant legislations and court rulings to better evaluate the situation. Turkey has taken a number of steps since its last evaluation in 2011, when the Committee discussed this case. It has also demonstrated commitment and willingness to engage with the Committee to make improvements on the ground. For these reasons, we join the request that the Committee takes into account all the efforts made by Turkey, and allow more time to the Committee of Experts to adequately examine the information provided by Turkey.

Worker member, Netherlands – It is with utmost concern that the Dutch Trade Union FNV observes a continuous violation of the Convention that has been ratified by Turkey in 1993. Although the state of emergency was lifted on 19 July 2018, there are still practices that imply a continuation, such as for instance martial law in some provinces, which in many cases affects trade union activities.

In the Netherlands we have a large amount of members who have intensive contact and cooperation with their colleagues of the trade unions in Turkey. They have observed a dramatic increase in the anti-union policies since the coup attempt, resulting in repressive policies with far-reaching effect for the careers and for the personal life of these workers.

Amnesty International was outlining the arrests of workers protesting the conditions of a new airport construction site near Istanbul in 2018, saying: “By detaining and prosecuting these workers who were simply calling for dignified and safe working conditions, the Turkish authorities are sending out a message that anyone who attempts to stand up for their rights will be punished.” As a result, anti-union practices clearly exist, of which even multinational companies are not exempt, as in the case of the female workers earlier mentioned by my colleague at a Turkish subsidiary of a cosmetics company, where 132 female workers had been unfairly dismissed for belonging to a trade union.

Also it is unprecedented that so many public officers were suspended and dismissed from their offices in Turkey since the military coup attempt on 15 July 2016. According to the UN High Commissioner for Human Rights there are approximately 150,000 dismissed and around 40,000 suspended public officers in Turkey. There is a criminalization and a defamation policy towards public officers in general and specifically against members of the independent trade union KESK.

As a clear example of anti-union policies and stigmatization of trade union members and activists we mention the case of the 25 KESK women members who were charged with membership of an armed terrorist organization, and secondly the 72 KESK members (women and men) including the former KESK President, Mr Lami Özgen, the current Co-President, Mr Mehmet Bozgeyik, and several other executive committee members, all charged with membership of an armed terrorist organization.

So we strongly condemn the current practice resulting from the use of the former state of emergency as an excuse for trade union members’ dismissals for the usage of their trade union rights and freedoms.

Worker member, Ukraine – I want to draw the Committee’s attention to the attack against construction workers at the construction site at the new Istanbul airport who have been struggling for fundamental labour and human rights, including the right to form a trade union and for collective action according to the Convention.

At the end of 2018, from 26,000 workers at the site of the new Istanbul airport close to 22,000 were subcontract workers employed by 281 companies. The main contractor was Airport Construction Ordinary Partnership Joint Stock Company, IGA. In addition, according to Building and Wood Workers International (BWI), these subcontracted workers were facing very dire circumstances ranging from low wages, delayed payment of wages, unsafe working conditions, poor and substandard accommodation facilities, harassment and a series of human rights violations.

At the height of the crisis, serious confrontation took place resulting in the arrest of 24 workers. Turkish unions including Yol-Is have been actively campaigning for the rights of subcontracted workers and in the construction sector, including the right to join trade unions and negotiate collective bargaining agreements.

We hope the complaints and concerns that workers have rights, we will its resolution, and a substantive long-term permanent solution must be put in place to ensure that fundamental labour and human rights, including freedom of association for subcontract workers in the Istanbul new airport and throughout Turkey, are guaranteed.

Government representative – We have listened carefully to the distinguished spokespersons of the Employers’ and the Workers’ groups, as well as the other speakers who participated in the discussion. We attach great importance to the work of this Committee and regard it as a platform for constructive tripartite dialogue. However, we sometimes observe with regret that it is also used for political purposes to try to score points rather than to engage in meaningful dialogue. Within the time available to me, I will try to address some issues that have been raised by the previous speakers. I will not respond to the allegations on the issues that fall outside the scope of the Convention.

First of all, I would like to comment on the claims made by KESK, saying that KESK is being targeted for dismissals and also being discriminated against. We have got the figures that show the contrary. As a matter of fact, the distribution of the number of trade union members who were dismissed by the Decree with the force of the Law during the state of emergency by the most representative public servants’ confederations is as follows: MEMUR-SEN: 10,600; TOURKiYE KAMU-SEN: 4,454; KESK: 4,269.

Although KESK always alleges that their Confederation is being targeted or discriminated against, more MEMUR-SEN members were dismissed in fact. Even KESK itself informs us in a communication submitted for the report on the Convention that out of 588 decisions given by the Inquiry Commission in KESK members’ cases, 199 of them were accepted for reinstatement. It shows a rate of acceptance for KESK members, which is one in three, high above the average rate of less than one in ten decisions.

On the allegation of unlawful arrest and harassment during the construction of the Istanbul Airport: In the Istanbul Airport construction, approximately 30,000 workers were working. I would like to inform you that around 2,000 workers held a demonstration on 14 September 2018 without fulfilling any necessary procedures under the Law on Meetings and Demonstrations. While the law enforcement forces were trying to put the situation under control, negotiations were held between the local governor and the managers and the workers involved, with no success. In spite of all efforts, the crimes of unlawful demonstration and action, violation of the right to work and the damage to property were continued. In the meantime, it was determined that people who were workers or workers’ representatives also came to the workers’ accommodation camp area to take action. Law enforcement forces intervened because of the disturbance to public order as a result of social unrest and in order to prevent its further spreading and any harm that might cause to the public and to prevent further damages to public property; 360 out of 420 people held were released without any charge by decision of the Public Prosecutor after an identity check, and 62 suspects were detained. While 25 suspects were released under the condition of judicial control, the remaining 37 suspects were charged with crimes for violation of the provision of the Law on Meetings and Demonstrations and the Penal Code.

Six of these suspects were later released by the competent court. It was determined that eight suspects were not employed by the construction company and were in the area to incite unrest. Therefore, the allegations do not reflect the reality.

Another comment about the unionization. A distinguished Worker representative says that conditions make it impossible for trade unions to operate in Turkey. But the figures and the practice tell another story. When we look at the rate of unionization in 2013, just after the new Act on the trade union and collective labour agreement came into force, the rate of unionization in the private sector was 9.21 per cent. But in January 2019, it increased to 13.86 per cent. A similar situation exists among the public servants in the public sector too. As of July 2018, the rate of unionization is 67.65 per cent while it was 47.9 per cent in 2002 after Act No. 4688 came into force. These figures alone indicate the positive developments taking place in Turkey.

A climate of union liberties and plurality of choice can also be seen from the fact that currently five trade union confederations compete in the private sector while competition for membership in the public sector is among nine public servants trade union confederations making it in total 14 confederations.

On the allegations of excessive use of force by the security forces, in previous years we also commented on this and now we are going to say similar things. The Government has taken all necessary measures to prevent the occurrence of such incidents. These incidents largely occur for two reasons. One is related to the infiltration of the illegal terror organization into marches and the demonstrations organized by trade unions. The second reason is the unnecessary insistence of some trade unions to organize such meetings in areas and squares of the cities which are not allocated for such purposes. Security forces intervened in 2 per cent of the 40,016 actions and activities that took place in 2016; 0.8 per cent out of 38,976 activities in 2017; and 0.7 per cent out of 36,925 activities in 2018. As of 7 May 2019, the intervention rate is around 0.8 per cent.

Intervention of the security forces occurs only in situations where violence and attacks against the security forces and citizens are observed and ordinary flow of life is affected unbearably. Intervention rates show that peaceful legal activities and demonstrations are taking place without any obstacles in Turkey.

In relation to the work of the Inquiry Commission, I would like to add that as an effective remedy, the Commission delivers individualized and reasoned decisions in respect of 1,200 applications in a week, as a result of speedy and extensive examination. With this rate, it can reasonably be expected to finish its job in less than one year’s time.

Worker members – We listened carefully to all interventions and I want to say that we appreciated especially the intervention on behalf of the European Union. It was clear and helpful. It is important to reiterate that many of these violations of the Convention that received the attention and observation of this Committee and of the Committee of Experts have persisted prior to 2008 and the declaration of the state of emergency. We recall that already, back in 2008, the ILO sent a high-level mission to Turkey and in 2010 a high-level bipartite mission visited the country. The visits were to provide support to the Government to comply with its obligations under the Convention. Therefore, the Government cannot justify now its failure to comply with the Convention on a state of emergency. In any case, the supervisory bodies have been consistent that the state of emergency does not empower the Government to derogate from its obligations under the Convention. The Government is expected to act in a reasonable manner when taking measures of national security and emergency.

It is in circumstances of national security and emergency when the power of the State to interfere is at its utmost that the safeguards and guarantees provided by the Convention become more relevant in order to prevent an irreversible damage to innocent individuals and workers’ organizations. Therefore, any attempt to undermine, restrict or impede these rights, without the necessary guarantees and safeguards must receive the full and serious examination of the supervisory system of the ILO.

As a result of the state of emergency, about 110,000 public servants have been expelled; about 5,600 academics have been expelled; about 22,500 workers in private education institutions have had their work permits cancelled; 19 trade unions dissolved and about 24,000 workers are undergoing various forms of disciplinary action associated with worker protests and so on.

We are concerned that out of the 42,000 decisions delivered by the Commission, only 3,000 have been accepted and 39,000 have been rejected. We are deeply concerned that independent trade union organizations have been targeted to weaken and delude their effects in the protection and advancement of the social and economic interests of their members. This is clearly a disguise process to control or weaken independent and free trade unions in Turkey.

We call on the Government to stop this despicable action. We reiterate that any law or measure that gives the authorities direct or indirect powers of control over the internal functioning of unions, preventing workers’ and employers’ organizations from realizing their organizational objectives in full freedom and independence is incompatible with the Convention.

The Government must at the very least consult the social partners to adopt a plan of action for the review of all existing legislation not in compliance with the Convention. The Government must equally consult social partners to ensure that there is an acceptable and fair judicial process to review actions taken against unions and their members and that any such process is independent and enjoys the confidence of social partners. And so we call on the Government to accept an ILO mission in order to assess progress before the next International Labour Conference.

And finally, I would also like to respond to some of the comments made by the Employers with respect to the right to strike. We would like to reiterate that our firm position has not changed: Convention No. 87 protects the right to strike. The ILO supervisory system, including the Committee of Experts, has relied upon well-established methods of interpretation to have arrived at this conclusion. It forms part of the right to freedom of association, which is a fundamental right that allows workers to ensure that they have voices – too often ignored by governments and employers – that are heard. Not only is the right to strike governed by Convention No. 87, it is also a customary international law norm as expressed by the Office of the High Commissioner for Human Rights.

With regard to the Employer’s comments with respect to the right to strike of civil servants, I would like to highlight that restrictions in this regard may only be permissible for public servants exercising authority in the name of the State and in essential services in the strict sense of the term.

The Committee on Freedom of Association has defined its own mandates in a clear and transparent manner. It consists of the examination of the compliance of national legislation and practice with the principles of freedom of association and collective bargaining as laid down in the relevant Conventions.

Employer members – I would like to begin by thanking the Government for it submissions to the Committee and note particularly the comments that were constructive recognizing that the Committee is a platform for ongoing and constructive dialogue, a statement with which we agree.

We do not have agreement in respect of the Workers’ statements regarding the appropriateness of the Committee of Experts’ observations on the right to strike and clearly there are extensive observations in this regard; as we do not have agreement that that is appropriate to guide Government action on, those are elements that cannot be included in the conclusions of this case. Clearly we have a slightly different view of this case than the Workers on some of the other aspects of this case and, as a result, we are not in a position to make a joint request for an ILO mission at this time, we do not think that that is the appropriate reaction. Rather we think it is fairly clear what falls within the appropriate follow-up action and direction that should be included in the conclusions.

We think in respect of ensuring that the Government recognizes that respect for civil liberties of workers and employers is the very basis for the exercise of freedom of association under the commitments in Convention No. 87, and therefore encourage the Government to give its governmental administration instructions that are necessary to ensure that violations of civil liberties will not occur in the future and to provide information to the Committee of Experts of any outcomes of either administrative or judicial remedial channels invoked by union members in respect of the issue of civil liberty violations.

We also think that it is appropriate, in considering this case, that the Government be called on to make the necessary changes to the law, in particular, in section 15 of Act No. 5688, to ensure that all public servants have the right to organize. And, as has been discussed, only the armed forces and police may be exempted, according to the Convention, from these obligations and these entitlements.

We would also note that, as was discussed in some of the submissions, it is important for the Government to take action that its government agencies take measures to ensure regular and efficient – that they do not interfere with the organizations and autonomy of trade unions under the perspective of ensuring regular and efficient functioning, that is outside the proper functioning other than requesting trade union organizations to submit financial statements, or reports. And, in this regard, we request the Government to provide the Committee of Experts with a copy of Decree No. 5, as well as its information on its application in practice, so that the Committee of Experts can conduct a proper examination in respect of this Decree. And, in particular, on this question of both the right of trade unions and employers’ organizations to organize their activities without interference from public authorities.

We also, on the issue of the dissolution of trade unions in the allegations in that regard, we call upon the Government to provide detailed information on the grounds and related circumstances for dissolution in all cases, as well as information on the re-establishment of trade unions as a result of decisions made by the Inquiry Commission or by the administrative courts.

So, in closing, we find the information that was submitted by the Government to be helpful today. We would though encourage the Government to submit its 2019 report with this detailed information as it has advised it would do and provide copies of the documents requested by the Committee of Experts together with the 2019 report, so that these issues in particular can be further analysed.

We certainly call on the Government to do this in a constructive way and to continue this constructive dialogue.

Conclusions of the Committee

The Committee took note of the information provided by the Government representative and the discussion that followed.

The Committee recalled that the respect for civil liberties was an essential prerequisite for freedom of association. The Committee noted with concern the allegations of restrictions placed on workers’ organizations to form, join and function.

Taking into account the discussion, the Committee calls on the Government to:

- take all appropriate measure to guarantee that irrespective of trade union affiliation, the right to freedom of association can be exercised in normal conditions with respect for civil liberties and in a climate free of violence, pressure and threats;

- ensure that normal, judicial procedure and due process are guaranteed to workers’ and employers’ organizations and their members;

- review Act No. 4688, in consultation with the most representative workers’ and employers’ organizations, in order to allow that all workers without any distinction, including public sector workers, freedom of association in accordance with the Convention in law and practice;

- revise Presidential Decree No. 5 to exclude workers’ and employers’ organizations from the scope; and

- ensure that the dissolution of trade unions follows a judicial decision and that the rights of defence in due process are fully guaranteed through an independent judiciary.

The Committee requests that the Government report on progress made on the above-mentioned recommendations to the Committee of Experts for its meeting in November 2019.

Government representative – We thank those countries and the social partners who approached the case constructively during the discussions and acknowledged the positive developments and progress made in Turkey relating to the subject matter. We will continue to work with our social partners at national and international level to respond to their concerns and we will inform the Committee of Experts on the issues raised in their reports in on our next report.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative stated that the constitutional amendment that had entered into force on 12 September 2010 had to be considered as major progress. This amendment was extremely important and demonstrated the Government’s sincerity and commitment to the democratic process and the promotion of trade union rights. The constitutional changes included the repeal of the prohibition of certain forms of industrial action, of membership in more than one trade union at the same time and in the same industrial branch and of the conclusion of more than one collective labour agreement at the same workplace for the same period. Moreover, the provisions concerning the liability of trade unions for any material damage caused during a strike were also repealed. In addition, a Public Employees Arbitration Board had been established to make final decisions regarding the conclusion of collective agreements covering public servants, and the discretionary power of the Council of Ministers had been eliminated in this respect. The scope of collective agreements for civil servants had been extended to include social and financial rights, the right to apply to the Ombudsperson had been ensured, and all disciplinary decisions of senior officials concerning civil servants were open to judicial review. The right to apply to the Constitutional Court has been recognized for all individuals in cases of breaches of the fundamental human rights, including trade union rights. Finally the Economic and Social Council had been given constitutional status. The constitutional changes necessitated the substantial adaption of existing trade union legislation and draft bills, including the legislation concerning public servants’ trade unions. An intensive process of consultation between the social partners and relevant public organizations had been continuing in the light of these changes. The speaker remained confident that the revised draft bills resulting from this process would meet the expectations of the Committee of Experts regarding trade union legislation. However, it was important that the social partners be more supportive and encouraging of this process. Such support was required particularly with respect to some remaining controversial issues including the formation of unions on the basis of workplace and occupations, the establishment of federations, and the elimination of thresholds for union competency for collective bargaining. In this context, he stated that due to the upcoming general elections for Parliament on 12 June 2011, and the time needed for revising the legislation regarding the industrial relations system, the harmonization process of the legislation had not been fully completed. It was thus impossible to provide a timetable for future legislative changes.

Turning to some positive steps demonstrating the Government’s good intentions regarding unionization of civil servants, he informed the Committee that a new Act had been adopted by Parliament in February 2011 containing provisions concerning the promotion of unionization in the public sector. The new Act provided for the payment of a premium to every member of public service trade unions, repealed the remaining restrictive provisions of Decree No. 399 concerning contract personnel in the public sector, and clarified their rights to establish trade unions. A Decree having the force of law was also recently issued for that purpose. With regard to measures to prevent the excessive use of force by the security forces, the measures taken had produced the expected results. This year’s May Day celebrations had been peaceful and no incidents had taken place. However, the allegations concerning the detention of some trade union officers and members during public marches were exceptional cases, rather than the rule. During the many marches and demonstrations organized by the trade unions last year, only a few individuals had been taken into custody, mostly for throwing stones and Molotov cocktails at the police, damaging public and private property or insisting on holding rallies or marches in unauthorized places. In any case, legal action could be taken against alleged mistreatment by the public authorities. Concerning the provisions on the auditing of trade unions under the Associations Act, according to the Ministry of Interior’s records, these provisions had not been applied in practice. In conclusion, his Government was deeply disappointed that Turkey had been included on the list of individual cases despite all the progress made. This progress had not been taken into consideration when the list had been determined. After having achieved such reforms, the Committee could have demonstrated greater appreciation and encouragement. The inclusion of Turkey on the list could only undermine the credibility of the Committee’s working methods and might even imply that the political considerations outweighed the technical aspects of the issue.

The Worker members recalled that this was the fifth time in seven years that this case had been discussed. The ILO high-level mission to Turkey, requested by the Committee in 2007, had resulted in a detailed assessment of the required legislative changes. With the suggestions made subsequent to this assessment, and the political will expressed by the Government, it had appeared that a solution was within reach. However, in 2009, the Committee concluded that no actual legislative changes had been enacted. Nonetheless, the adoption of Act No. 5982 in 2010 resulted in the repeal of some provisions of the Constitution that had been criticized for restricting trade union freedom. However, for such constitutional amendments to have an impact on the rights of trade unions, implementing legislation was necessary. Such legislation had not even been proposed. Moreover, Act No. 4688 on public servants’ trade unions had not changed since the discussion of this case began in 2005, and workers in the public sector had not participated in any social dialogue since 2007. Additionally, Acts Nos 2821 and 2822 included several restrictions on trade union rights and specific changes had been requested by both this Committee and the Committee of Experts. Despite the Government’s indication that a draft trade union law had been prepared which addressed the provisions allowing governmental interference in the internal affairs of trade unions, there had not been any progress in the submission of the draft to the legislator, nor did this draft address all of the issues raised by the Committee of Experts. Particularly, the Committee of Experts had indicated that self-employed workers, home-based workers, apprentices, senior public workers and retired workers should be guaranteed the right to organize, that restrictions on the right to strike should be limited to public servants exercising authority in the name of the State and to essential services in the strict sense of the term, and that the waiting period before the calling of a strike should be reduced.

The Worker members underlined that no progress had been made since the constitutional amendments, and these had already been noted at the Committee’s previous session. This was particularly worrying in light of the increasing violations of trade union rights in practice. The Government’s measures addressing civil liberties and the use of violence had not been effective, and the Government should be urged to ensure a climate free from violence, pressure, or threats of any kind. This included judicial harassment, including cases where trade unionists had been arrested for unclear motives and had their cases prolonged for significant periods of time. Regarding the issue of the threshold of 50 per cent plus one required in a company to get the right to collective bargaining, the Worker members emphasized that this had resulted in very few unions enjoying this right. Only a small percentage of organized Turkish workers were covered by a collective agreement and this was a major obstacle in establishing trade unions. Additionally, the law did not provide protection against the dismissal of workers in companies with fewer than 30 employees, meaning a lack of protection for these workers against unfair dismissal for organizing trade unions. This resulted in a low rate of organization in small companies, where trade union protection would be the most needed. The growth of the Turkish economy, without guaranteed rights for workers would result in unbalanced growth and the unfair distribution of benefits. The Worker members concluded by expressing their disappointment that the Government had not delivered on the promises made. No plan of action with a clear timeline had been provided, as requested by the Committee in 2009 and 2010, and use had not been made of ILO assistance for revising the legislation. However, full compliance with the Convention was within reach, and the Government was strongly urged to make all necessary efforts to bring its legislation and practice into conformity with the Convention, without delay.

The Employer members recalled that the previous year’s discussion of this case had been positive, and they expressed the hope that this year’s would be as well. Particularly, the inconsistent approach to social dialogue could be discussed and addressed constructively. The Government’s response to the high-level mission in March 2010 had been to amend the Constitution in only 16 days, and this amendment had been approved by the electorate in September 2010. The Government had previously indicated that some legislative amendments would be required. In this regard, a draft law on trade unions had been prepared to amend Acts Nos 2821 and 2822, in consultation with the social partners, which indicated that social dialogue was under way. The Committee of Experts had noted that the draft law appeared to address a number of the concerns that had been raised, including eight specific improvements, and this was to be commended. However, the Committee of Experts had highlighted that the draft law did not address all issues, and that there were no amendments to Act No. 4688. The Employer members recognized the challenges and difficulties in drafting legislation to address the remaining issues. They emphasized that the Committee’s conclusions could not address the Committee of Experts’ observations on the right to strike. Regarding the new approach of the Government to the use of force by the police, which had been noted at the Committee’s last session, the Employer members reiterated that civil liberties constituted an essential prerequisite to freedom of association. Training had to be provided to the police and the cultural change that was needed would take time to occur, and some problems still existed with regard to trade unions and the police. The Committee’s conclusions should urge the Government to continue to take all the necessary measures, in an expeditious manner, to ensure a climate free from violence, pressure or threats of any kind, so that workers and employers could fully and freely exercise their rights under the Convention. The Government should be urged to review, in consultation with the social partners, any legislation that might have been applied in practice in a manner contrary to the Convention. The Government should also provide a report, containing sufficient information, before the Committee of Experts’ next session. While time was required for issues to be dealt with through the legislative process, the examination of this case could hopefully speed up such developments. The Employer members highlighted that progress had been made, and that additional steps were required to finish the process.

A Worker member of Turkey indicated that the amendment of the Constitution in 2010 should be noted as progress, but underlined that the demands regarding the restrictions on the right to strike and a description of the terms “civil servants” and “workers employed in the public sector” had not been addressed in this process. Despite the amendments made to Acts Nos 2821 and 2822, these Acts were still far from maintaining a peaceful climate in the workplace during trade union activities. Two cases were cited to illustrate the frequent violations of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Organizing had become almost impossible due to the dismissal of workers who joined unions, in addition to the implementation of flexible work and subcontracting. The Government had prepared a draft law on trade unions in order to bring the legislation into conformity with the Convention, but this draft was not acceptable to the social partners as it inadequately addressed the needs of workers and included several restrictions. Finally, the speaker emphasized that, after the holding of two tripartite meetings in 2010 and 2011, certain points of conflict remained. The Government would therefore need to make a very strong commitment to the Committee, including adopting a plan of action with clear time lines.

Another Worker member of Turkey recalled that a law on civil servants’ trade unionism had been ratified by the Grand National Assembly in 2001. However, civil servants remained deprived of the right to strike and to bargain collectively. The Constitution also prohibited civil servants in specific public sectors from establishing or joining trade unions. In the past seven years, Turkey had been included in the final list on five occasions and, every year, the Government had promised to undertake positive reforms in order to comply with the Convention. In 2010, a referendum was held to amend some articles of the Constitution, but public workers’ trade unions had not been consulted due to the lack of social dialogue and the amendments were prepared without consensus. Social dialogue was not functioning. As regards Act No. 4688, no steps had been taken to amend its provisions to bring it into conformity with the Convention. To solve the problems facing public workers’ trade unions and their members, the Committee should urge the Government to initiate negotiations immediately with the representatives of the civil servants to bring Act No. 4688 into conformity with the Convention. Clear time lines should be requested to ensure its realization before the 2012 International Labour Conference.

The Employer member of Turkey highlighted that some recent developments had created concerns within the Turkish Confederation of Employers’ Associations (TISK). Recalling the importance of tripartism, the speaker underlined that the text provided to the high-level mission in May 2010 had not been discussed or agreed upon by the Turkish social partners. He disagreed with the Committee of Experts’ assessment that these developments were an improvement as they had lacked concurrence from the social partners. The speaker indicated that discussions concerning Acts Nos 2821 and 2822 remained on the agenda for the social partners, and that TISK had hosted tripartite meetings in this regard. The texts finalized through negotiations were acceptable, except for provisions permitting the establishment of workplace and occupational trade unions and federations, as it did not fit well with the Turkish tradition of industrial relations and could contribute to a breakdown of peaceful relations at workplaces. Three trade union confederations had also raised reservations in this regard during discussions. Consultations among the social partners on these amendments would continue until consensus was reached. Following the upcoming general election, the Turkish employers would continue to support the Government’s efforts to improve the relevant legislation.

An observer representing the International Trade Union Confederation (ITUC) spoke in memory of a retired teacher and former trade unionist who had passed away during a demonstration held on 31 May 2011. Mentioning the arrest and imprisonment of two specific trade unionists, and the trial of 111 trade unionists on 3 June 2011 facing sentences of five years of imprisonment, he highlighted that according to the ITUC annual survey, 66 per cent of the dismissals following trade union activities had been recorded in Turkey. The events that had occurred during this International Labour Conference showed that trade unions activities were being prevented by using methods such as killings, judicial harassment, arrest and dismissal. The labour legislation was not in conformity with ILO Conventions and only 5 per cent of the workers could enjoy the right to collective bargaining. Almost half of the workforce was in the informal economy and 25 per cent of the society was living below the poverty line. The main reason for this was the limitation of trade union rights. The national legislation regarding trade unions continued to provide for a 10 per cent threshold applying to a whole sector, and a 50 per cent threshold in the workplace, a notary obligation for joining or resigning from a union, a prohibition of the right to strike and long legal proceedings regarding reinstatement, not in conformity with international standards. Trials regarding the closing of four trade unions were ongoing. The Government had not made the necessary legal amendments. Despite the short period in which the constitutional amendments had been adopted, the number of dismissals and arrests had increased. The Government should be strongly called upon to apply the Convention.

Another observer representing the ITUC added to the statement made by the previous speaker, that half a million public servants did not have the right to join trade unions. High-level elected trade union executive committee members as well as ordinary members, most of them women, were facing judicial harassment, dismissals and exile from their workplaces because they organized and attended trade union activities. Listing specific examples of women trade unionists facing such measures, she indicated that these cases were still extraordinary cases. However, the risk was high that they would become ordinary. The Committee should therefore include the conclusions on this case in a special paragraph of its report.

The Worker member of France, speaking also on behalf of Education International and of the Public Services International, referred to a number of violations of the Convention over recent years affecting trade unionists in the public service and in education. She referred to the cases of several trade unionists (Metin Findik, Seher Tumer, 31 members of the Confederation of Public Employees’ Trade Unions and of its teachers’ union, Egitim-Sen, including trade union leaders) had been arrested without being informed of the charges made against them. Some of them had been the victims of repressive measures, such as wage reductions, dismissals, the prohibition of employment in public services, and a ban on travelling abroad and therefore on attending international trade union meetings. There was still no verdict two years after the beginning of the trial, which was contrary to the case law of the ILO that rapid procedures needed to be guaranteed in cases of trials of trade unionists. The courts needed to deliver their rulings as rapidly as possible in order to bring an end to the pressure that was being exerted on those charged. Moreover, the multiplication of the number of precarious contracts was leading teachers to give up union membership so that they could find employment. In addition, the right to strike of public employees was limited, and even non-existent, while participation in a strike still constituted grounds for dismissal from the public service. The legislative amendments requested on that point by the Committee of Experts had still not been adopted. In that respect, she referred to the April 2009 ruling by the European Court of Human Rights in the case of Enerji Yapi-Yol Sen v. Turkey, in which the Court had emphasized that, while the right to strike was not absolute and could be made subject to certain conditions and limitations, a prohibition applied to all public employees was too broad and contrary to the European Convention on Human Rights. The Government needed to implement the Convention strictly, stop interfering in trade union affairs and guarantee human, civil and trade union rights.

The Worker member of Finland pointed out that the problem was not only that national legislation was not in full conformity with international standards, but also that it was not effectively enforced. Widespread anti-union discrimination and failures in the justice system remained serious problems. Over the last few months, hundreds of workers had been dismissed because of their trade union activities. She referred to a specific incident which took place in 2008. Although the ensuing investigation made by the Ministry of Labour concluded that the dismissals were unlawful, the company refused to pay the fine. The judicial proceedings had been extremely slow. Unfortunately, the employer launched an appeal against the ruling that was in favour of the workers concerned, and the case was pending before the Supreme Court. This example was not isolated: since the beginning of 2011, 163 workers had been dismissed for union activity in the metal sector alone. Anti-union discrimination, especially unfair dismissal, in the absence of speedy remedy was one of the most serious violations of freedom of association as it jeopardized the very existence of unions. As a party to Conventions Nos 87 and 98 and the European Convention on Human Rights, Turkey had a responsibility to protect workers’ rights to form and join trade unions as well as to bargain collectively.

The Worker member of Germany, speaking also on behalf of the Worker member of Austria, expressed concern at the persistent violations of trade union rights. Attacks on freedom of association, freedom of assembly and the right to bargain collectively were of particular importance for German and Austrian trade unions in view of the large number of enterprises of both countries operating in Turkey. There were still insufficient guarantees for trade union rights, and reforms must be accelerated. Social and trade union rights should enjoy higher priority in negotiations for Turkey’s admission to the European Union. It was not only a matter of amending legislation, but also of improving both the situation in practice and legal protection. He expressed full support for the statement made by the Worker members, and those made by the Worker members of Turkey.

The Government representative underlined that the social partners were involved in the ongoing review of legislation. As the previous draft bills had not been found to address the issues raised by the Committee of Experts, revisions were under way and several meetings had been held with the social partners in this regard. Only a few issues remained controversial. Turning to the issue of anti-union discrimination, the speaker highlighted that there were legislative provisions prohibiting such practices, and that both workers and employers could have judicial recourse on these matters. Anti-union activity by employers was punishable by three years’ imprisonment and compensation for the worker involved included not less than one year’s wages and the possibility of reinstatement. This covered all workers and all workplaces. Turning to the allegations of the detention of trade unionists, the speaker emphasized that any such charges were unrelated to trade union activity. Some trade unionists were also members of illegal organizations. The judiciary was independent, and persons would not be prosecuted on charges without concrete evidence of illegal activity. He then addressed the death of a trade unionist, indicating that the demonstration at which this had occurred had been of a political nature and not related to trade union activities. However, the incident was under investigation and appropriate measures would be taken. He indicated that the imprisonment of a former trade union official had been unrelated to trade union activity, or being an officer of a trade union. Addressing the arrests of 111 trade union members, the speaker indicated that these charges were related to the organization of demonstrations in areas that were not authorized for these purposes. Addressing newly established trade unions, he emphasized that the new legislation would authorize trade unions to be established and bargain collectively. Public servants were able to set up associations to represent their interests, except for the purpose of collective bargaining.

The Employer members indicated that nothing had arisen during the discussion to alter their opening statement. Consequently, their introductory remarks also stood as their final remarks on the case.

The Worker members stated that the discussion and the information provided by the Government had strengthened their view that it was both urgent and feasible to bring the legislation into conformity with the Convention. A few amendments to the Constitution had been made, but the relevant legislation was still the same as in 2005 and the Government had not provided a plan of action with a clear time line as requested by this Committee. The Government had not made use of the recommended ongoing assistance of the ILO in revising the legislation nor had it provided any substantive new information. Furthermore, several examples presented during the discussion had shown that the rights of workers to establish and join trade unions freely were even more under pressure. It was feasible to make the necessary changes in a relatively short period of time because, with the help of the Committee of Experts and the ILO, the required changes had become perfectly clear. The two missions that had taken place had helped the move forward, and the Worker members requested that a new high-level mission be sent to facilitate the efforts to bring the legislation into conformity with Conventions Nos 87 and 98, in consultation with the social partners, and to facilitate social dialogue. The Government was also requested to provide a time-bound plan to take the necessary steps; to accept the technical assistance of the ILO to complete this process as soon as possible; and to report on the legislative amendments adopted before the next session of the Committee of Experts. In order to convey the urgency of the matter to the Government, the Worker members asked that the conclusions of the Committee on this case be included in a special paragraph of its report.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed.

The Committee noted the Government representative’s explanation of the constitutional amendments that had come into force and which addressed requests made by the Committee of Experts for many years. He referred to the need for more support from the social partners in the process of legislative revision to bring about the pending requests from the Committee of Experts, particularly as regards the controversial matters. While the Government was committed to improving the trade union legislation, he recalled that the process of revision takes time in any democracy and delays had occurred as the National Assembly had not met over the last three months due to the election campaign. For this reason, he was unable to provide a timetable for the possible legislative changes. He referred to the adoption in February 2011 of an Act providing for a collective agreement premium for members of public servant trade unions and to the abrogation of a criticized provision concerning contract personnel in the public sector. He stated that positive results had been seen in the prevention of excessive use of force by the security forces and observed that this year’s May Day celebrations had taken place without incident. The detention of some trade union officers and members during public marches and demonstrations were mainly individual cases involving violence, damaging of property or holding marches in places not allocated for that purpose. He also referred to other persons mentioned before the Committee and affirmed that they had been convicted for having committed criminal acts. As regards trade union auditing under the Associations Act, he stated that this provision had not been used in practice.

The Committee recalled that it had discussed this case on several occasions. The Committee welcomed the entering into force of the constitutional amendment under Law No. 5892 repealing several provisions of the Constitution which previously restricted the right to organize, following the September 2010 referendum. The Committee noted with concern, however, the new allegations of restrictions placed on freedom of association and assembly of trade unionists. In this respect, it once again recalled that respect for civil liberties was an essential prerequisite to freedom of association and urged the Government to continue to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee urged the Government to review, in full consultation with the social partners, any legislation that might be applied in a manner contrary to this fundamental principle and to consider any necessary amendments or abrogation.

The Committee regretted that no specific progress had been made on the long-awaited draft law on trade unions, amending Acts Nos 2821 and 2822, nor had any timetable been provided in this respect. It further regretted that several provisions in contravention with the Convention remained: the exclusion from the right to organize of certain categories of public employees, self-employed, home workers, apprentices, unemployed; and restrictions to the right to elect representatives in full freedom and to organize activities in full freedom. The Committee further noted with regret that there had been no further proposals to amend Act No. 4688 on public employees’ trade unions.

The Committee urged the Government, as it did last year, to elaborate a plan of action with clear time-lines to be presented to the Committee of Experts for monitoring and to continue to avail itself of the ongoing technical assistance of the ILO. The Committee requested the Government to discuss with the ILO within the remaining days of the Conference how this technical assistance could be made most effective, aimed at the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688. It requested the Government to provide detailed and complete information on all progress made on these issues and to transmit all relevant legislative texts to the Committee of Experts before its next meeting.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

The Government provided the following written information on the latest legislative developments relevant to the application of Convention No. 87 in Turkey.

The draft law amending the Constitution was enacted by the Grand National Assembly of Turkey (TBMM) on 7 May 2010 and published in the Official Gazette on 13 May 2010 as Act No. 5982. This Act is subject to a referendum to be held on 12 September 2010. The amendments of the Constitution of the Republic of Turkey which concern the application of the Convention include the following:

(1) Article 51, fourth paragraph that provides that “Membership in more than one trade union cannot be obtained at the same time and in the same branch of work” is repealed.

(2) The heading of article 53 is amended to read: “A. The right to collective labour agreement and collective agreement” and third paragraph is repealed. The following provisions are added to the said article:

“Public servants and other public employees have the right to conclude collective agreement.

If a dispute arises during the conclusion of collective agreement, parties may apply to the Public Employees’ Arbitration Board. Decisions of the Public Employees’ Arbitration Board are final and valid with the force of collective agreement.

Scope of the right to collective agreement, its exceptions, persons to benefit from the collective agreement, manner and procedure for conclusion of a collective agreement and its entry into force, extension of the provisions of the collective agreement to the pensioners, establishment of the Public Employees’ Arbitration Board, its working principles and procedures as well as other matters shall be regulated by law.”

The right to collective agreement is fully recognized for public servants and other public employees. In case an agreement is not reached during the collective bargaining process, a decision of the Public Employees’ Arbitration Board shall be final and become the collective agreement. As a result of this change, the existing discretionary power of the Council of Ministers shall cease. Moreover, pensioners are included within the scope of the collective agreement.

(3) The fourth paragraph of article 53, that provides that “more than one collective labour agreement at the same workplace for the same period shall not be concluded or put into effect,” is repealed.

(4) The third paragraph of article 54, that provides that the trade union will be liable for any material damage in the workplace during the strike and the eighth paragraph of article 54, that provides that “politically motivated strikes and lockouts, solidarity strikes and lockouts, general strikes and lockouts, occupation of work premises, labour go-slows and other forms of obstruction are prohibited” are repealed.

(5) A sentence is added to the second paragraph of article 128, so as to include social rights as well as financial rights in the scope of the collective agreement. The article now reads: “The qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other matters related to their status shall be regulated by law. However, provisions of the collective agreement regarding financial and social rights are reserved.” With this amendment it is stipulated explicitly that social rights as well as financial rights are included within the scope of the collective agreement and that these rights can be regulated by collective agreement.

(6) The heading of article 166 is amended to read: “I. Planning; Economic and Social Council”, and the following paragraph is added to this article: “An Economic and Social Council shall be established with the aim of communicating to the government advisory opinions on determining economic and social policies. The establishment and functioning of the Economic and Social Council shall be regulated by law.” With this provision the existing Economic and Social Council has become a constitutional institution and an important player in the field of economic and social policies.

(7) The third paragraph of article 129 is amended to read: “Disciplinary decisions cannot be outside the scope of judicial review” so as to ensure the right of the public servants and other public employees to have recourse to the judicial review of all of the disciplinary measures.

(8) The following paragraph is added to article 20: “Everyone has the right to the protection of personal data concerning him or her. This right also includes the right to be informed of the personal data concerning him or her and the right of access to this data, and the right to have it rectified or deleted, and the right to know whether it is used appropriate to its purpose. Personal data can only be processed in cases specified by law or with the open consent of the person concerned. Principles and procedures regarding the protection of the personal data shall be regulated by law.”

As proposed by the Conference Committee on the Application of Standards during the 98th Session of the International Labour Conference (2009) and also requested by the Committee of Experts in its latest observation concerning Convention No. 87, a visit of a high-level bipartite mission to Turkey took place from 3 to 5 March 2010. Members of the mission met with high-level representatives of the Ministry of Labour and Social Security, representatives of the confederations of the trade unions and public servants’ confederations and confederation of the employers’ organizations as well as the Chairperson of the Parliamentary Commission of Health, Family, Labour and Social Affairs. As was noted by the mission, the Government had prepared a new draft law on trade unions which had been submitted to the ILO for review. This new draft law, which had been prepared as the draft law currently on the agenda of the Grand National Assembly of Turkey, did not comply fully with the provisions of the Convention as pointed out in detail by the Committee of Experts in its latest observation. Consultations with the social partners on the amendments to the trade union legislation will continue until consensus is reached in light of the constitutional reform enacted by the Parliament and on the basis of full compliance with the provisions of the Convention.

The Government believes that it will be able to report to the ILO the entry into force of the constitutional reform when reporting in 2010 on other matters that concern the application of the Convention in time for the Committee of Experts to examine in its meeting in November–December 2010.

In addition, before the Committee a Government representative expressed his disappointment that this case was under discussion, as Turkey was a case of progress. A number of significant constitutional amendments had been approved on 7 May 2010. A referendum on these amendments was scheduled for September 2010. The amendments included the repeal of the prohibition of political strikes, solidarity strikes, general strikes and lockouts and labour go-slows. The provisions prohibiting membership in more than one union were repealed, in addition to the repeal of the prohibition of more than one collective labour agreement in one workplace. The amendments also recognized the right of public civil servants to conclude collective agreements. They included the establishment of the Public Employees’ Arbitration Board, with the power to establish a collective agreement when the parties were unable to, and the revocation of the discretionary power of the Council of Ministers in this respect. The liability of trade unions for any material damage caused in a workplace where a strike had been held was also repealed in these amendments. Lastly, the amendments provided constitutional status to the Economic and Social Council.

Pursuant to the 2009 conclusions of this Committee, and the request of the Committee of Experts, a high-level bipartite mission had visited Turkey in March 2010. The mission had noted the preparation of the draft Act on Trade Unions. A prior draft law on this subject had not been in full compliance with ILO Standards. Therefore a new draft Act on Trade Unions had been produced, following discussions at the Tripartite Consultation Board. The draft Act on Trade Unions involved the redesign of the main parameters of the industrial relations system and aimed to stipulate general principles rather than to regulate specific union activities. The important changes introduced in the draft law were: the lifting of the requirement for notary approval for union membership; the right to establish trade unions at the level of the workplace and occupation and the right to establish federations; the right of trade unions to determine their own statutes and to organize their activities; the repeal of the requirement of active employment for being a union official; the removal of restrictions on the establishment of trade unions in the radio broadcasting and television sector; the enhancement of protection for union officials and the simplification of the procedure for establishing a union. The draft Act on Trade Unions also contained provisions stipulating that financial audits of trade unions were to be conducted by independent auditors and that trade unions would not be closed due to the criminal acts of their officers. Prison sentences contained in the current Trade Unions Act would be replaced with judicial fines. Consultations with the social partners on this draft would continue until consensus was reached on the basis of full compliance with the Convention.

A peaceful celebration had been held on May Day on Taksim Square in Istanbul, 30 years after the decision to prohibit all demonstrations at this square. The security forces and trade unions had collaborated for this event. With regard to the comments of the Committee of Experts concerning the excessive use of force by security officials, several measures had been taken in 2009. Training for all police officers responsible for security at public marches and demonstrations had begun regarding the proportional use of force. Through this framework, training would be provided to 17,000 police officers annually. Riot police had also been equipped with helmets with communication devices and easily identifiable numbers. The speaker stated that the attendance of police officers at public trade union meetings was related only to the maintenance of public order. Pursuant to the legislation in force, security forces were not authorized to enter trade union premises unless they had obtained a court ruling. On the subject of the fire at the Egitim-Sen branch office in 2007, the speaker indicated that the security forces and fire brigades had intervened in a timely manner, and that three suspects had been arrested. One of these suspects had been sentenced to three years’ imprisonment. No trade union members had been harmed in the fire. The speaker expressed the hope that this progress would be taken into account in the Committee’s conclusions.

The Employer members appreciated the openness and transparency of the Government in the course of the high-level bipartite mission to the country which had taken place in March of this year. At this stage, however, they could not make a determination as to whether this case constituted a case of progress since this issue should be determined by the Committee of Experts. This was a long-standing case and had been discussed for the last time the year before.

The Government had reacted to the high-level bipartite visit with astonishing speed amending the Constitution in just 16 days. The constitutional amendment covered both private and public sector issues and would have to be analysed by the Committee of Experts in order to see whether it addressed all issues raised in the past. It was important to accompany this constitutional amendment with legislative reform as the labour inspectorate would rely on national laws and regulations, not constitutional provisions, in carrying out inspections. The new draft law was likely to constitute a more difficult challenge as there was a long history of various drafts discussed and presented to this Committee in the past. The previous drafts contained a number of discrepancies in relation to Convention No. 87. The new draft presented by the Government followed a different paradigm. It was nevertheless difficult to evaluate whether this new draft met the requirements of Convention No. 87 and it should be submitted to the Committee of Experts for analysis.

With regard to the new approach to the use of force by the police referred to by the Government representative in the light of numerous comments made by the Committee of Experts under the heading of civil liberties, the Employer members emphasized once again, as they did last year, that civil liberties constituted an essential prerequisite to freedom of association. Time would tell whether the solution proposed would work. Training would have to be provided to the police and cultural change would have to take place and this would unavoidably take some time. The information provided to the ILO in this regard would be valuable in assessing progress made in the implementation of the Convention.

In conclusion, the Employer members considered that this was an exemplary case illustrating how governments should react to bipartite missions carried out in order to make a better assessment of the national situation and express a point of view on the application of the Convention. After having taken the steps described today, the Government now needed to submit the information to the Committee of Experts. The Employer members looked forward to continued and sustained progress in this case.

The Worker members thanked the Government representative for the information provided on the matters that had been raised for several years by the Committee of Experts and the Conference Committee. The previous year, the Conference Committee had called for a high-level mission in the present case. The mission had taken place in March 2010. The Committee of Experts had noted in its report that draft legislation on trade unions, collective bargaining and strikes was being reviewed. However, it was questionable whether the situation had changed.

The Worker members observed that the Committee of Experts had itself noted the excessive use of force by the forces of order against trade unionists, the interference by the Government in the formulation of the constitutions of trade unions in the public sector by prohibiting any reference to the concepts of strikes or collective disputes, the refusal to recognize unions of retirees and the presence of the police during trade union meetings. An anti-union climate had developed, emanating from both the authorities and employers for whom trade union membership was a reason for pressure and dismissal.

In the education sector, the economic crisis was leading the Government to make employment more precarious. In the new school year, 142,000 teachers would be recruited under precarious ten-month contracts without social benefits. The increasing use of such contracts was leading to discrimination against unionized teachers, many of whom were forced to give up their membership to increase their chances of obtaining an employment contract in a context in which 327,000 teachers were unemployed. The teachers’ trade union (Egitim-Sen), suffered regular intimidation. Its web site had even been closed down for several days for criticizing a decision by the authorities. In May 2009, trade unionists of the Confederation of Public Employees’ Trade Unions (KESK), including 28 teachers from Egitim-Sen, had been arrested and imprisoned, in several cases for over six months. The judicial decision had been postponed and there had still been no ruling over a year after the arrests. The activities of the defendants were under close surveillance.

The Worker members denounced the worrying trend of the use of judicial harassment and charges of terrorist activities to keep trade unionists in detention or to ill-treat them.

Admittedly, the Committee of Experts had noted draft legislation on trade unions, collective bargaining, strikes and lockouts, although the Bills had still not been adopted or implemented. Although the Bills contained improvements, certain matters had not been addressed: certain categories of workers, such as the self-employed, domestic workers, high-level officials and prison officers were excluded from the right to organize; trade unions could only be established at the branch level, the branches being determined by the Ministry of Labour; and the right to strike was closely regulated. Finally, the 2004 Associations Act still allowed the Government to monitor the accounts of workers’ and employers’ organizations.

The Government had provided information on a draft amendment to the Constitution, which would be submitted to a referendum. The draft amendment would repeal certain provisions that were contrary to the Convention, by allowing several trade unions in the same branch, recognizing the right to collective bargaining in the public sector, allowing political, general and sympathy strikes, and abolishing the quasi-automatic liability of trade unions during strikes. Finally, the Government appeared to have changed its attitude concerning the commemoration of May Day.

While regretting that this information had not been provided to the high-level bipartite mission, the Worker members called upon the Government to submit a plan of action for bringing the legislation into conformity with Convention No. 87. Finally, they demanded an immediate cessation of the violence against trade unionists and of interference in the affairs of trade unions, without waiting for the legislation to be brought into conformity with the Convention.

A Worker member of Turkey expressed his appreciation for the ILO high-level mission and its contribution in making meaningful progress in terms of bringing the national legislation into conformity with Convention No. 87. Being in favour of the view that the constitutional amendments should precede the legislative reform, he noted that the Government had passed a constitutional amendments package at the Grand National Assembly which covered, among other things, part of the trade union demands on individual rights and freedoms. However, amendments making a clear distinction between contractual workers and civil servants, abolishing the prohibition of the right to strike in certain cases, and allowing trade unionists to preserve their trade union office in case of election to the Parliament were not included in the package.

The Government had communicated to the ILO a new draft law on trade unions which amended Acts Nos 2821 and 2822 just prior to the visit of the high-level mission. The draft had only been submitted for consultation at the Tripartite Consultation Board, after it had been communicated to the ILO. The trade unions expected that the Government would negotiate this draft with the social partners.

Contrary to the official figures, the unionization rate in Turkey had been estimated at less than 10 per cent. Trade unions faced problems in determining their representativeness for collective bargaining purposes. That was the case, for instance, for the Textiles, Knitting and Clothing Workers’ Union of Turkey (TEKSIF) trade union in textile factories employing thousands of workers in Denizli and Bursa. The draft amendments proposed to abolish the requirement of 10 per cent representativeness at branch level but maintained the absolute majority requirement at the workplace, thus generating a risk of inflating the number of employer-dominated unions in Turkey. The absolute majority requirement entailed a risk of dismissals of trade union members in order to prevent the unions from reaching the representativeness threshold, and constituted one of the most important obstacles to the exercise of the right to organize. Any draft which did not take these obstacles into consideration could not be accepted and would be contrary to Convention No. 87. Moreover, the Commission charged with fixing the industrial branches foreseen in section 5 of the draft, should be replaced by an autonomous and independent competency-fixing institution which should also deal with keeping the records of affiliation of new members. The draft would also prevent senior personnel who had the right under the current legislation to be union members, from joining trade union organizations. The draft amendments also abolished the current requirement to be active workers for founding trade unions or becoming executive board members. This might generate problems in practice as it would open the door to persons with no relationship to a trade union. The membership fees would moreover be fixed according to the principles and procedures identified in the trade union statute. This might restrict the members from joining a trade union of their own choice. The final draft also extended the restrictions regarding strike suspensions – which would be pronounced by a judicial body and not the Council of Ministers – as it would no longer be possible to continue a strike after the order for its suspension expired. Finally, provisions requiring trade union officials to give up their posts in order to run for office in municipal or general elections persisted.

Another Worker member of Turkey stated that the public sector trade union movement in Turkey had been facing significant problems which had already been discussed several times at the Conference Committee. Even though some theoretical changes had taken place following the high-level bipartite mission, nothing had changed in reality. The constitutional amendment which was under discussion concerned 21 different issues including some improvements in trade union rights like collective bargaining, but without the right to strike. The referendum was going to take place on 12 September if the proposed amendments were not blocked by the Constitutional Court in the meantime. Nevertheless, the adoption of legislative reform was more important than the constitutional amendment and a draft revising Act No. 4688 had already been agreed upon by the social partners since 2006. The new draft bill to amend Act No. 4688 would undermine some of the basic rights currently enjoyed by public workers’ trade unions in Turkey. Even though the public workers in Turkey enjoyed the right to strike by virtue of a decision of the European Court of Human Rights and a decree of the State Council of Turkey, their right to strike would now be banned through the amendment of the Turkish Constitution. Workers would be able to join more than one union, which would challenge the power of the largest trade unions. All these amendments had been decided by the Government without consensus by the social partners. According to recent articles in the press, a draft bill to amend Act No. 657 by limiting job security for civil servants had been recently submitted to Parliament, again without any consultation with trade unions, except one. This demonstrated the attitude of the Government towards social dialogue. After one-and-a half years in office, the Minister of Labour and Social Security had still not replied to the requests of the unions for a meeting to discuss the public workers’ trade union problems and communication channels from the Ministry were open only towards one confederation. To conclude, the speaker emphasized that the main problems were the lack of social dialogue, discrimination among trade unions, and efforts directed more towards making a good impression vis à vis the ILO and the European Union rather than making substantive progress. The speaker asked the Committee to send another high-level mission to the country.

The Employer member of Turkey stated that the amendment to the Turkish Constitution was going to open the way for general and politically motivated strikes, for the right to join more than one trade union and for collective bargaining for civil servants and other public officials. The Turkish employers were of the opinion that certain of these amendments would reduce the competitiveness of Turkish enterprises and negatively affect social peace. With regard to the new draft bills, he recalled that in April 2008, the Minister of Labour, the social partners and government officials had met and agreed on draft bills concerning trade unions and collective bargaining, strikes and lockouts. This had been an outcome of consensus and the draft bills had been submitted to Parliament in May 2008. However, these draft bills had been dropped later on. As proposed and requested by the Conference Committee, a high-level bipartite mission had visited Turkey both in 2009 and 2010 and had met with Turkish high-level representatives. Following these high-level visits, the Government had prepared a new draft law on trade unions and had submitted it to the ILO for review. The speaker expressed the expectation that consultations with the social partners on the amendments to the legislation would continue until consensus was reached.

An observer representing the International Trade Union Confederation (ITUC) stated that although at first sight, it seemed that some positive developments had taken place regarding freedom of association and the right to organize in Turkey, serious concerns existed about the exercise of these rights in practice. Against the very high level of expectations from the constitutional amendments, it should be reminded that article 90 of the Constitution already provided that international laws superseded domestic laws. However, this provision had never been implemented. It was equally important to remember that it might take a very long time, six to eight years, to integrate the constitutional amendments into laws just like it had happened with regard to the most basic civil servants’ rights in the past. Beyond all these shortcomings there were a number of hidden risks in the draft amendments to the Constitution. For example, while the ban on sympathy strikes had been removed, the provisions according to which workers could organize strikes only in case of collective disputes remained in the text.

Regarding the situation in practice, thousands of workers were being dismissed only because they had become members of unions affiliated to the Confederation of Progressive Trade Unions of Turkey (DISK) and were neither reinstated nor benefited from collective rights during the legal proceedings which usually took longer than two to three years. Many unions, like those representing young workers and pensioners as well as the Confederation of Small Farmers were faced with court proceedings aimed at their closure. Numberless examples existed for the systematic interference, mostly through harassment and threats, with efforts by KESK unions to organize public employees. Activities by KESK aimed at awareness-raising were prohibited in public institutions and posters were removed only because they criticized government social policies. The President of the Office Employees Union of KESK had been dismissed officially for being involved in ideological activities. Throughout 2009 many KESK executives, representatives and members, particularly those who raised issues related to discrimination of the Kurdish minorities, had been arrested and imprisoned without being charged with any specific crime. All peaceful demonstrations organized by KESK and its affiliate unions had been violently attacked by police forces with tear gas. In April 2010, a peaceful press conference organized to support the strike of Tekel workers had been violently prevented by thousands of policemen. Many members and activists including an executive committee member of KESK had been injured in the clashes. Following a one-day strike organized by KESK on 25 November 2009 in support of trade union rights of public employees, hundreds of members had been penalized with sanctions, salary reductions, etc. Sixteen members of the KESK transportation employees union had been dismissed only because they had joined this action.

Unfortunately, missed opportunities were also to be noted, like the consensus reached by the social partners in the Bursa meeting organized by the Labour Ministry in May 2008. Due to internal constraints inside the Government itself, this consensus had not been given concrete expression into a draft proposal. Instead, after a number of serious modifications made by the Labour Ministry, the consensus text had changed altogether. To conclude, the obligation of the Government was not to wait for consensus between the social partners or to make any organization happy; it was to do what was required of it under its international commitments.

The Worker member of Germany stated that the German trade union movement was preoccupied by the persistent violations of trade union rights in Turkey even more so since German enterprises or their suppliers which operated in the country contributed to these violations and profited from them.

The Committee of Experts had consistently observed that the Government was opposed to the creation of trade unions. Act No. 2821 obliged trade unions to certify their creation and dissolution by a notary. The tariff for trade union affiliation was the equivalent of €18. For six million workers whose minimum wage was the equivalent of €300 per month these fees were impossible to pay. The unions were obliged to pay the fees themselves and thus, the number of trade union members depended on the financial capacity of the organization. The draft law provided for the elimination of this condition but it had been presented in May 2008 and had still not entered into force. The Government should stop slowing down the adoption of this law.

The Committee of Experts had also referred to the violation of Article 2 of Convention No. 87 to the extent that according to Act No. 2822 a trade union could be recognized as negotiating agent only if it had more than 50 per cent of employees in an enterprise and represented more than 10 per cent of workers in the sector. This deprived 49.99 per cent of employees of the right to organize. Some trade unions could be deprived of negotiations for many years because the employer had lodged appeals which had a suspensive effect on negotiations. For example the Birlesik–Metal trade union which functioned in the automotive sector and had well over 50 per cent of employees, had been deprived of the right to bargain collectively for 820 days. Another enterprise had been split into two in order to prevent the trade union from attaining the representativeness threshold of 50 per cent. These situations showed the extent to which the legal regime allowed employers to violate trade union rights. Moreover, workers were the object of harassment in order to leave the unions.

The German trade union movement called on the Government to rapidly introduce the necessary legal amendments in order to conform to Convention No. 87 and requested European Union members to take into account the respect of trade union rights in the context of negotiations on the accession of Turkey to the European Union.

The Worker member of Japan stated that swift measures were needed to amend Act No. 4688 and the Constitution in order to address a series of issues concerning the right to organize of public employees. These included the exclusion of a number of public employees from the right to organize; the removal of trade union executive bodies in case of non-respect of requirements set out in the law; the termination of trade union office by reason of the transfer of a trade union leader to another branch of activity or his/her dismissal or simply the fact that a trade union leader left work; prohibition of strikes in many services which could not be considered as essential in the strict sense of the term; and heavy sanctions such as imprisonment of workers participating in unlawful strikes.

Most disconcerting was the growing trend of judicial persecution of public sector trade unionists. Seher Tumer of the Trade Union of Public Employees in Health and Social Services (SES), had been arrested last year and sentenced to more than seven years’ imprisonment, only because of her lawful activities in the labour and women’s movement. Meryem Ozogut of the SES, as well as Metin Findik, Ferit Epozdemir and Bestas Epozdemir, from the Municipal Employees Union (Tum Bel Sen), had also been recently arrested in a similar manner. In addition, many municipality workers had been forced to resign from their union or had been dismissed. It was very regrettable that no progress had been made in practice and the situation was very serious and critical.

As for the legislative measures, the constitutional amendment did not seem to comply with the Convention in terms of the right to strike and had been adopted by Parliament without prior consultation with the social partners. Although constitutional reform was necessary to fully guarantee the right to organize, including the right to strike, the amendment of Act No. 4688 was urgently needed. The workers had waited enough and no more delay could be tolerated. The speaker requested the Government to take active steps by all means to ensure sufficient and meaningful dialogue aimed at effectively addressing all issues under Convention No. 87 in law and in practice, including by guaranteeing public employees the right to organize and the right to strike for those who were not exercising authority in the name of the State.

The Government representative indicated that he wished to respond to some comments made during the discussion. Regarding the allegations of dismissals on the grounds of anti-union discrimination, he emphasized that provisions guaranteeing protection against anti-union discrimination existed in both the Constitution and labour legislation. Acts of anti-union discrimination by employers were considered as a crime punishable with one to three years’ imprisonment under the Penal Code and compensation consisting in no less than one year’s wage and possibility of reinstatement. During the economic crisis not only dismissals but also anti-union discrimination might increase and this could happen in any country. In such cases, both unions and workers had judicial means to contest such actions and were advised to have recourse to the means available.

With regard to the excessive use of force by the security forces, the Government had taken the necessary measures to prevent the occurrence of such incidents which largely occurred for two reasons. One was related to the infiltration of illegal organizations into the marches and demonstrations organized by the trade unions, and the other related to the unnecessary insistence of trade unions to organize such meetings in streets and squares which were not allocated for such purposes. In any case, trade unions and workers had all the legal means to contest any acts of the security forces.

The Government representative stated that Turkey was a country faced with secessionist and terrorist activities and attacks. During the last 30 years, terrorist activities had claimed more than 30,000 lives in Turkey. The arrest of trade unionists under suspicion of having links with an illegal organization should not be criticized, as it was entirely legal to do so in any country of the world. Trade union members should not be considered an exception to this rule. The KESK officers mentioned during the discussion had been arrested in May 2009 as part of an operation conducted against terrorist organizations under the Act on the fight against terrorism. The Court had released the detainees while a decision was pending. Ms Ozogut had been charged along with 13 other associates for belonging to a terrorist organization and making propaganda in favour of such organization. This was not related to trade union activities.

With regard to consultations with the public servants’ trade unions, he indicated that two workshops had been organized in February and March on trade union rights of public servants with the participation of representatives of trade unions, relevant ministries and public organizations as well as academics. These two workshops provided a forum to discuss possible changes to the public servants’ trade union legislation. Furthermore, a Public Personnel Consultation Board under the presidency of the Minister of State had been established with the participation of the three most representative public servants’ trade union organizations to develop a participatory management and better communication between decision-makers and trade unions. Thus, consultation with public servants’ trade unions largely took place through the state ministry responsible for public personnel issues. In addition, measures agreed during the collective negotiations between the public employers’ board and public servants’ trade unions were being implemented through the circulars of the Prime Minister’s office such as the circulars of July 2009 and January 2010 as well as through laws where necessary.

Regarding Act No. 4688 on public servants’ trade unions, the constitutional amendment would provide a new framework for public sector collective bargaining, and legislative amendments would follow the approval of the Constitution. The 10 per cent representativeness requirement would be lifted upon adoption of the draft Act on Trade Unions. In conclusion, the speaker assured the Committee that the criticisms regarding some aspects of the legislation were being addressed in the latest draft law. Consultations would continue and improvements were always possible.

The Employer members were of the view that the Government should be commended for its action in relation to the constitutional amendment, the measures to address the issue of excessive use of police force, and the statutory provisions on trade union rights. However, the constitutional provisions and the proposed legislative reforms were not yet in force. The constitutional provisions would enter into force at the soonest in September 2010 pending the outcome of the referendum. The Employer members were unclear as to when legislative amendments to Acts Nos 2821, 2822 and 4688 would be adopted. The previous proposals had not been enacted and were giving rise to problems in relation to the Convention. To its credit, the Government had acknowledged this fact and had sought to correct them. The Employer members hoped that the Government would act with the same speed in adopting the legislative amendments as with the constitutional provisions. In the meantime, the Government should provide a report on both the constitutional amendments and the legislative provisions to the Committee of Experts.

The Worker members said that, in their view, the trade union situation in Turkey was more worrying than ever. The Government should take immediate measures to end attacks on trade unionists and interference in union affairs, and to stop the use of anti-terrorism legislation for anti-union purposes. To that end, the Worker members requested the Government to accept ILO assistance in the process of reforming the Trade Union Act in order to bring it fully into line with Convention No. 87. Recalling that such a request had already been made by the Committee the previous year, the Worker members insisted that ILO assistance should be permanent and that the Government should submit a plan of action, accompanied by a precise timeline, for revising trade union legislation in consultation with the social partners. Lastly, the Government should report to the Committee of Experts on progress made before the end of the year.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the debate that followed. The Committee also noted that an ILO high-level bipartite mission visited the country from 3 to 5 March 2010, pursuant to a request of this Committee in June 2009.

The Committee observed that the Committee of Experts’ comments had been referring for a number of years to discrepancies between the legislation and practice, on the one hand, and the Convention, on the other, concerning the rights of workers in the public and private sectors without distinction whatsoever to establish and join organizations of their own choosing, and the right of workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their activities without interference by the authorities.

The Committee welcomed the Government’s statement according to which the draft law amending the Constitution was enacted on 7 May 2010. Subject to a referendum to be held in September 2010, this law would repeal or amend several provisions which restricted the right to organize. In particular, provisions prohibiting trade union membership in more than one trade union and existence of more than one collective agreement at the same workplace for the same period would be repealed; the right of public servants to bargain collectively would be recognized; a provision prohibiting political and sympathy strikes would be repealed; social and economic rights would be included in the scope of collective agreements; the right of public employees to have recourse to the judicial review of all disciplinary measures taken against them would be ensured; and the protection of personal data would be guaranteed. In addition, the Government representative referred to the 2010 May Day celebrations that took place in a fully peaceful environment. The Government had taken measures to prevent the excessive use of force by the police and had begun a training programme in this regard.

While taking due note of the information provided by the Government of the steps taken to avoid police violence and undue interference, the Committee continued to observe with regret the allegations of important restrictions placed on freedom of speech and of assembly of trade unionists, particularly in the health and education sectors.

It again recalled the importance it attached to respect for basic civil liberties and urged the Government to continue to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee urged the Government to review, in full consultation with the social partners, any legislation that might have been applied in practice in a manner contrary to this fundamental principle and to consider any necessary amendments or abrogation.

The Committee took note of the Government’s statement according to which a new draft law on trade unions had been prepared by the Government and that in light of the constitutional reform, consultations with the social partners would continue, based on a precise schedule. In this regard, the Committee urged the Government, as it did last year, to elaborate a plan of action with clear time lines to be presented to the Committee of Experts for monitoring and to engage in ongoing assistance with ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688. It requested the Government to provide detailed and complete information on all progress made on these issues and on the outcome of the constitutional reform and to transmit all relevant legislative texts, in its report due to the Committee of Experts at its meeting this year.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative recalled that, as proposed by the Conference Committee at its session in 2007, a high-level ILO mission had visited Turkey in April 2008. The members of the mission had met high-level representatives of the Ministry of Labour and Social Security, the confederations of private and public sector trade unions and the confederation of employers’ organizations. The visit had offered a very useful opportunity to observe the Government’s sincere and well-intentioned efforts to cooperate with the social partners and to obtain an accurate picture of the unique conditions of the Turkish industrial relations system in both law and practice.

He noted that the Government had undertaken the work of preparing the amendments to Acts Nos 2821 and 2822 in close cooperation with the social partners both before and after the ILO’s high-level mission. The Tripartite Consultation Board and its working group had worked intensively and the process of cooperation and consultation with the social partners had continued in the discussions on the envisaged amendments in the Parliamentary Committee and its subcommittee. A similar approach had been followed in relation to the envisaged amendments to Act No. 4668 respecting public servants’ unions. The Bill to amend Acts Nos 2821and 2822 was currently on the agenda of the plenary session of the Grand National Assembly. The text of the Bill had been communicated to the ILO, and further information would be provided when it had been enacted. However, the summer recess, local elections and a Cabinet reshuffle had delayed the enactment of the new legislation. He added that the Bill did not include amendments to the provisions relating to political, general and solidarity strikes, as this would require a constitutional amendment. Although amendments to the Constitution were not easy to achieve and required consensus in all parts of society, he emphasized that the Government was planning to introduce amendments to the Constitution.

He reported a positive development in line with the view expressed by the Committee of Experts that trade unions should be able to engage in action on social and economic issues affecting the interests of their members. In a ruling published in April 2009, the Constitutional Court had unanimously found that section 73, paragraph 3, of Act No. 2822 was in breach of the Constitution and had therefore repealed it. As a result of this ruling, which had been handed down in a case involving a work stoppage by employees protesting against a Bill respecting pensions, participation in a work stoppage aimed at influencing measures taken or contemplated by the authorities with regard to work and working conditions was no longer deemed illegal.

He provided further information about measures that had been taken or were envisaged to limit the intervention by the police during meetings and demonstrations and to prevent the excessive use of force in controlling demonstrations, rallies and marches by trade unions. He emphasized in this respect that, in the same way as all other natural and legal persons, trade unions had to comply with the relevant legislation, and particularly Act No. 2911 respecting marches and demonstrations. Activities by trade unions which did not comply with the law could not be immune from police interference, although judicial means of recourse were available to trade unions and their members to contest police action. He emphasized that the Government was determined to take all necessary disciplinary and judicial measures against members of the security forces who used disproportionate and excessive force to control demonstrations, rallies and marches. The following measures were planned for this purpose: the procurement of communication equipment placed inside the helmets of police officers; the inscription of easily identifiable numbers on their helmets; and new legislative provisions on the actions, methods and principles governing police officers assigned to control demonstrations and marches. He added that several circulars had been issued by the Office of the Prime Minister since 1997 instructing the public authorities to facilitate lawful activities by trade unions. These circulars clearly illustrated the positive attitude of the public authorities towards lawful trade union activities. This positive approach was also reflected by the approval of May Day as Labour and Solidarity Day in 2008 and as an official holiday in 2009.

However, in relation to the use of excessive force by the police, he emphasized that members of illegal organizations sometimes infiltrated trade union demonstrations and marches and attacked the security forces with stones and clubs, causing injury to members of the public and police officers, and damaging public and private properties. Nevertheless such infiltration should not be an excuse for the use of disproportionate force and police officers who resorted to using excessive force were certain to face disciplinary action and would be liable to prosecution if they transgressed their authority. He reaffirmed that the attendance of the police at trade union demonstrations and marches was entirely related to the maintenance of public order. Moreover, in accordance with Article 20 of the Associations Act, the security forces were not authorized to enter the premises of trade unions or any other organizations unless a court ruling was obtained on the grounds of maintaining public order and preventing the occurrence of criminal acts or a written instruction issued by the local Governor’s office in cases where undue delays might endanger public order.

With regard to Act No. 4688 on public employees’ trade unions, he recalled that the Ministry of Labour and Social Security had prepared a Bill in consultation with the social partners, which had been communicated to the ILO in February 2009. The Bill repealed the restrictions on the right to form and join unions by public employees during their probation period, private security guards employed in the public sector, prison guards and the highest ranking officials in public establishments employing over 100 employees. It would also remove the requirement of two years’ seniority as a public servant to be a founding member of a trade union. The Bill envisaged that the coverage of collective bargaining would no longer be confined to financial rights, but would also cover social rights, which would align it with the de facto situation. The Bill did not include the right to strike, as this would require amendments to the Constitution and an overhaul of the public personnel regime.

With reference to the right of the members of a union affected by the change of the branch of a service to be represented by a trade union of their own choosing, which mainly concerned the Yapi Yol-Sen case, he indicated that public servants had the right to form or join unions of their own choosing in the branch of activity of the institution in which they worked. The closure of an administrative unit due to restructuring and the transfer of its staff to a different unit without affecting their status as public servants could not be considered as interference in trade union matters, and indeed showed the importance attached by the Government to the job security of public servants. It was not consistent with the current system based on the principle of branch level unionization for a trade union to recruit employees working in another branch. The acceptance of such a practice would block the existing system for the determination of the authorized trade union. This was also valid for union officers whose branch of service changed. The underlying principle of the exercise of freedom of association by public servants was that they had the right to form and join trade unions of their choosing within the branch of activity of the public establishments for which they worked.

In relation to the question of suspending the term of a union officer who stood for local or general elections and the termination of the status of a union officer who was elected, he explained that, in accordance with article 82 of the Constitution, members of the Grand National Assembly could not sit on the executive boards or audit boards of unions or confederations, and that the holding of office in a public establishment was not compatible with membership of the Parliament. He added that the situation of trade union officers standing in local or general elections was governed by section 18 of Act No. 4688. Section 10 of the Act provided that union officials who failed to call a general congress in accordance with the union’s statutes or did not abide by the quorum could only be removed from office by a court decision.

When there were discrepancies between a trade union statute and the provisions of the Constitution or other Acts, the union would be required to amend its statute and, if it failed to do so, the case would be referred to the courts. However, the Ministry of Labour and Social Security did not have recourse to judicial action for the amendment of trade union statutes.

With reference to the comments of the Committee of Experts concerning section 35 of the Associations Act of 2004, he said that the provisions of the section included trade unions together with other associations within the scope of sections 19 and 26 of the Act, provided that their special law did not contain relevant provisions. Act No. 2821 concerning trade unions was a special law governing the status of trade unions, section 26 of which required associations to obtain permission from provincial and district authorities to establish and operate hostels and dormitories for the purposes of education and training. Section 95 of the Regulations respecting associations provided that the establishment and operation of hostels and dormitories for secondary and high school students was subject to the Regulation issued by the Council of Ministers in December 2004, the provisions of which applied unless they contravened the Associations Act. It was difficult to understand how the regulation of student hostels and dormitories for secondary and higher education students could be considered as interference in trade union activities. This was a purely technical matter entirely unrelated to trade union freedom and was intended to ensure the existence of the necessary conditions for the provision of these types of services.

In conclusion, he emphasized that major progress amounting to a reform had been achieved in the Bills to amend Acts Nos 2821, 2822 and 4688. He thanked the social partners for their enthusiastic participation in the process of formulating these amendments and indicated that the Government would endeavour to ensure that the Bills were enacted as soon as possible.

The Employer members thanked the Government representative for the information provided and indicated that the case raised a dilemma. Much new information had been provided regarding fundamental aspects of the case related to civil liberties and violence, as well as the measures taken to amend Acts Nos 2821 and 2822. However, the Committee was not in a position to assess this information. Although it would appear on the surface that steps had been taken in the right direction in relation to civil liberties and violence, it was not possible to make a firm determination in that respect at the present time. It might well have been expected that the proposed amendments would already have been enacted. Both the organizations of employers and workers had fulfilled their responsibilities with due diligence and the respective Bills had been submitted to the Grand National Assembly. The Government therefore needed to ensure that they were enacted as soon as possible.

They recalled that the case had been discussed by the Committee for many years. It had been examined in the 1980s and 1990s under Convention No. 98, and since the ratification of Convention No. 87 in 1993, the case had been discussed by the Committee under the latter Convention in 1997, 2005 and 2007. On several occasions in the past, the Committee of Experts had noted the action taken by the Government with interest, and even with satisfaction. At its last session, the Committee of Experts had also noted with interest and satisfaction action taken under other Conventions ratified by Turkey, but not under Convention No. 87. A high-level mission had visited the country in 2008, although progress appeared to have slowed since then. There had also been a change of government, which might give grounds for hope. Certain indications had been provided that some action was being taken, but it was difficult to assess precisely what. While the Government had undertaken to adopt the amendments referred to above as soon as possible, it was necessary to ascertain the level of commitment involved. The Government should be called upon to provide a detailed report in response to the matters raised by the Committee of Experts in order to allow a better assessment of the situation. They added that the number of issues raised in relation to the public sector showed the need for reforms in the public sector personnel system in the country. In conclusion, they noted that it was unclear whether the Government was indeed heading in the right direction, although the pace of reform had certainly slowed down.

The Worker members indicated that since 1993, the year which Conventions Nos 87, 135 and 151 had been ratified, all the elements had been in place for proper social dialogue, except the acceptance by the Government of the fact that social dialogue could effectively lead to organizations challenging government action, particularly in the areas of economic and social policy and civil rights. The Government’s dialogue on freedom of association with the Committee of Experts and the Conference Committee resembled a dialogue between deaf persons, thereby undermining the credibility of the ILO. The Committee of Experts had made a dozen individual observations, which had remained unanswered. In general, the Government paid little attention to the calls that were made, whether by the Committee of Experts, the ITUC or national unions. The application of the Convention had already been examined by the Committee in 2005–07, but not in 2008 as a high-level ILO mission had visited the country a few weeks before the Conference. The amendment of Acts Nos 2821 and 2822, in consultation with the social partners, was central to the requests of the Committee on Freedom of Association and the Committee of Experts, but the Government advanced the same arguments and promises on the occasion of each complaint. The recommendations of the supervisory bodies with a view to the implementation of Conventions were nevertheless clear. The report of the high-level mission referred to a number of statements by the Under Secretary of State for Labour and Social Security, according to which there was a consensus to amend Acts Nos 2821 and 2822, subject to the resolution of some minor issues. On the other hand, the amendment of the provisions of Act No. 2822 concerning general and solidarity strikes, occupations of the workforce and go-slows could not be made until the Constitution was amended, which was necessary for the country’s accession to the European Union. Finally, Act No. 4688 respecting the right of public employees to engage in collective bargaining was currently being reviewed in the context of the reform of the conditions of service of all public employees.

Another problem was that of anti-union practices, already raised by the Committee in 2005 and 2007. Despite the circulars issued by the Prime Minister requiring compliance by the administration with the relevant provisions of the law and non-interference in union activities, participation in a demonstration and the publication of certain information was still punishable by imprisonment. These freedoms were hampered by judicial investigations and prosecutions of trade unionists and leaders. The terrible incidents that had occurred year after year during the May Day celebrations in Istanbul were a case in point. The fact that the Government had finally recognized 1 May as a holiday did not mean that it respected the right to demonstrate. The Government argued that unions were not above the law, that they engaged in illegal activities and that they were free to take legal action in case of dispute. Admittedly, unions needed to comply with the law, but when that had the effect of depriving them of freedom of association, the problem became intractable. The arrests of trade unionists were escalating under the pretext of terrorist activities or propaganda for terrorist organizations. Education International had written to the Prime Minister protesting against the arrest of over 30 members of the trade union Egitim Sen on 28 May 2009, of whom 14 remained in prison. Just last week, the police and security forces had used extreme violence against teachers protesting to obtain guarantees of the right to bargain collectively. Egitim Sen had marched on Ankara to make this claim. On 3 June 2009, the city centre in Ankara had been surrounded by security forces and turned into a battlefield. Trade unionists had been injured. Members of trade unions in the public sector had been dismissed or transferred under totally false pretences. The unions did not have the right to include in their statutes the peaceful objectives that they deemed necessary to protect the rights and interests of their members. They did not have the right to express their views, particularly in the press, even though the full exercise of trade union rights required the free circulation of information and opinions in accordance with the principles of non-violence. With regard to the amendment of the legislation, the report of the Committee of Experts once again highlighted the pretexts put forward by the Government for failing to take action. The revision of the Constitution, which was required to resolve the issue of strikes, had not been undertaken. The revision of sections 5, 6, 10, 15 and 35 of Act No. 4688 on public employees’ trade unions, to bring them into compliance with the Convention by allowing all workers without distinction whatsoever to enjoy the right to establish and join organizations of their own choosing, still had not been carried out despite repeated requests of the Committee of Experts and the discussions that had taken place during the high-level mission. The Government would probably invoke the responsibility of trade unions for the failure of the reforms. But, while the unions had rejected the Bill amending Acts Nos 2821 and 2822, they had issued a statement on the reasons for the rejection: the refusal to allow a trade union to be dissolved for lack of information documents, the lack of guarantees of the effective right to collective bargaining and the maintenance of a series of prohibitions on the right to strike. In view of the overwhelming situation, the legal considerations raised by all the supervisory bodies and the subject under examination, it was clear that a revision of the legislation to bring it into compliance with the Convention and establish an industrial relations system worthy of Social Europe, needed to be undertaken with the social partners. Such dialogue presupposed that workers’ organizations were not simply presented with a non-negotiable text. The Worker members called for the adoption of firm conclusions against the Government.

A Worker member of Turkey said that the Bill to amend Acts Nos 2821 and 2822 which had been submitted to Parliament contained provisions abolishing some of the remaining trade union rights and freedoms. Although the Government representative had thanked the social partners for their support, the Bill had been submitted to Parliament without the support of the social partners. The Bill did not resolve the problems raised by the Committee of Experts, and indeed gave rise to new problems. Adoption of the Bill would maintain very high thresholds for the establishment of trade unions. The requirements for the establishment of trade unions, and particularly the need to organize 50 per cent plus one of the workforce in an establishment, meant that in most cases they could not exist. Moreover, there was a broad prohibition on collective bargaining in many cases. There were many ways in which the legislation was not in compliance with ILO Conventions, including the determination of branches for the purposes of collective bargaining in the public sector. Such determinations should be undertaken by a representative body. There was also a need for a statutory mediation process that could be initiated by the parties. Trade unionists should be protected against dismissal for trade union reasons through the establishment of a right to reinstatement. However, the Government had refused to discuss a proper new law to establish the rights required in compliance with Conventions Nos 87 and 98.

The Employer member of Turkey said that it was impossible to disagree with the report of the Committee of Experts on the criterion for the use of civil liberties. In this regard, while limited police intervention only in the cases where there was a genuine threat to public order was acceptable, he did not approve of the disproportionate use of force. He added that the adoption of a law in April allowing 1 May to be celebrated as the “Day of Labour and Solidarity” should be seen as a step forward. He recalled that prior to 1980, when the military regime had adopted a law prohibiting the celebration of May Day, it had been a national holiday, and that this was an important step in the democratization of Turkey. Due to this measure, the leaders of Turkish trade unions had been able to enter Taksim Square in Istanbul on 1 May 2009, and the police had not used force.

With regard to the amendments to Acts Nos 2821 and 2822, the Turkish Confederation of Employer Associations (TISK) had fulfilled its responsibilities with diligence in regard to the Bills that had been presented to the Grand National Assembly last year. The Government should be encouraged to enact these Bills, which had been prepared to align legislation with Convention No. 87. He noted that on various occasions, TISK had hosted and provided the secretariat for meetings between the Government and the social partners. The texts prepared for the Parliament were acceptable from the employers’ standpoint as they had been accepted in meetings where TISK had been present.

He added that the detailed observations in the report of the Committee of Experts concerning the union activities of public employees demonstrated the great need for a reform of the public sector personnel system. Such a reform would clarify who exercised authority for the State and who was employed in essential services. Turkish employers supported the Government’s initiatives in this respect and were prepared to collaborate with the Government in the improvement process, and expected the Government to keep its promises.

Another Worker member of Turkey recalled the significant contribution that trade unions had made in support of public sector employees. In 2001, Act No. 4688, on public employees’ trade unions, had been adopted following a long struggle by public sector employees. However, these employees continued to be subject to significant restrictions, which had been discussed in recent years at the Conference Committee. The Government had promised to remove these restrictions, but this had not been done, and currently there was no plan to amend Act No. 4688. Moreover, the draft amendments to Acts Nos 2821 and 2822 had been submitted without consensus by the social partners.

He asserted that public servants did not have the right to engage in collective bargaining, the consultations held were meaningless, restrictions were placed on union membership, the tripartite advisory system did not work and there was discrimination between trade unions and the workers were liable to be transferred if they engaged in union activities. Between 2003 and 2009, 70 union representatives had been transferred without valid reasons. Although some had been reinstated, the majority had not. Finally, he emphasized that Act No. 4688 was in violation of Convention No. 87 and needed to be amended, in consultation with the social partners and with ILO technical assistance.

Another Worker member of Turkey speaking on behalf of the International Trade Union Confederation (ITUC), recalled the military intervention in Turkey in 1980. A number of laws regulating trade union rights had been adopted by the military regime and the workers have been subjected to these laws ever since. He added that trade union laws in Turkey were not in conformity with Conventions Nos 87 and 98, and that trade unions were under strict monitoring by the Government, due to these laws. Moreover, the double threshold system prevented the exercise of the right to freely join unions and to collective bargaining: a trade union had to organize at least 10 per cent of the workers at the sectoral level, and over 50 per cent of workers at the enterprise level. Freedom of association was largely undermined by the obligation to consult a public notary for union membership and resignation. Workers therefore had to pay a public notary to certify their registration forms and make their payments. Moreover, the procedures to determine authority for collective bargaining were too complex and cumbersome, and this authority was determined by the Ministry of Labour following a lengthy trial period.

He recalled that the right to strike was very limited in Turkey, and that solidarity strikes, warning strikes and general strikes were all prohibited by law. The right to strike was prohibited by law in many sectors and the Government had the right to postpone a strike on the pretext of public health and national security.

The report prepared by the high-level mission in 2007 emphasized that the Bills still contradicted ILO Conventions. The only steps taken following this report had been unfruitful discussions and the Government refused to make the necessary amendments to the laws. Moreover, the right of assembly was heavily repressed. The May Day demonstrations in 2007 and 2008 had been attacked by the police and hundreds of trade union activists had been taken into custody. In 2008, the headquarters of the Confederation of Progressive Trade Unions of Turkey (DISK) had been attacked using tear gas and water cannons. In 2009, May Day had been announced as a public holiday, but the demonstration, in the same way as in previous years, had been marked by extreme violence, the use of tear gas and hundreds of injuries to workers. In addition, the union representing retired workers had been closed down. A week ago, the security forces had invaded and searched the headquarters of the Confederation of Public Employees Trade Unions (KESK) and over 30 members, including an executive committee member, had been taken into custody. It therefore had to be concluded that the trade union regulations were not in conformity with ILO Conventions and the Government never kept its promises on trade union laws and the dismissal of trade union members.

The Worker member of the Netherlands recalled that in 2007, when the Committee had discussed Turkey’s failure to implement Convention No. 87, it had recommended that the Turkish Government accept a high-level mission to assess the problems and recommend solutions. It had been hoped that the mission would speed up the process of adapting Turkish laws to bring them into conformity with ILO Conventions Nos 87 and 98. At first, the high-level mission had seemed to work well. The Government had consulted the social partners and submitted a new Bill to Parliament in May 2008, although the draft differed from what had been agreed by the social partners and was not in compliance with the Convention. The old legislation was still in place. The technical resources of the ILO, the Committee of Experts, the Conference Committee and the high-level mission had all been involved in discussing and analysing Turkish legislation. In addition, European institutions, such as the European Economic and Social Council, had advised the Government to enact the necessary reforms, and the European Court of Human Rights, in its judgement in the case Demir and Bakara v. Turkey had explicitly referred to Turkey’s ratification of Convention No. 87 and the need for the Government to reform its legislation to bring it into conformity with the Convention. Together, these institutions had made available significant information that made it clear which amendments were needed to bring national laws into conformity with ILO standards. Lack of understanding of what changes were necessary could not therefore be the reason for the delay.

The Government had publicly indicated that the lack of progress was due to a lack of consensus with the social partners on the proposed draft amendments. However, the Government could not use this lack of consensus as a reason for not bringing its legislation into conformity with Conventions Nos 87 and 98, as from the report of the high-level mission we could read that the trade unions had explicitly urged it to do so. The Government had attempted to justify the very slow pace of reform by arguing that some of the legislation that was in violation of the Convention was not being used in practice. Yet this argument was not convincing, as any restriction of trade union freedom set out in the law could be used. Moreover, if it was not the Government’s intention to use such restrictions, there was no valid reason for them to remain in the legislation. Indeed, the accounts by Turkish worker representatives of the recent cases of violence against trade union demonstrations and officials indicated that many of the restrictions were being used. Although the Committee of Experts had called on the Government to take measures to ensure that the police did not intervene in demonstrations that did not pose a threat to public order and to avoid excessive violence, the Government had used tear gas against a May Day meeting and had raided the offices of the KESK. Several cases of dismissal for joining a trade union had been mentioned, as well as examples of interference in the internal affairs of trade unions.

She recalled that during the first week of the Conference, the Committee had heard several statements on the importance of ILO standards in times of economic crisis. In addition, there was agreement within the Committee that ILO standards were needed to protect the most vulnerable workers from being the worst affected and to emerge from the crisis in a sustainable way. There was agreement that Convention No. 87 was the enabling standard, without which the chances of preserving and developing other standards were weakened. She noted that, prior to the crisis, Turkey had experienced relatively rapid economic growth, which was now slowing due to the crisis. The workers that had been integrated recently into this economic development risked losing their hard-won gains. Just over five per cent of workers in Turkey were covered by collective agreements, which was a very low percentage and in practice meant that less than half of the workers who were organized benefited from a collective agreement. Turkey needed to fully implement Convention No. 87 to extend the freedom to organize to its workers, so that they could defend their rights and working conditions during the ongoing economic crisis. It also needed trade unions to be full partners in social dialogue for economic recovery and future development. The limitation of the trade union rights of Turkish workers was very serious. There was no valid reason for the delay in bringing legislation into conformity with Convention No. 87. She therefore urged the Government to do so immediately.

The Worker member of the Republic of Korea expressed serious concerns with regard to the repression of basic labour rights by the Government of Turkey. Turkish labour laws were not in conformity with ILO Conventions and the Government was dragging out the process of implementing its commitment to bring them into line with ILO principles. Furthermore, the Government had repeatedly attacked workers and trade union officials through the riot police. Every May Day rally since 2007 had ended with large numbers of arrests and many injuries, and the headquarters of DISK, an ITUC affiliate, had been besieged. In this totally unacceptable situation he urged the Government to bring an end to violent actions against workers. He added that 14 members of KESK were still held in custody for exercising their trade union rights. They included 12 teachers who had been arrested at school during a class. The Government was trying to accuse them of terrorist activities, but most of them had been employed by the public service for over 20 years and there was no evidence to prove that they were linked to violent activity. He urged the Government to release them immediately and to stop criminalizing trade unions of public employees.

With regard to the limited protection against anti-union discrimination and dismissals, he indicated that, according to ITUC sources, the minimum number of employees in a workplace needed for the application of job security legislation was 30. However, as a result of subcontracting and fixed-term contracts, about 95 per cent of workplaces had fewer than 30 employees. In view of this situation, he called upon the Government to enact without delay appropriate laws to eradicate all types of anti-union discrimination and to protect workers from dismissal.

In conclusion, he drew parallels with the situation in his own country, where the police were used very frequently to prevent the exercise of the right to demonstrate and to strike, and where the Government had repeatedly ignored the recommendations of the international community, including those of the ILO and the OECD. He therefore urged the Government to give effect to ILO Conventions on freedom of association so that workers could enjoy full trade union and human rights. He also warned that social consensus would never be achieved through the use of brutal violence against trade unions.

A Government representative of Turkey thanked the members of the Committee for their constructive comments. He reaffirmed the will of the Government to proceed with the reform process. Although it had been delayed by local elections and the recent Cabinet reshuffle, the reform of labour laws was proceeding. He reaffirmed that the arrest of the unionists of KESK had been carried out in accordance with an order of the Office of the Public Prosecutor on the grounds of suspicion of terrorist activities in the context of the Kurdistan Workers’ Party (PKK), which was on the list of international terrorist organizations. He therefore emphasized that they had been arrested for illegal activities which had nothing to do with their trade union activities. He recalled in this respect that, despite the calls that had been made, governments did not have the authority to release persons who had been arrested by court order. In conclusion, he said that, although it was not possible to claim that the entire labour legislation in Turkey was in full compliance with ILO Conventions, this was due to some of the provisions contained in the Constitution. The Bills submitted to Parliament constituted very important and even radical reforms. He called on the Committee to reflect in its conclusions the fact that the draft legislation had been prepared in cooperation with employers and workers.

Another Government representative of Turkey indicated that the claims that consensus had not been reached on the Bills did not reflect reality. The social partners had participated intensely in the process of formulating the amendments, both in the Tripartite Consultation Board, which had met every month, and in the Parliamentary Committee and its subcommittees. With regard to the claims concerning anti-union discrimination, he recalled that, with its population of 70 million, Turkey had a large economy and there might be certain employers who would not let trade unions organize at the workplace. However, there were already three pieces of legislation dealing with anti-union discrimination and those responsible were liable to severe penalties. Workers who were victims of such discrimination could obtain compensation. With regard to the allegations concerning public servants, he observed that they could always appeal to their superiors and that judicial review was always available to them. With reference to trade union rallies and demonstrations, he indicated that trade unions did not have to seek prior permission for such events, and only needed to notify the Office of the Governor 48 hours beforehand. The Governor could indicate the location at which such events were to be held. For example, in Istanbul, four main squares were available for these events. However, Taksim Square had been closed for such demonstrations since 1979 for security reasons. The 2008 incidents had occurred because of the insistence of some trade unions and confederations to hold the May Day celebrations in Taksim Square. This year, a number of workers had been permitted to hold a celebration in the Square. The Government had taken the necessary measures and the event had been peaceful. He expressed the belief that the violent incidents had mostly occurred in the past as a result of infiltration by illegal organizations which had attacked the security forces. It therefore followed that the measures governing May Day celebrations were not an infringement of trade union freedoms, but that the unnecessary insistence of the trade unions to hold their celebrations in violation of the law had been the main cause of the incidents.

The Worker members expressed their concern regarding the situation that persisted in the country, as well as the sad events that had been described. Given the severity of the failings and the persistent refusal of the Government to make efforts to bring legislation into conformity with the Convention, a special paragraph was envisaged. They noted, however, that it was important to continue believing that efforts could lead to real social dialogue, based on the European model, in an atmosphere free of violence. The Government should therefore accept ILO technical assistance, as well as a bi- or tripartite high-level mission to resolve the problems that persisted despite the many discussions that had taken place on this case, particularly in the context of the high-level mission of April 2008. Vague promises were insufficient and a timetable on the planning of the measures to be taken would need to be established, in agreement with the social partners and under the aegis of the ILO. The Government would then have to provide a detailed report of the activities carried out to the Committee of Experts for its session in 2009. In this way, the case of the application of the Convention could be followed year after year and, if necessary, be included on the list of individual cases if no progress was noted. This should not give rise to problems, if, as the Government indicated, the social partners were already associated with the reform process. However, it should be noted that there had been no tripartite consultations in the public sector for over three years.

The Employer members observed that there was a lack of clarity in the present case concerning the underlying facts and the legal situation. Although it had appeared that consensus had been reached with the social partners on the Bills to amend Acts Nos 2821 and 2822, the message from the Worker members appeared to be that there was in fact no consensus. The question therefore arose as to what the actual situation was. They also recalled their previous comments concerning the difficulties in assessing the value of the initiatives that had been taken recently in relation to civil liberties and violence. The Government would need to provide a report in time to be examined at the next session of the Committee of Experts. Something was needed to stimulate action to bring the situation into compliance with the Convention. Finally, they agreed with the proposal made by the Worker members that a high-level tripartite mission should be carried out.

Conclusions

The Committee took note of the statement made by the Government representative and the debate that followed. The Committee also noted that a high level ILO mission visited the country on 28–30 April 2008, pursuant to a request of this Committee in June 2007.

The Committee observed that the Committee of Experts’ comments had been referring for a number of years to discrepanc ies between the legislation and practice, on the one hand, and the Convention, on the other, concerning the rights of workers in the public and private sectors without distinction whatsoever to establish and join organizations of their own choosing, and the right of workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their activities without interference by the authorities. The Committee noted the comments presented by both national and international workers’ organizations on the application of the Convention, particularly with respect to the violent repression of demonstrations, use of disproportionate force by the police and arrests of trade unionists, as well as government interference in trade union activities.

The Committee took note of the Government's statements according to which: work had been carried out on the amendments to Acts Nos 2821 and 2822 in close cooperation with the social partners, and that the Tripartite Consultation Board had conducted intensive work in this regard. The draft bills were on the agenda of the National Assembly. The Government also referred to consultations with the social partners on amendments to be made to the Public Employees’ Trade Unions Act. While the draft bills did not yet envisage certain requested amendments, this was because it was necessary to first amend the Constitution. The Government was also planning the necessary amendments in this regard. The Government also referred to a recent Constitutional Court judgement which found unconstitutional the provision restricting certain types of work stoppages. As regards the allegations of excessive police intervention in relation to trade union demonstrations, the Government representative stated that, while the Government was determined to take all necessary disciplinary and judicial measures against the members of the security forces who used disproportionate and excessive force, it was important that those demonstrating respected the relevant provisions of national legislation. He highlighted the important step taken by the Government in 2008 to declare May Day as a public holiday.

While noting the information provided by the Government in reply to the serious allegations made to the Committee of Experts relating to police violence and arrests of trade unionists and government interference in trade union activities, the Committee noted with concern the information provided with respect to recent mass arrests of trade unionists, as well as the allegations of a generalized anti-union climate. The Committee observed with deep regret the statements made of important restrictions placed upon the freedom of assembly and of expression of trade unionists. It once again emphasized that respect for basic civil liberties was an essential prerequisite to the exercise of freedom of association and urged the Government to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. It urged the Government to review all cases of detained trade unionists with a view to their release and to reply in detail to all the pending allegations and to report back to the Committee of Experts this year on all the steps taken to ensure respect for the abovementioned fundamental principles.

With respect to the recent draft legislation amending Acts Nos 2821, 2822 and 4688, referred to by the Government, the Committee, noting the lack of clarity as to the current situation and the extent to which consensus had been reached with the social partners in this regard, expressed the firm hope that these drafts would address appropriately all the issues raised by the Committee of Experts over the years and that the necessary measures would be adopted without further delay so that the Committee of Experts would be in a position this year to note significant progress made in bringing the law and practice into conformity with the provisions of the Convention. The Committee further called upon the Government to rapidly put forward and ensure any constitutional reforms necessary for the application of the Convention. The Committee urged the Government to elaborate a plan of action with clear time lines for finalizing the abovementioned steps. The Committee requested the Government to accept a high-level bipartite mission with the aim of assisting the Government in making meaningful progress on these long outstanding issues. The Committee requested the Government to provide detailed and complete information on all progress made on these issues as well as all relevant legislative texts, in a report to the Committee of Experts for its upcoming session in 2009.

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative informed the Committee that his presentation would be confined to the seven main points raised by the Committee of Experts in its observation. The first point concerned the exclusion of a number of public employees from the right to organize (sections 3(a) and 15 of Act No. 4688). The Committee of Experts had noted that the definition of "public servant" in section 3(a) of Act No. 4688 referred only to those who were permanently employed or had completed their probation period, which was contrary to Article 2 of the Convention. Moreover, the exceptions provided in section 15 of Act No. 4688 led, according to the Committee of Experts, to the denial of the right to organize of the judiciary, public officials in high administrative ranks and those in "positions of trust". He announced that section 4(2) of Act No. 5620 of 4 April 2007 had already amended section 3(a) of Act No. 4688 so as to allow public employees working under fixed-term contracts (referred to as "contract personnel") to join public servants' unions. Therefore, permanent employment was no longer a requirement for membership to public servants' unions. Furthermore the Tripartite Consultation Board had unanimously agreed at its meeting of 10 May 2005 to recommend the amendment of section 3(a) of Act No. 4688 so as to allow public employees to form and join unions during their probation periods.

The second point raised by the Committee of Experts concerned the criteria under which the Ministry of Labour determined the branch of activity covering a worksite, and the implications of that determination on the workers' right to form and join organizations of their own choosing. In order to deal with inter-union disputes effectively, section 60 of Act No. 2821 envisaged careful demarcations of branches of activity by taking account of the opinions of labour and employer confederations and international standards. Should a dispute arise as to which branch an establishment belonged to, the Ministry of Labour was empowered by section 4 to make the said determination upon the request of the party concerned. Therefore, the Ministry was called upon only in cases where an inter-union dispute arose, and it was possible in any case to appeal against the Ministry's decision before the courts. The draft bill on trade unions merged some branches in order to make a more rational classification and facilitate the establishment of stronger unions. As the Committee of Experts had pointed out, the establishment of broad bands of classification for the purpose of clarifying the scope of industrial level unions was not in itself incompatible with the Convention. Following the proposed broad-banding of some branches, workers would still be free to join any union established in the respective branch. Further, the criterion used by the Ministry in making the said determination was the main activity performed in the establishment and "other activities auxiliary to the main activity" were deemed to fall within the branch to which the main activity belonged.

The third point raised by the Committee of Experts concerned the overly detailed nature of the provisions of Acts Nos 2821, 2822 and 4688 on internal union affairs. In the Government's view, these provisions did not hinder the autonomy of unions, but rather were aimed at ensuring the democratic functioning of unions, protecting the rights of members and maintaining transparency in union activities. With a view to better protecting the freedom to form and join unions and simplifying and speeding up the collective bargaining process, various improvements had been envisaged in the draft bills amending Acts Nos 2821 and 2822. The Committee of Experts had noted these reform proposals with interest. Among positive developments which had already materialized, reference shall be made to the adoption in 2004 of a more liberal Associations Act No. 5253 and the replacement of Act No. 2908, as well as the enactment of a new Penal Code No. 5237 in 2005, which introduced strong penal sanctions against acts of anti-union discrimination.

The fourth point raised by the Committee of Experts concerned the removal of union executive bodies from office in case of non-observance of legal requirements and the suspension of union officers' term during candidacy in local or general elections, as well as the termination of their status of union official in case of election. Section 10 of Act No. 4688 empowered the Ministry as well as any trade union member to apply to the courts with a request to remove from office union executive bodies who had avoided holding the general congress. It should be emphasized that the Ministry's role was simply to draw attention to a possible discrepancy or contravention and that the final judgement belonged to the independent court. The rationale behind this provision was again, to protect members' rights and to safeguard democratic processes in unions. Concerning the termination of the mandate of union leaders who won in general or local elections, an amendment to article 82 of the Constitution would be required in order to enact relevant legislation on this matter.

The fifth point raised by the Committee of Experts concerned the right to strike in the public sector. Workers engaged in public services under employment contracts enjoyed the right to strike just like workers in the private sector. With respect to public servants in general however, there was no ongoing work at present on this matter. In fact, recognition of the right to strike for public servants required an amendment to the Constitution. In line with the views expressed by the Committee of the Experts, the Government was planning to launch a personnel reform in the public sector whereby "public servants" in the narrow sense of the term, i.e. those exercising authority in the name of the State, would be defined first and then carefully distinguished from other public employees. Work on this reform programme was continuing as a priority.

The sixth point concerned the restrictions on the right to strike under Act No. 2822. The draft Bill which aimed to amend Act No. 2822 envisaged the deletion from the text of certain occupations or services where strike action was not permissible. Examples were the exploration, drilling, production and distribution of petroleum, production of lignite feeding thermal power plants, urban transportation by land, rail and sea, etc. Further, the question of how a collective agreement could be reached in cases where strikes were banned in some of the establishments which would be covered by an enterprise-level collective agreement, was a disputed matter. The draft provided that an agreement reached subsequent to strike action in certain establishments would also apply to the workers of the establishment where strikes were prohibited. Limits on the number of strike pickets had been brought into the Turkish industrial relations system because the legislation strictly prohibited the use of strike replacements by the employer. On the excessively long waiting and notice period before a strike could be called, the draft Bill foresaw a simpler, faster and more flexible mediation mechanism and shortened the negotiation time considerably. The Constitution of Turkey recognized strike action only for disputes arising during the collective bargaining process and restricted certain types of actions such as strikes for political purposes and sympathy strikes; these restrictions emanated from article 54 of the Constitution, which banned such forms of industrial action.

The seventh point concerned the lawsuit against the Confederation of Progressive Trade Unions of Turkey (DISK), one of several confederations, in respect of the election of its representatives. The lawsuit had been filed against DISK on 21 June 2001. The 5th Labour Court of Istanbul had rejected the request to suspend the activities of DISK or dissolve the organization. This decision in favour of DISK had been upheld by the Court of Cassation on 22 December 2004. So a final decision had been handed down in this case.

The constitutional basis of the requirement of "ten years of active employment" in order to be elected to trade union office had already been removed in 2001. The remaining provision in section 14 of Act No. 2821 had been repealed through the adoption of Act No. 5675 of 26 May 2007.

On the progress made with regard to the draft bills, the Government representative indicated that in the meeting of the Tripartite Consultation Board held on 28 December 2006, it had been decided to carry on further work in order to identify the agreed-upon provisions as well as the items on which there was no agreement as yet between the social partners. The latest meeting was held on 29 May 2007 with the participation of the main labour and employer confederations: TISK, TÜRK-IS, HAK-IS, DISK, KAMU-SEN, KESK, MEMUR-SEN and BASK. The Minister had proposed to carry out further work jointly with the social partners in order to give the draft bills their final form before holding the general parliamentary elections in July. The proposal had not been accepted by the presidents of the confederations, who had claimed that the process of general elections, which had already begun, did not make it feasible to conduct such work. Therefore, submission of the draft bills to the Grand National Assembly would be postponed until after the finalization of the general elections. The Government representative finally thanked the ILO for its continuing support in raising labour standards in the world and in Turkey.

The Employer members recalled that this case had been discussed fairly regularly in the 1990s until 1997. After a nine year gap, it had been discussed again in 2005. The Committee of Experts had on a number of occasions noted developments in this case with satisfaction or interest, and this year again it noted with interest the draft bills amending Acts Nos 2821 and 2822. In trying to appreciate the comments of the Committee of Experts, the degree of change that constituted progress in a certain case was not always clear. While the information provided by the Government representative indicated some change, the essence of it was similar to what had already been presented before the Committee in 2005. Furthermore, the Employer members were surprised that the Government had not addressed first and foremost the comments of the Committee of Experts calling for investigations on allegations of acts of violence. They underlined in this respect that respect for civil liberties was a necessary prerequisite to the effective implementation of the Convention. They hoped and expected that the Government would provide a report to the Committee of Experts on the issues of violence. As for the draft legislation covering specific areas, it was up to the Committee of Experts to provide an appraisal. Overall, the Government seemed to be gradually heading to implementation of the Convention. It seemed however that the rhythm of reform had slowed down compared to the information provided in 2005 and there was a need for greater urgency to be placed on measures to implement the Convention because of its fundamental nature.

The Worker members thanked the Committee of Experts for their detailed analysis of the situation of freedom of association in Turkey, which was being examined this year for the tenth time since 1990. The Government was either taking its time to take action or hiding behind meaningless excuses, so as not to take effective measures to address the numerous requests made by the Committee, and it was not interested in the technical assistance of the Office. In 2006, three Turkish trade union organizations as well as the ICFTU had sent their observations to the Committee of Experts reporting interference by the authorities in internal trade union matters, repeated violations of national legislation respecting the right to strike and interference by the authorities in the formulation of trade union statutes, as well as violence by the police and further arrests of unionists during peaceful demonstrations. The Committee of Experts, however, had not examined all these issues despite the precise information provided, demonstrating how the legislative arsenal was being used to harass, threaten and imprison trade unionists. On the other hand, it had made comments on many legal questions. For example, the information sent once again by the Government on the adoption in 2004 of a new Associations Act and a new Penal Code could not be examined for lack of a translation of these new provisions. The Government had also referred once again some of the progress made in the various bills that had already been supplied to the Committee of Experts. It had nevertheless been holding consultations with the social partners on these matters for years, and the lack of real progress could only be due to either the employers or the Government. Certain problems that had been clearly identified, such as the denial of the right to establish and join trade unions of their own choosing for a number of workers in the public sector, in particular those of the Department of Justice and Security, were being ignored by the Government. The Convention, however, provided for the right of workers, without any distinction whatsoever, to establish and join organizations of their own choosing, with the sole exception being allowed for members of the armed forces and the police. Therefore, the announced legislative reform needed to conform strictly without delay to this essential principle. Furthermore, the Committee of Experts noted that the exercise of the right to strike was restricted or prohibited for public service employees; that general strikes and sympathy strikes were forbidden; that the concept of essential services was interpreted in an excessively broad manner; and that the period of notification of strikes was excessive and continued to be so in the new bill, since the envisaged reduction to 30 days was totally unsatisfactory taking into account the pressure to which workers were subjected during such periods.

It was important to analyse the numerous legal breaches in the light of the situation in the field, which had been denounced by the trade union movement, and which deserved more attention in the report of the Committee of Experts. In this respect, this year, the International Trade Union Confederation (ITUC) was considering the possibility of informing the Committee of Experts of the fact that in February 2006, 35 members of the Tekstil-DISK trade union had been dismissed by the administration of a textile factory because the union was on the verge of achieving a majority of unionized workers in the enterprise; and in September of the same year, 22 workers of a British packaging enterprise had been dismissed because of their union activities; furthermore, judicial inquiries were on some occasions conducted against trade unionists accused of having posted a union calendar. In Tuzla, in May 2006, the police had seriously injured and imprisoned a group of dockers whose contracts had been breached by a large Turkish employer who had refused to pay their wage arrears. This was a brief overview of the kinds of issues that were submitted to the Committee of Experts every year and made the case of Turkey look like a compilation of case-law by the Committee on Freedom of Association and the Committee of Experts.

The Worker member of Turkey stated that the draft bill amending the Collective Labour Agreements, Strikes and Lock-outs Act No. 2822 aimed at complying with the Convention and European Union regulations. However, the provisions in Act No. 2822 which restricted the right to bargain collectively and raised obstacles to the right to strike, continued to be in force. Under article 54 of the Constitution, political strikes, sympathy strikes, general strikes, workplace occupations, go-slow strikes, actions aiming to decrease workplace productivity and any other type of resistance were forbidden. In the new draft bill, the penalties for illegal strike action were excessive.

The right to organize and bargain collectively was a fundamental right. By virtue of Act No. 5170 of 7 May 2004 a provision was inserted in article 90 of the Constitution to the effect that in case of conflict between international treaties on fundamental rights and freedoms and domestic laws, the provisions of international treaties were to prevail. Thus, Act No. 2822 should be amended so as to be brought in line with the Convention.

Employees in the banking sector were also deprived of the right to strike on the basis of Act No. 2822 on the ground that such strikes would paralyse social life and have long-term irremediable repercussions. Unfortunately, the Government still proposed to maintain this provision in the draft bill. The Committee on Freedom of Association had made clear that the banking sector was not an essential service in the strict sense of the term and strikes in this sector should not be subject to restrictions. Moreover, the bans on strikes in the water, electricity and natural gas sectors were no longer justified as these public enterprises had been privatized due to the economic policies implemented by the Government. Thus, the definition of essential services should be reviewed and narrowed as much as possible.

The Employer member of Turkey noted that the Act of 4 April 2007 providing for the prohibition on establishing trade unions for public sector employees had been abolished, and that workers were entitled to affiliate with trade unions in the public sector. Progress had also been made via the adoption of the Act of 26 May 2007, which repealed the condition that a public official had to be employed for ten years in order to become a founding member of a trade union. The Government had also indicated to the European Union on 17 April 2007 that it undertook, in the framework of the alignment of legislation to European standards, to carry out legal amendments regarding the right to collective bargaining by the end of 2007.

He noted that, in order to realize a timely alignment of national legislation, the Government had already prepared two draft laws, on which consensus had not yet been reached; discussions were continuing on this issue. He hoped that the Government would fulfil its undertaking to the European Union and stated that the employers of Turkey were willing to assist in this respect.

Another Worker member of Turkey, as a representative of public servants' trade unions in Turkey, wished to inform the Committee about the situation of trade union rights in the public sector. Despite the ratification of several Conventions, there were many problems in law and practice. Up to 2001, public service trade unions had claimed the rights set out in ILO Conventions and had carried their activities in the absence of any legislative provisions in that respect. As a result of their struggles, limited rights had been recognized in 2001. However, there remained five main problems. Firstly, although Act No. 4688 recognized certain aspects of the right to organize of public employees, it contained many restrictions on the administration of trade unions, the right to organize protection of trade union members, the right to strike and the right to collective bargaining. Since 2002, collective bargaining between public employees' trade unions and the Public Employers' Committee had been undertaken on five occasions, but only one agreement had been concluded. The protocol signed in 2005 had not been applied in its entirety and 26 out its 34 articles, including provisions on socio-economic benefits (such as reinstatement in the case of anti-union discrimination) were not implemented by the Government. Moreover, in accordance with section 34 of Act No. 4688, the protocol did not have binding force. Secondly, the Reconciliation Board did not have any power, as its recommendations did not have legal force and had never been implemented. Thirdly, many public employees were banned from establishing or joining trade unions. Fourthly, trade union representatives suffered anti-union discrimination and although some were reinstated on the basis of court decisions, most suffered prejudice due to court delays (three to seven years). Thus, it was not enough for the Government to say that the enactment of a new Penal Code in 2005 had introduced strong penal sanctions against acts of anti-union discrimination, as it was ineffective in practice. Finally, the tripartite system established by the Economic and Social Council Act in 2001 was not working properly. The Council was supposed to meet yearly at the invitation of the Government, but the social partners had not been invited to meet since 2005. Furthermore, the decisions of the Council had not been taken seriously. He appealed for support in overcoming these serious problems and reaching a solution.

An observer representing the International Trade Union Confederation (ITUC) stated that the requirement that unions meet two membership thresholds - 10 per cent of all workers in a given branch of economic activity, and 50 per cent of all workers in a given workplace - violated the principle of freedom of association. Unions were not able to represent the interests of workers without satisfying these two prohibitive criteria. Moreover, the latter requirement meant that, in practice, 49 per cent of the workers in a given workplace could not be represented by the union of their choice.

Even where unions were able to meet these restrictive requirements, she observed that, they were further hindered by the fact that 50 per cent of the country's total economic activity was informal. As unions were required to register their members using their social insurance numbers, and most informal workers lacked such numbers, the result was the denial - to over half of the country's workforce - of the fundamental right to organize and join organizations of their choosing. The requirement that workers register their union membership in public notaries was also unduly burdensome; registration was difficult, as public notaries worked only during official working hours, and placed a financial burden on trade unions.

With respect to the right to strike, she noted that unions were prohibited from organizing sympathy strikes and that the Council of Ministers could also ban strikes in certain sectors and in certain cases. Public employees were also denied the right to strike and to collective bargaining and public service union leaders were liable to criminal charges for organizing peaceful demonstrations calling for trade union rights.

Many other violations of trade union rights persisted. For instance, the fact that the branches of activity were determined by the Labour Ministry and the fact that, although unions could take legal action against the decisions of the Ministry, court processes were very lengthy, taking between three and seven years, during which time their activities often collapsed. Despite the promises to change the trade union laws made by several Turkish governments since 1980, around one-fifth of the total members of DISK unions who had joined in the last three years had lost their jobs in the initial phase of their organizing campaigns. She expressed gratitude to DISK's brother organizations for their solidarity and support and indicated that brochures on the trade union situation in Turkey, prepared by DISK, were available for distribution to the members of the Committee.

The Worker member of Singapore observed that this was a long-standing case involving serious violations of the Convention. The basic right to organize and to bargain collectively of Turkey's workers were severely curtailed, and they had been suffering for a long time. She said that it was time for the Committee to take a long, hard look at the case and issue clear recommendations on what it wished the Turkish Government to do in order to fulfil its obligations under the Convention. It was not for lack of support that the Government was not making the necessary changes. Indeed, Turkey had received ILO technical assistance on several occasions. A report had also been prepared by the EU-Turkey Joint Consultation Committee containing many useful recommendations, none of which had been followed up. The question in essence was whether there was sufficient political will to bring about those changes; the indications up to now suggested that the political will was weak.

She observed that several Turkish laws - the Trade Unions Act, the Collective Labour Agreements, Strikes and Lock-outs, and the Public Employees' Trade Union Act - were in serious violation of the Convention. The Government had informed the Committee of Experts that draft amendments to these laws were being prepared. The Committee of Experts had in turn observed that the draft amendments contained improvements which addressed some of the questions it had raised previously. In this respect, she warned that it was too early to celebrate as she did not share the optimism of the Committee of Experts. Governments had too often indicated in the past that amendments had been submitted to the social partners for consultation, or to the legislature, only to state one or two years later, that the bills had been withdrawn as they required further consideration. She hoped that the present draft amendments would not suffer the same fate.

She noted the persistence of numerous violations of workers' rights and interference in the internal affairs of unions. The teachers' union Egitim-Sen, for instance, had been forced to delete an objective in its statutes providing for "education in the mother tongue". The union had taken this issues to the courts, and the case was now pending before the European courts. She found this requirement particularly ridiculous, as in her country it was compulsory for primary school children to learn their own mother tongues in order to preserve the nation's cultural diversity.

She stated that there were also cases pending against the DISK and some of its affiliates for allegedly violating legislation forbidding organizations to elect officials who had worked for less than ten years in the relevant sector. The right of unions to elect their officials in full freedom was a fundamental one; if the Government did not interfere with the right of employers' organizations to elect their officials, why should it interfere with the right of unions to do the same? In this regard, she called upon the Committee of Experts to request further information on the lawsuit against DISK over the election of its representatives.

Another restriction was the requirement for workers to join or resign from unions by registering with the public notary. Although this requirement had been removed for those wishing to join trade unions, it remained in place for resignation from a trade union and was therefore and obstacle for workers wishing to change and join other unions. With regard to the requirement of the presence of a Government observer at the general congresses of unions, she stated that this restriction was puzzling, as government officials ought to be occupying themselves with the challenges of economic growth. Other infringements of the Convention included the prohibition upon union officials from continuing their union work if they stood as candidates in political elections; requiring public servants to complete a "trial period" before joining a public servants' trade union; the removal of trade union leaders considered to have breached the law on union elections; and the determination of branches of economic activity by the Labour Ministry. All of these constituted serious violations and interference in union democracy.

She noted that the Government was capable of instituting changes when it so wished, as demonstrated by the reforms - including reforms on difficult and sensitive issues - it had undertaken to comply with the demands of accession to the European Union. The Government also enjoyed a majority in Parliament and was therefore in a strong position to effect change; whether it possessed the political will to implement its obligations remained to be seen.

As the Government had indicated that it intended to change the law, it would not be too difficult to declare a moratorium on the prosecution of union officials under the above laws. Such a moratorium would go a long way towards demonstrating seriousness and sincerity in wishing to comply with the Convention; she urged the Government to seriously consider this proposal. The proposed moratorium would only be a first step towards compliance. To fully comply with the Convention, the Government needed to seriously review its laws in line with the Committee of Experts' recommendations. She urged the Government to do so immediately.

The Government representative stated, with respect to the issue of anti-union violence, that Turkey possessed a law on demonstrations and marches that set out limits for such action. The country sometimes experienced political unrest, and sometimes those limits were breached; all who violated the law were subject to the same treatment, whether they were union members or not.

With regard to the draft laws, which had yet to be adopted, he stated that in their drafting the Government had sought the participation of the social partners. The Government was seeking to reach a consensus among the social partners, even in areas where they disagreed; the Ministry was in the process of tabling these laws before Parliament.

With regard to the interference in union statutes referred to by certain speakers, he stated that the model provisions existed to foster harmony and transparency in union statutes, and merely specified such matters as a union's address or the number of members; otherwise, the Government did not dictate the contents of union statutes. He stated that he had earlier addressed the other matters that were raised by certain speakers. For instance, the requirement of ten years' employment to be eligible for union office had been removed both from the Constitution and the legislation. As for the Associations Act, it had been liberalized. Under the provisions of the new Act, the requirement that a Government observer be present at unions' general assemblies had been repealed. The new Associations Act also allowed unions greater freedom to engage in international activities, such as establishing offices abroad and affiliating with international organizations. The only requirement in this respect was that due notification had to be given to provincial and district governors for the receipt of foreign aid. With regard to the prohibition on union officials seeking political office, he remarked that this stemmed from article 82 of the Constitution, which provided that trade union work was one of several types of work incompatible with the holding of political office.

With respect to the right to strike in the public sector, he stated that a significant number of public employees were working under contracts, and therefore had the same rights as employees in the private sector, including the exercise of the right to strike; the case of Turkish Airways was one such example. With regard to strike bans, he maintained that where the right to strike was denied alternative arrangements were in place, as demonstrated by the compulsory arbitration procedure that was available to such classes of workers as firefighters. The compulsory collective bargaining period with which the parties were required to comply before the right to strike could be exercised was also being shortened - the 60-day negotiation period would be shortened to 30.

Information regarding the draft laws had already been sent to the Committee of Experts. With regard to the comments of DISK on the double criteria requirement for gaining authorization to engage in collective bargaining, the Government had been willing to modify the 10 per cent requirement. However, the Turkish labour movement had refused to support the repeal of this provision, so that no consensus had been reached on this issue. Nevertheless, the draft laws lifted this requirement and would hopefully soon become law.

With respect to the informal sector, all workers working under an employment contract, whether in the informal sector or otherwise, were entitled to join trade unions; the law did not require social insurance numbers as a prerequisite for union membership. The problem was simply logistic, as the computer system used by the Labour Ministry to determine the majority status of a union could only register trade union members with their social insurance numbers. To address this matter, he urged trade unions to organize workers in the informal sector and aid them in obtaining social insurance numbers until the Ministry could modify the computer system presently in place. In addition, the requirement of registering through a public notary was in the process of being removed. He hoped that consensus would be obtained on this issue.

He asserted that the notion that branches of economic activity were determined by the Ministry was false. The process for determining such branches was provided for by law, taking into account such factors as international labour standards. With regard to the manner in which the Ministry determined which unions belonged to which branch of activity, this was explained in the Government's report and the possibility of judicial appeal against the Ministry's decision was also provided for.

On the subject of lengthy court procedures, to say that court decision took between three and seven years to be handed down was an exaggeration. Some laws set out specific periods of time for each stage of litigation, from trial to appeal. A more accurate estimate of the duration of the legal process was six to seven months.

Finally, in respect of the Egitim-Sen case mentioned by one speaker, he stated that the union concerned, against whose status a lawsuit for dissolution was filed due to a provision in its statutes regarding "education in the mother tongue", had the case dropped after having amended its statutes.

The Employer members said that the Government had confirmed the impression they had expressed at the beginning of the session that this was going to be a complicated case. A report was of course needed on the final comments that the Government representative had just made; but more was required. The Government had indicated in its final comments that if social consensus were achieved, many of the problems could be solved. The speaker emphasized, however, that social consensus did not necessarily imply compliance with international labour standards. It was urgent for the Government to clarify the provisions of the legislation, so that the Committee of Experts could clearly assess where the gaps were in the Turkish legislation in relation to the requirements of the Convention.

The Worker members expressed their frustration with the statements of the Government representative. The lack of tangible progress in this case was as obvious as it was unacceptable. The Government had announced a series of amendments to the legislation as a sign of progress. It referred to a legislative amendment, for example, under which trade union members would no longer be subject to the requirement of a minimum of ten years of employment in the same branch of activity to be eligible for management positions in the executive bodies of their trade union. This provision, which had been contained in the Constitution had been repealed, but had been maintained in the Trade Union Act on which the lawsuit against DISK was based. The exact status of these amendments was not clear, and the Committee should not simply take note of these changes. The Government needed to provide these texts for examination by the Committee of Experts so that next year the Conference Committee could assess whether any real progress had been made. The legislation that was criticized was still in force and it was incomprehensible that this case had been mentioned in the report of the Committee of Experts as a case of progress.

The Worker members said that in the absence of real progress next year they would propose that the conclusions adopted by this Committee be included in a special paragraph of its report. Furthermore, the Government should invite a high-level mission of the Office to help it take the measures necessary to rapidly bring its legislation into conformity with the Convention.

The Committee took note of the statement made by the Government representative and the debate that followed. The Committee observed that the Committee of Experts' comments referred to a certain number of discrepancies between the legislation and the Convention regarding the rights of workers and employers in the public and private sectors without distinction whatsoever to establish and join organizations of their own choosing, and the right of workers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their activities without interference by the authorities. The Committee noted that several national workers' organizations had also presented comments on the application of the Convention, including allegations of Government interference in trade union activities, police violence and arrests of trade unionists.

The Committee took note of the Government's statements according to which: section 3(a) of Act No. 4688 had been amended on 4 April 2007 so as to allow public employees working under fixed-term contracts (referred to as "contract personnel") to join public servants unions; it was launching, as a matter of priority, a personnel reform in the public sector whereby public servants in the narrow sense of the term would be defined and carefully distinguished from other public employees in respect of restrictions on the right to strike; a draft bill aimed to amend Act No. 2822 by envisaging the deletion altogether of certain occupations or services where strike action was not permissible; the lawsuit against DISK had been resolved with the final verdict issued by the Court of Cassation on 22 December 2004; the requirement of ten years of active employment as a worker in order to be elected to union executive bodies had finally been repealed by Act No. 5675 of 26 May 2007; it was proposed to continue joint work with the social partners in the Tripartite Consultation Board.

While noting the information provided by the Government concerning certain steps taken towards the fuller application of the Convention, the Committee was not clear as to the actual status or content of the recent laws to which the Government had referred. It regretted, however, that these steps were insufficient in light of the numerous occasions on which this Committee and the Committee of Experts had urged the Government to take rapid steps to bring its law and practice into harmony with the Convention.

The Committee deeply regretted that the Government had still not provided any information in reply to the serious allegations made to the Committee of Experts relating to police violence and arrests of trade unionists and government interference in trade union activities, including the banning of union-related booklets, posters, etc. The Committee emphasized that respect for basic civil liberties was an essential prerequisite to the exercise of freedom of association and requested the Government to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. It urged the Government to reply in detail to these allegations and to report back to the Committee of Experts this year on all steps taken to ensure respect for the abovementioned fundamental principles.

The Committee urged the Government to provide detailed and complete information on all pending issues, as well as all relevant legislative texts, in its next report to the Committee of Experts and expressed the hope that it would be in a position to note in the very near future that significant progress had been made in ensuring full conformity with the Convention. The Committee requested the Government to accept a high-level ILO mission with a view to assisting it in rapidly taking the necessary measures to bring its legislation into conformity with the Convention.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

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.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

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.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

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

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, by the Confederation of Public Employees’ Trade Unions (KESK) in a communication dated 28 August 2010 and by Education International (EI) in a communication dated 30 August 2010 and the Independent Confederation of Public Servant’s Trade Unions (BASK) in a communication dated 11 October 2010. The Committee requests the Government to provide its observations thereon in its next report.

The Committee notes the discussion that took place in the 2010 Conference Committee on the Application of Standards. It further notes that an ILO high‑level bipartite mission visited the country in March 2010 pursuant to a request by the Conference Committee in 2009.

Civil liberties

The Committee notes the Government’s reply to the comments previously made by the ITUC on the excessive force used by the police during public demonstrations. The Government indicates, in particular, that measures were put into effect in 2009 to prevent the use of excessive force by the police. Police officers responsible for the security of public marches and demonstrations began to receive training on the proportional use of force. About 17,000 police officers will be trained annually. The Government further indicates that, after the promulgation of May Day as Labour and Solidarity Day in 2008 and official holiday in 2009, May Day was celebrated in 2010 in Taksim square in Istanbul for the first time since its closure for meetings and demonstrations three decades ago. According to the Government, the demonstration was peaceful due to the constructive collaboration between trade unions and the security forces.

With regard to the 2007 ITUC allegation that trade unions must allow the police to attend their meetings and record the proceedings, the Government points out that, according to the Associations Act, the security forces are not authorized to enter trade union premises unless a court order is obtained on the grounds of the need to maintain public order and prevent the occurrence of criminal incidences. It further points out that a distinction between public meetings and meetings at trade union premises should be made and that any attendance at trade union public meetings by the police is entirely related to the need to maintain public order.

Regarding the setting on fire of the premises of Egitim-Sen’s branch office, the Government indicates that the security forces and the fire brigades intervened on time, three suspects were arrested and one of them was sentenced to three years of imprisonment. No trade union member was harmed.

While taking due note of the information provided by the Government on the steps taken to avoid police violence and undue interference, the Committee observes with concern the allegations of important restrictions placed on freedom of speech and assembly of trade unionists, contained in the above-noted communications from the ITUC, KESK and EI. The Committee, like the Conference Committee on the Application of Standards, urges the Government to continue to take all the necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee also urges the Government to review, in full consultation with the social partners, any legislation that might have been applied in practice in a manner contrary to this fundamental principle and to consider any necessary amendments or abrogation. It requests the Government to indicate in its next report all measures taken in this respect. The Committee also requests the Government to carry out an investigation on the allegations concerning all the cases of use of violence during police or other security force interventions and to provide information on the outcome with its next report.

Legislative issues

The Committee recalls that for a number of years it has been commenting on several provisions of Act No. 2821 on trade unions, Act No. 2822 on collective labour agreements, strikes and lockouts and Act No. 4688 on public employees’ trade unions.

The Committee notes the Government’s indication that Law No. 5982 amending the Constitution of the Republic of Turkey, enacted by the Grand National Assembly on 7 May 2010, entered into force after being approved by the electorate in the referendum held on 12 September 2010. The Committee notes with interest that, pursuant to this Law, the following provisions of the Constitution were repealed:

–      article 51(4) prohibiting membership in more than one trade union;

–      article 54(3) providing for trade union liability for any material damage caused during a strike; and

–      article 54(7) prohibiting “politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, labour go-slows, and other forms of obstruction”.

Regarding Act No. 4688 on public servants’ trade unions, the Committee further notes the Government’s explanation provided to the Conference Committee that the constitutional amendment would be followed by the relevant legislative amendments.

With regard to Acts Nos 2821 and 2822, the Committee notes the Government’s indication that a draft Law on trade unions, amending both Acts, has been prepared by a “scientific committee” appointed by the Ministry in 2009. It further notes that this draft was communicated to the ILO High-level bipartite mission, as well as to the social partners in March 2010, in the framework of the Tripartite Consultation Board. The Committee notes that the provisions of the draft Law appear to address a number of the Committee’s previous concerns. The Committee notes, in general, that the draft provisions concerning internal functioning of unions and their activities appear to be less detailed than corresponding provisions of Acts Nos 2821 and 2822, which previously gave rise to repeated interference by the authorities. Among other improvements, the Committee notes, in particular, that:

–      the procedure for establishment of a trade union appears to be simplified (section 7);

–      the notary requirement for becoming a trade union member is lifted (section 16);

–      the establishment of workplace and occupation unions is allowed (section 3);

–      a check-off facility is made available to all trade unions and the amount of trade union dues is to be determined by the organizations themselves (section 17);

–      the citizenship requirement, as well as the requirement of being actively employed in the relevant branch of activity previously imposed on trade union founders, is abolished (section 6);

–      the possibility for the Governor to appoint an observer at the general congress of a trade union is removed;

–      the draft no longer provides for sanctions of imprisonment for violation of the legislation (section 35); and

–      responsibility for suspending a strike lies with the court and not with the Council of Ministers (section 42).

The Committee notes, however, that the draft does not deal with all issues previously raised by the Committee and that no amendments to Act No. 4688 have been proposed further to those already considered by the Committee at its last session. It therefore once again draws the Government’s attention to the need to amend its legislation so as to ensure compliance with the following Articles of the Convention.

Article 2 of the Convention

–      The need to ensure that self-employed workers, homeworkers and apprentices enjoy the right to organize. In this respect, the Committee notes that section 2 of the draft Law refers to the definition of “worker” provided for in the Labour Law (No. 4857), according to which, an “employee is a real person working under an employment contract” and recalls that section 18 of Act No. 3308 (Apprenticeship and vocational training) leads to the exclusion either explicitly or in practice of these categories of workers.

–      The need to guarantee the right to organize to public employees, such as senior public employees, magistrates, civilian personnel in military institutions and prison guards (section 15 of Act No. 4688).

–      The need to ensure that persons who have been unemployed for over one year or those retired can retain their trade union membership, subject only to the by-laws of the relevant trade union (section 18 of the draft Law on trade unions).

Article 3. Election of representatives

–      The need to ensure that the decision regarding the suspension of a trade union officer’s mandate in cases where he/she becomes a candidate in local or general elections and its termination in case of election belongs to the relevant trade union (sections 22(3) and 27(3) of the draft Law on trade unions).

–      The need to repeal section 10(8) of Act No. 4688, which provides for the removal of union executive bodies in case of non-respect of requirements concerning meetings and decisions of general assemblies set out in the law.

–      The need to repeal section 16 of Act No. 4688 providing for a mandatory termination of trade union membership and duties by reason of resignation and exclusion from the public services or transfer to another branch of activity, so as to ensure the right of organizations to elect their representatives in full freedom.

–      The need to ensure that procedures and principles related to the acquisition and termination of membership are regulated by trade unions’ internal regulations or by-laws and not by the authorities (section 18(10) of the draft Law on trade unions).

Limitations on the right to strike

–      The need to ensure that cases in which strikes may be restricted or even prohibited are limited to those involving: (i) public servants exercising authority in the name of the State; and (ii) essential services in the strict sense of the term, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. With regard to the public service, the Committee recalls that section 35 of Act No. 4688, which provides for the determination and settlement of disputes by the conciliation board, makes no mention of the circumstances in which strike action may be exercised in the public service. With regard to other services, the Committee notes that, on the one hand, the draft Law on trade unions proposes to repeal sections 29–34 of Act No. 2822, which impose important limitations on the right to strike, including banning strikes in specified categories of services and, on the other, it proposes to add section 29, pursuant to which strikes may be fully or partially, permanently or temporarily prohibited by a ruling of the competent court if the strike is deemed contrary to public order or public health (section 42 of the draft Law on trade unions). The Committee considers that the term “public order” is too broad to fall within a strict definition of what may constitute an essential service.

–      The need to amend section 52 of Act No. 2822, which provides for compulsory arbitration by the High Court of Arbitration at the request of one party in disputes concerning activities and establishments where strike is prohibited and where parties have failed to come to an agreement. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is only acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, that is in the case of disputes in essential services in the strict sense of the term.

–      The need to reduce the excessively long waiting period before a strike can be called (section 27 – referring to section 23 – and section 35 of Act No. 2822).

–      The need to ensure that workers’ and employers’ associations are involved in the determination of minimum services and, in cases of disagreement, the question should be settled by an independent body (section 40 of Act No. 2822).

–      The need to repeal severe limitations on picketing (section 48 of Act No. 2822).

–      The need to ensure that no penal sanction could be imposed against a worker for having carried out a peaceful strike and that on no account measures of imprisonment could be imposed, except in cases where during a strike, violence against persons or property or other serious infringements of rights have been committed (sections 70, 71, 72, 73 (except for paragraph 3 repealed by the Constitutional Court), 77 and 79 of Act No. 2822, imposing heavy sanctions, including imprisonment for participating in unlawful strikes).

Supervision of organizations’ accounts (Associations Act No. 5253)

The Committee had previously observed that section 35 of the Associations Act of 4 November 2004 provides that certain specific sections of this Act apply to trade unions, employers’ organizations, as well as federations and confederations, if there are no specific provisions in special laws concerning these organizations. In this respect, section 19 enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours’ notice. Once again, the Committee recalls that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 19 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure that verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members.

While noting the Government’s indication that consultations with the social partners on the amendments to trade union legislation will continue until consensus is reached, the Committee regrets to observe that the Government has not provided any information with respect to the elaboration of the plan of action with clear time lines (requested by the Committee on the Application of Standards) that would allow the Committee to note significant progress in bringing the law and practice into full conformity with the provisions of the Convention. The Committee urges the Government to engage in ongoing assistance with the ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822, 4688 and 5253 and expresses the hope that the final texts will take fully into account its comments above.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, by the Confederation of Public Employees’ Trade Unions (KESK) in a communication dated 20 August 2009, by the Confederation of Progressive Trade Unions of Turkey (DISK), in a communication dated 14 May 2009, and by the Turkish Confederation of Public Workers Associations (Türkiye Kamu-Sen) in a communication dated 15 September 2009. The Committee further notes the comments made by the Turkish Confederation of Employers’ Associations (TISK) in a communication dated 2 September 2009. The Committee requests the Government to provide its observations on these comments.

The Committee notes the discussions in the Conference Committee on the Application of Standards in 2009 on the application of the Convention. The Committee notes in particular that the Committee on the Application of Standards requested the Government to accept a high-level bipartite mission with the aim of assisting the Government in making meaningful progress in relation to the long outstanding issues raised by the Committee.

The Committee notes the Government’s indication according to which a group of six persons, under the presidency of the Director-General of Labour, has been established in order to re-examine draft Act No. 2821 on trade unions and draft Act No. 2822 on collective labour agreements, strikes and lockouts.

Civil liberties

The Committee notes the Government’s reply to the comments made by the ITUC in a communication dated 29 August 2008 that referred to: (1) violent detention and arrest by the police force of trade union leaders and union members of the TÜMTIS trade union for legitimate exercise of trade union rights; (2) violent attacks on trade union members of the TÜMTIS trade union by security forces of a private enterprise; (3) violent repression during a teachers demonstration on 26 November 2005, arrest and prison sentences against ten trade union leaders of unions affiliated to KESK; (4) setting on fire of the trade union premises of Egitim-Sen’s branch office on 4 March 2007; (5) public authorities interference on the statutes of public sector confederation KESK and its affiliates; and (6) closing down of the Turkish trade union of retirees (EMEKLI-Sen) on 19 September 2007. Concerning the allegations of violence against trade unionists and prison sentences, the Government indicates that according to article 34 of the Constitution, everyone has the right to organize meetings and demonstrations without permission provided that they are non-violent. Moreover, it refers once more to Law No. 2911 on Meetings and Demonstrations that provides for the right of meetings and demonstrations, responsibilities, circumstances of prohibition and penalties. Besides, Circular No. 2005/14 of the Prime Minister, already referred to by the Government, states that press statements made by union leaders are not subject to disciplinary proceedings and provides for facilities for meetings and demonstrations organized according to Law No. 2911. The Committee observes that the Government provides general indications as to the allegations concerning violence exercised by the police force. In this regard, while appreciating the important step taken by the Government in 2008 to declare May Day a public holiday, the Committee notes that the recent comments from the ITUC, DISK and KESK refer to new cases of recourse to violence by the police force during May Day celebrations in 2009. The Committee recalls that in previous comments it had taken note of similar allegations and it had raised the issue of measures to give the police adequate instructions so as to ensure that police intervention is limited to cases where there is a genuine threat to public order and to avoid the danger of excessive violence in trying to control demonstrations. The Committee wishes to refer to the conclusions of the Conference Committee on the Application of Standards in 2009, when it took note of the Government’s indication that it was determined to take all necessary disciplinary and judicial measures against the members of the security forces who used disproportionate and excessive force, but that it was important that those demonstrating respected the relevant provisions of national legislation. The Committee on the Application of Standards emphasized in this regard, that respect for basic civil liberties was an essential prerequisite to the exercise of freedom of association and urged the Government to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee requests the Government to provide information in this respect. Moreover, the Committee requests once again the Government to respond to the comment formulated by the ITUC in 2007 that trade unions must allow the police to attend their meetings and record the proceedings. The Committee also requests the Government to carry out an investigation on the allegations concerning all the cases of use of violence during police or other security force interventions and to indicate any developments in this respect.

With respect to the allegations concerning the interference by the Government on the statutes of public sector confederations and trade unions, the Government indicates that these confederation and trade unions refer in their statutes to “collective bargaining”, “collective dispute” and “strike”, which are not applicable to public sector trade unions because of a Constitutional restriction; they should instead refer, according to the Government, to “collective negotiations”. The Committee recalls that Article 3 of the Convention provides for the right of workers’ organizations to draw up their constitutions (statutes) and rules. In order for this right to be fully guaranteed, the Committee believes that two basic conditions must be met: firstly, national legislation should only lay down formal requirements as regards trade union constitutions; and secondly, the constitutions and rules should not be subject to prior approval at the discretion of the public authorities (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 109). The Committee further recalls that the prohibition of strikes is only acceptable in the case of public servants exercising authority in the name of the State and essential services in the strict sense of the term and that trade unions representing public servants who are not engaged in the administration of the State should be able to engage in collective bargaining on behalf of their members, as one of the fundamental activities in which trade unions are involved. The Committee recalls that under Article 8 of the Convention, while trade unions are expected to respect the law of the land, this law should not be such as to impair the guarantees provided for in the Convention. The Committee requests the Government to refrain itself from all intervention with respect to the right of trade unions to draw their own statutes, especially when, like in the present case, they provide for trade union rights that are in conformity with the principles enshrined in Conventions Nos 87 and 98 ratified by Turkey. The Committee requests the Government to indicate any developments in this regard.

With respect to the alleged closing down of the EMELKLI-Sen on 19 September 2007, the Government indicates that only employees and employers have the right to establish unions and senior organizations without permission and that there is no provision in Acts Nos 2821 and 2822 concerning the retired persons in these laws, who may, however, organize in the form of an association. The Committee recalls that the legislation should not prevent the trade union organizations and associations from affiliating retirees if they so wish, particularly when they belong to the activity represented by the union.

The Committee further notes that the Government does not provide any information concerning the setting on fire of the premises of Egitim-Sen’s branch office. The Committee recalls that attacks against trade unionists and trade union premises and property constitute serious interference with trade union rights. Criminal activities of this nature create a climate of fear which is extremely prejudicial to the exercise of trade union activities. The Committee requests the Government to carry out an appropriate investigation on these events and to provide information in this respect.

Legislative issues

The Committee recalls that for a number of years it has been commenting upon several provisions of Act No. 2821 on trade unions, Act No. 2822 on collective labour agreements, strikes and lockouts and Act No. 4688 on Public Employees’ Trade Unions. The Committee notes the copies of draft bills amending Acts Nos 2821, 2822 and 4688 submitted by the Government. The Committee had taken note in its previous observation that the Bills amending Acts Nos 2821 and 2822, after having been consulted with the social partners who reached consensus on some issues, were submitted to the Turkish Grand National Assembly on 27 May 2008. In this regard, the Committee on the Applications of Standards took note of the Government’s indication that the Tripartite Consultation Board had conducted intensive work in this regard. The Committee notes, that these Bills contain some improvements in the application of the Convention with respect to the following provisions (some of which the Committee had already taken note of in previous comments):

–           The condition of the Turkish citizenship to be a founding member and for the election of trade union officers (sections 5 and 14 of Act No. 2821) has been removed.

–           The possibility for the governor to appoint an observer at the General Congress of a trade union (section 14(1), of Act No. 2821) has been removed.

–           The condition of the certification of the notary public for the membership registration form and for the notice of resignation (sections 22(2) and 25(2) of Act No. 2821) has been removed.

–           The definition of public servant includes those occupied in a post or in a contractual employee position other than that of a worker in the public establishments and institutions, including public servants under probation (section 3(a) of Act No. 4688).

Furthermore, the Committee notes the Government’s indication in its reply to the Committee on the Application of Standards, that the Constitutional Court found that section 73(3), of Act No. 2822 was in breach of the Constitution and had therefore repealed it.

However, a reading of the draft bills reveals that a number of concerns raised by the Committee remain valid with respect to their conformity with:

Article 2 of the Convention

–           The need to ensure that the self-employed workers, homeworkers and apprentices enjoy the right to organize as section 2 of Act No. 2821 and section 18 of Act No. 3308 (Apprenticeship and Vocational Training) lead to the exclusion either explicitly or in practice of these categories of workers.

–           The exclusion from the right to organize of a number of public employees (such as senior public employees, magistrates, civilian personnel in military institutions and prison guards, section 15 of Act No. 4688). According to the ITUC and KESK, almost 450,000 public employees are deprived of their right to organize due to this provision.

–           The prohibition concerning the establishment of trade unions on an occupational or workplace basis (section 3 of Act No. 2821 and section 4 of Act No. 4688).

–           The criteria under which the Ministry of Labour determines the branch of activity covering a worksite (as unions must be constituted on a branch of activity basis) and the implications of such determinations on the workers’ right to form and join organizations of their own choosing (section 4 of Act No. 2821).

–           The criteria under which the Ministry of Labour determines the branch of activity in the public sector and the implications of such determination on the workers’ right to form and join organizations of their own choosing taking into account that unions have to be constituted on a branch of activity basis (section 5 of Act No. 4688 as well as the Regulation on the Determination of Branch of Activity of Organizations and Agencies). In this respect, the Committee has already taken note of Case No. 2537 based in a complaint from Yapi Yol Sen in which the trade union alleged that due to the closure of an administrative unit (General Directorate of village affairs) which belonged to the branch of “Public works, construction and village services” its personnel was transferred to the local administration and therefore to the branch of “local governments” which meant that Yapi Yol Sen automatically lost its membership and had to face financial difficulties as well as the fact that trade union officers lost their office pursuant to section 16 of Act No. 4688.

Article 3 of the Convention

–           The detailed provisions of Acts Nos 2821, 2822 and 4688 in respect to the internal functioning of unions and their activities that lead to repeated interference by the authorities.

–           The provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37(3)).

–           The removal of union executive bodies in case of non-respect of requirements set out in the law (section 10 of Act No. 4688).

–           The termination of trade union office by reason of the transfer of a trade union leader to another branch of activity, or his/her dismissal or simply the fact that a trade union leader leaves the work (section 16 of Act No. 4688, this issue was also dealt with by the Committee on Freedom of Association in Case No. 2537 concerning Yapi Yol Sen, mentioned above).

Severe limitations to right to strike

–           Prohibition of strikes for political reasons, general strikes and sympathy strikes (section 25 of Act No. 2822 and article 54 of the Constitution). The Government had indicated that this issue was not included in the reform as it required a constitutional revision. In this regard, the Committee calls upon the Government to rapidly put forward and ensure the necessary legal and constitutional reforms for the application of the Convention.

–           Prohibition of strike in many services which cannot be considered to be essential in the strict sense of the term (production of coal for water, electricity, gas and coal power plants, exploration, production and distribution of natural gas and petroleum; petrochemical works, banking and public notaries, land, sea, railway urban public transportation and other public transportation on rail, chemists shops, pharmacies, educational and training institutions) and compulsory arbitration in services where strikes are prohibited (sections 29, 30 and 32 of Act No. 2822). The Committee recalls that in these services, rather than a prohibition, the establishment of a minimum service could satisfy both the workers and the public interest.

–           The possibility for the Council of Ministers to suspend for 60 days a lawful strike for public health and national security reasons and then to refer the matter to compulsory arbitration, if the parties have not been able to reach a settlement upon the expiry of the suspension period (section 33 of Act No. 2822). The draft Bill provides for the advisory opinion of the High Board of Arbitration (a tripartite body), however, the Committee considers that the responsibility for suspending a strike should lie with an independent body which has the confidence of all the parties concerned.

–           Excessively long waiting period before a strike can be called (section 27 – referring to section 23 – and section 35 of Act No. 2822).

–           Minimum services are determined by the regional directorate of the Ministry of Labour and Social Security. The Committee considers, however, that minimum services should be determined with the participation of workers’ and employers’ associations involved and, in case of disagreement, the question should be settled by an independent body and not by the Ministry of Labour and Social Security (section 40 of Act No. 2822).

–           Severe limitations on picketing (section 48 of Act No. 2822); although the draft Bill has eliminated the prohibition for the trade unions to provide shelter to those workers in the picket, other restrictions subsist.

–           Heavy sanctions, including imprisonment for participating in unlawful strikes, the prohibition of certain of which however, is contrary to the principles of freedom of association (sections 70, 71, 72, 73 (except for paragraph 3 repealed by the Constitutional Court), 77 and 79 of Act No. 2822 (although section 79 has been modified in the draft, it still provides for fines to those who write posters or signs in workplaces on strike)). KESK refers to concrete cases of trade unions and union members sanctioned for having participated in a strike.

–           Section 35 of Act No. 4688 that provides for the determination and settlement of disputes by the conciliation board, makes no mention of the circumstances in which strike action may be exercised in the public service. The Committee recalls that restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term.

The Committee requests the Government to indicate the current situation of the Bills amending Acts Nos 2821, 2822 and 4688 and the extent to which consensus has been reached with the social partners in this regard. The Committee expresses the hope that the final texts will take fully into account its comments and that it will be in a position of noting progress.

Associations Act (supervision of organizations’ accounts)

The Committee had already observed that section 35 of Associations Act No. 5253 of 4 November 2004 provides that certain specific sections of this Act apply to trade unions, employers’ organizations, as well as federations and confederations, if there are no specific provisions in special laws concerning these organizations. In this respect, section 19 enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours’ notice. Once again, the Committee recalls that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee requests the Government once again to indicate in its next report the measures taken or contemplated to amend sections 19 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure that verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members.

The Committee regrets to note that the Government has not provided any information with respect to the elaboration of the plan of action with clear time lines (requested by the Committee on the Application of Standards) that would allow the Committee to note significant progress in bringing the law and practice into full conformity with the provisions of the Convention. The Committee requests the Government to accept the high-level bipartite mission suggested by the Conference Committee with the aim of assisting the Government in making meaningful progress on these long outstanding issues. The Committee considers that this kind of mission would be particularly useful taking into consideration the Government’s indication to the Conference Committee that some legislative changes required a constitutional amendment.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 2 and 3 of the Convention. In its previous comments, the Committee had raised the need to amend several provisions which prevented the free exercise of the rights under Articles 2 and 3 of the Convention and in particular:

–      Section 2 of Act No. 2821 and section 18 of Act No. 3308 which lead to the exclusion from the right to organize (either explicitly or in practice) homeworkers, contract personnel and apprentices. The Committee notes that according to the Government, Act No. 2821 does not contain such exceptions and defines workers as those working under a contract of employment (article 2), recognizes the right to organize of the workers (article 20) and exempts only military personnel from the right to form and join trade unions (article 21). Apprentices are considered as students in a special law. With regard to homeworkers, the Committee recalls from its previous comments, going as far back as 2001, that based on comments by various workers’ organizations, the definition of workers in Act No. 2821 excludes homeworkers in practice. The Committee considers more generally, that the criterion for determining the persons covered by the right to organize should not be based on the existence of an employment relationship, which is often non-existent, for example in the case of self-employed workers and vulnerable groups of workers like homeworkers. The Committee also recalls that section 18 of Act No. 3308 prohibits apprentices from joining organizations. The Committee requests once again the Government to indicate in its next report the measures taken or envisaged so as to ensure that the self-employed workers, homeworkers and apprentices enjoy the right to organize, in accordance with Article 2 and to provide statistical data in this regard. The Committee hopes that this issue will be addressed in the Bill to amend Acts Nos 2821 and 2822 currently before Parliament and requests the Government to indicate the provisions adopted in its next report.

–      Section 5 of Act No. 2821 which provides that a worker must be a Turkish citizen in order to be a founding member of a union; section 22(3) and section 25(2)(c) of Act No. 2821, according to which a number of formalities, and in particular the intervention of a public notary, are required to become a member of a trade union or to resign from it. The Committee hopes that these issues will be fully addressed in the draft Bill to amend Acts Nos. 2821 and 2822 currently before Parliament and requests the Government to indicate the provisions adopted in its next report.

–      Section 3 (d) of Act No. 2821 and section 4 of Act No. 4688 which impose restrictions on the level of trade union representation. The Committee notes that according to the Government, the social partners in Turkey are in general agreement on the basic parameters of the industrial relations system such as branch-level organizations and enterprise and workplace-level collective bargaining, which has been in place for two and a half decades. After the proposed amendments to the legislation, it will continue functioning smoothly and in line with ILO standards. Recalling that the right to join the organization of one’s own choosing includes the free determination of the level of representation, the Committee requests once again the Government to indicate measures taken or contemplated to repeal the prohibition concerning the establishment of trade unions on an occupational or workplace basis in section 3 of Act No. 2821 and section 4 of Act No. 4688.

–      Sections 33 and 34 of Act No. 2822 which establish the power of the Council of Ministers to suspend for 60 days a lawful strike for public health and national security reasons and then to refer the matter to compulsory arbitration, if the parties have not been able to reach a settlement upon the expiry of the suspension period (appeals can be lodged with the Council of State). The Committee had noted that according to the Government, the draft bill amending Act No. 2822 modifies section 33 in order to provide for the advisory opinion of the High Board of Arbitration (a tripartite body), rather than the Council of State, before the suspension is decided by the Council of Ministers. The Committee once again notes that the responsibility for suspending a strike under section 33 should lie with an independent body which has the confidence of all the parties concerned. In these circumstances the Committee requests the Government to indicate measures taken or contemplated to amend section 33 of Act No. 2822 accordingly.

Article 5. In its previous comments, the Committee requested the Government to provide information on the practical application of section 3(g) of Act No. 4688, according to which a confederation must be constituted of at least five unions from different sectors and to amend it in case it restricts the right of public employees’ unions to join confederations of their own choosing, including those which also group together organizations from the private sector. The Committee notes from the Government’s report that private and public sector confederations of trade unions often come together under umbrella entities as the one called “labour platform”. The Committee takes note of this information.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee takes note of the report of the High Level ILO Mission which visited the country on 28–30 April 2008, pursuant to a request by the Conference Committee on the Application of Standards in June 2007.

The Committee notes the Government’s report which contains, inter alia, a reply to the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2008 (forwarding a communication by TURK-IS dated 12 August 2008). It also notes the Government’s reply to the ITUC communication dated 28 August 2007 (Government communications dated 9 January, 28 March and 17 June 2008) and the communication of the Confederation of Public Employees Trade Unions (KESK) dated 31 August 2007 (Government communication dated 9 January 2008).

The Committee also notes the comments made by the ITUC in a communication dated 29 August 2008, the KESK in a communication dated 1 September 2008 and the Confederation of Progressive Trade Unions of Turkey (DISK) dated 2 September 2008. The Committee requests the Government to provide full observations on these comments.

Civil liberties. In its previous comments, the Committee, taking note of several communications by workers’ organizations referring to violent repression of peaceful demonstrations, raised the issue of measures to give the police adequate instructions so as to ensure that police intervention is limited to cases where there is a genuine threat to public order and to avoid the danger of excessive violence in trying to control demonstrations. The Committee had noted in this context that according to Circular No. 2005/14 published on 2 June 2005 (Official Journal No. 25883), the representatives of public service trade unions and confederations at the province or district level, as well as the officers of trade union and confederation branches, will not face disciplinary proceedings by reason of press statements made in the exercise of their trade union activities outside the scope of their functions as public servants. Moreover, their activities (meetings and demonstrations) organized under the provisions of the Act on Meetings and Demonstrations No. 2911 will be facilitated. In addition, various other circulars of the Prime Minister order the administration to observe the relevant provisions of the legislation and not to obstruct union activities (circulars dated 6.6. 2002, 12.6.2003 and 2.6.2005).

The Committee notes that TURK-IS, in a communication forwarded through ITUC, refers to the decision to prohibit workers from entering Taksim Square in Istanbul on May Day 2008, due to security reasons and to a violent repression of a peaceful demonstration by the TURK-IS affiliated Food, Beverage, Tobacco, Alcohol and Allied Workers’ Union (TEKGIDA-IS) on 19 February 2008. The Committee also notes that KESK refers to disproportionate force used by police on May Day 2008 against the workers who had gathered in front of the DISK offices in order to take part in the abovementioned demonstration organized by the three major confederations, TURK-IS, DISK and KESK. The Committee notes moreover that the ITUC and KESK refer to several instances of restrictions of trade union activities, especially demonstrations and publications, including through prison sentences, judicial inquiries opened and proceedings instituted against trade union members and officials. With regard to the public sector in particular, the ITUC refers in its 2007 comments to interference in the activities of public sector trade unions by the Government as employer. In particular, according to the ITUC, in the course of 2006, 15 public employees were transferred, 402 were subjected to “disciplinary inquiries”, four were given prison sentences, 131 were prosecuted in court and nine were fined; in 14 different workplaces, the unions were prevented from using their offices, and in three other cases, union offices were emptied by force during legitimate trade union activities. ITUC adds that unions must obtain official permission to organize meetings or rallies and must allow the police to attend their events and record the proceedings.

The Committee notes from the Government’s report that trade unions are not above the law and should respect the provisions of the national legislation, in particular, the Act on Meetings and Demonstrations No. 2911 as every other natural or legal person. Unlawful activities of the trade unions totally disrespecting the provisions of the applicable legislation cannot claim protection against police interference. Furthermore, judicial means of recourse are available to the trade unions and their members to contest both the actions of the police and the constitutionality or compliance of the provisions of the national legislation with international human rights instruments to which Turkey is party and which prevail over the national legislation (article 90 of the Constitution). The Government also provides data according to which trade unions conducted 1,247 activities in the first five months of 2008 and all these activities, except two, were conducted lawfully and ended in general without any incident. In reply to the comments made by the ITUC in 2007, the Government indicates that out of 1,149 activities organized by KESK in 2006, 66 persons had been taken into custody as a result of five meetings; out of 722 activities in the course of 2007 and until October of that year, 12 persons had been taken into custody as a result of one meeting. The Government adds that all the cases of violent suppression of demonstrations and strikes by the police reported by the ITUC (including a protest organized by KESK on 30 May 2006 referred to in the Committee’s previous comments) did not concern peaceful demonstrations and that the trade union leaders and members resisted and attacked the police, causing injuries; the police used force partly and gradually exercising the authority vested in it by the law. The Government finally indicates that unions do not have to obtain prior permission to organize meetings or rallies but rather, as provided in section 10 of Act No. 2911, should submit a notification signed by all the members of the organization committee to the provincial or district governor’s office 48 hours before the meeting. The Committee requests the Government to respond to the comment by ITUC that trade unions must allow the police to attend their events.

The Committee recalls that trade union rights include the right to organize public demonstrations, especially to celebrate May Day, provided that the trade unions respect the measures taken by the authorities to ensure public order. At the same time, the authorities should strive to reach agreement with the organizers of a demonstration to enable it to be held without disturbances and should resort to the use of force only in situations where law and order is seriously threatened; the intervention of the forces of order should be in due proportion to the danger to law and order that they are attempting to control.

The Committee requests the Government to indicate in its next report any proceedings instituted and decisions rendered in relation to the exercise of trade union activities, as well as any additional measures taken or contemplated with a view to ensuring that police intervention in demonstrations is limited to cases where there is a genuine threat to public order and avoiding the danger of excessive violence in trying to control demonstrations.

Draft bills. The Committee has been commenting for a number of years  on draft bills to amend Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strike and lockout. In its previous observation, while taking note of the improvements made to the draft bills amending Acts Nos 2821 and 2822, the Committee had requested the Government to indicate in its next report a specific timetable for the adoption and enactment of the draft bills amending these Acts in respect of the following issues: (i) the criteria for determining the branch of activity covering a worksite (unions must be constituted exclusively on a branch of activity basis); (ii) several detailed provisions in respect of the internal functioning of unions and their activities; (iii) severe restrictions of the right to strike (limitations on picketing; prohibitions and compulsory arbitration going beyond essential services in the strict sense of the term; excessively long waiting period before a strike can be called; heavy sanctions including imprisonment for participating in “unlawful strikes” the definition of which goes beyond what is acceptable under the Convention; prohibition of political strikes, general strikes and sympathy strikes).

The Committee notes from the Government’s report that pursuant to the 2008 High-Level ILO Mission and as a result of several meetings held within the framework of the Tripartite Consultation Board and its Working Group, two draft bills amending Acts Nos 2821 and 2822 were amalgamated into one draft bill and submitted to the Parliament (Turkish Grand National Assembly) on 20 May 2008 by a group of Members of Parliament belonging to the Government Party. The Parliamentary Committee on Health, Family, Labour and Social Affairs reviewed and amended the draft text from 23 to 24 May 2008 with the active participation of the social partners and submitted the draft bill to the Turkish Grand National Assembly on 27 May 2008. The text of the bill will be duly communicated to the ILO when enacted into law.

The Government adds that legislative provisions that were reported on previous occasions as requiring prior constitutional changes – i.e., section 25 of Act No. 2822 prohibiting strikes for political purposes, general strikes and sympathy strikes as well as the prohibition of occupation of work premises, go-slow strikes and other forms of obstruction provided for in article 54 of the Constitution – were not included for amendment in the draft bill.

The Committee notes with interest from the report of the High-Level ILO Mission, that there was consensus among the social partners and the Government on some amendments to be made to Acts Nos 2821 and 2822 so as to respond to the comments of the ILO supervisory bodies. The Committee notes with interest that a Bill amending Acts Nos 2821 and 2822 was introduced in Parliament on 27 May 2008. The Committee also recalls that the Conference Committee emphasized in 2007 the need for rapid steps to bring the law and practice into harmony with the Convention. The Committee requests the Government to indicate progress made in relation to the enactment of the Bill amending Acts Nos 2821 and 2822 and to communicate the relevant text so that the Committee may examine its conformity with the Convention. The Committee expresses the firm hope that the bill in question will fully take into account the consensus noted by the High-Level ILO Mission, as well as the comments previously made by the Committee with a view to bringing national law and practice into conformity with the Convention.

With regard to the prohibition of political strikes, general strikes and sympathy strikes which according to the Government, are not included in the reform as they require a constitutional revision, the Committee once again recalls that trade unions should be able to stage action in support of social and economic matters affecting their members’ interests, as well as sympathy strikes provided the initial strike they are supporting is itself lawful, and requests the Government to continue to indicate steps taken or contemplated to enable trade unions to take such action.

The Committee has been commenting for a number of years on a draft bill to amend Act No. 4688 on Public Employees’ Trade Unions (as amended by Act No. 5198). The Committee notes that according to the Government, consultations were held with the social partners but no information is provided on a timetable for the adoption of this Bill. The Committee requests once again the Government to transmit a copy of the current text of the draft bill to amend Act No. 4688.

Furthermore, the Committee recalls that for a number of years it has been referring to the following:

The exclusion from the right to organize of a number of public employees including public employees under probation (section 3(a) of Act No. 4688), prison guards, civilian personnel in military installations, senior public employees, magistrates, etc. (section 15 of Act No. 4688) amounting, according to the previous and latest communication by KESK, to 500,000 public employees; furthermore, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union. The Committee notes that according to the Government, it is envisaged to lift the prohibition of trade union membership for the civilian personnel of the Ministry of Defence and the police as well as the prison guards. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so that, in the framework of the legislative reform under way, all workers, without distinction whatsoever, with the only possible exception contained in Article 9 of the Convention, are guaranteed the right to establish and join organizations of their own choosing.

The criteria under which the Ministry of Labour determines the branch of activity in the public sector and the implications of such determination on the workers’ right to form and join organizations of their own choosing. The Committee notes that according to the Government, the branches of activity determined in section 5 of Act No. 4688 are only 11 and therefore, they are not “narrow” and “leading to excessive fragmentation of trade unions in the public sector”, as previously indicated by the Committee. This criticism, which is based on the complaint of Yapi Yol Sen [see the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2537 (347th Report, paragraphs 1–26)], stems from the closure of an administrative unit (General Directorate of Village Affairs) which belonged to the branch of “Public works, construction and village services” and transfer of its personnel to the local administration and therefore, the branch of “Local governments”. Public servants exercise their right to organize according to the branch of service to which the public institution in which they work belongs and have the right to form or join organizations of their choice established in the relevant branch of service. Closure of an administrative unit within the framework of an administrative restructuring and transfer of its personnel to other units because of their status under public law rather than making them redundant, should not and cannot be considered as unilateral interference by the Government in trade union activities. Many trade unions have been established in the branches of services; for example 16 trade unions exist in the branch of education and the smallest number of trade unions in a branch is five.

The Committee takes due note of the Government’s comments concerning the number of branches of activity and the reasons for the particular change in branch as a result of an administrative restructuring. It regrets, however, the consequences of this transfer for the free exercise of the right to organize of the public servants in question who automatically lost their membership in Yapi Yol Sen, leading the union to face financial difficulties, as well as the fact that trade union officers automatically lost their office. It notes that the difficulties in this case arise from the fact that one branch in particular concerns an administrative authority, i.e. “Local governments”, while the other branches are thematic e.g. “Public works, construction and village services”, “Education”, etc.). Thus, the trade union membership was automatically lost, although the members continued to perform the same tasks under a different administrative authority. The Committee therefore once again requests the Government to provide in its next report information on steps taken or contemplated so as to:

(i)    amend section 5 of Act No. 4688, as well as the Regulation on the Determination of Branch of Activity of Organizations and Agencies, which determine the branches of activity according to which public employees’ trade unions may be established, so as to ensure that these branches are not restricted to any particular ministry, department or service, including local governments;

(ii)   amend the Regulation of 2 August 2005 (which amends the Regulation on the Determination of Branch of Activity of Organizations and Agencies) so as to maintain Yapi Yol Sen members within the branch of activity entitled “Public works, construction and village services” in conformity with the nature of their functions and their willingness to remain affiliated to Yapi Yol Sen; more generally, the Committee requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2 of the Convention,

(iii) amend section 16 of Act No. 4688 so as to ensure that trade union office is not terminated by reason of the transfer of a trade union leader to another branch of activity, or his/her dismissal or simply the fact that a trade union leader leaves the work.

Detailed provisions of Act No 4688 in respect of the internal functioning of unions and their activities. The Committee notes the comments made by the KESK and ITUC in their 2007 and 2008 communications with regard to repeated interference by the authorities into the statutes of the KESK and five of its affiliates (Egitim Sen, Kültür-Sanat Sen, ESM, Haber-Sen and SES) so as to make these trade unions amend their aims as stated in their statutes, with regard to terms such as “collective bargaining”, “collective agreement”, “job security”, “collective dispute” which are being considered as contrary to Act No. 4688; in 2006, Egitim Sen had to amend its statutes by eliminating reference to “the right to receive education in one’s mother tongue”, in order to avoid being dissolved.

The Committee notes that, according to the Government, internal rules of trade unions and confederations are a source of legal obligations and therefore, all the members are expected to abide by them. Thus, they are examined on the basis of the provisions of the Constitution, the Civil Code, the Associations Act, Acts Nos 2821 and 4688. The control is carried out after each general assembly and this makes it possible to observe the contradictions even if they had not been previously noticed. In case of divergences from the legal provisions, the workers’ organizations are requested to harmonize the provisions. Consequently, it would not be appropriate to interpret this type of control as pressure exercised on unions. Terms like “collective bargaining”, “strike” etc., are not criticized as long as these activities do not take place in practice. With regard to Egitim Sen in particular, the Government indicates that by reason of the statement in the statute of this union demanding education in one’s mother tongue, a criminal complaint was filed by the Chief Public Prosecutor’s Office claiming breach of articles 3 and 42 of the Constitution and a case for dissolution was filed in the Ankara Labour Court. In the decision of the said court dated 27 October 2005, it was found that this provision of the statute is contrary to the Constitution which provides that the Republic of Turkey is a unitary State and an indivisible entity with Turkish as its language and that no language other than Turkish shall be taught as the mother tongue to Turkish citizens at any institutions of training or education. Egitim-Sen amended its statute and the case against it was dropped. Trade unions should carry out their activities in loyalty to the Constitution.

The Committee recalls once again, that trade unions should have the right to include in their statutes the peaceful objectives that they consider necessary for the defence of the rights and interests of their members and that legislative provisions which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. With regard to the inclusion of terms like “collective bargaining” and “strike” in the statutes of public sector trade unions, which according to the Government are allowed as long as these activities do not take place in practice, the Committee recalls that the prohibition of strikes is only acceptable in the case of public servants exercising authority in the name of the State and essential services in the strict sense of the term and that trade unions representing public servants who are not engaged in the administration of the State should be able to engage in collective bargaining on behalf of their members, as one of the fundamental activities in which trade unions are involved. The Committee recalls that under Article 8 of the Convention, while trade unions are expected to respect the law of the land, this law should not be such as to impair the guarantees provided for in the Convention. With regard to the statute of Egitim Sen, the Committee recalls that in the conclusions and recommendations reached in Case No. 2366 (342nd Report, paragraphs 906–917) the Committee on Freedom of Association noted that on the one hand, limits may be placed on the right of trade unions to draw up their constitutions and rules in full freedom where the manner in which they are expressed may imminently jeopardize national security or the democratic order, and on the other hand, expressed serious concerns that references in a union’s by-laws to the right to education in a mother tongue had given and could give rise to the call for dissolution of a trade union.

The Committee requests the Government to indicate in its next report the measures taken or contemplated, including amending the detailed provisions of Act No. 4688, so as to allow trade unions in the public service to draft their rules without undue interference.

The removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688). The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend section 10 of Act No. 4688 to enable workers’ organizations to determine freely whether union officials may remain in their post during their candidacy or election in local or general elections.

The right to strike in the public service. The Committee recalls that section 35 of Act No. 4688 makes no  mention of the circumstances in which strike action may be exercised in the public service. It recalls that in the past, the Government indicated that a constitutional amendment is required for the review of restrictions on the right to strike of public servants; however, the Government is planning to launch a personnel reform in the public sector whereby “public servants” in the narrow sense of the term, i.e. those exercising authority in the name of the State, would be defined first and then carefully distinguished from other public employees. The Committee once again underlines that restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term and that in such cases, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraphs 158, 159 and 164). The Committee requests the Government to indicate in its next report the measures taken, including the possible personnel reform in the public sector, so as to bring section 35 of Act No. 4688 into conformity with the above.

Associations Act. In its previous comments, the Committee noted that, as provided in section 35 of the Associations Act No. 5253 of 4 November 2004, certain specific sections of this Act apply to trade unions, employers’ organizations as well as federations and confederations if there are no specific provisions in special laws concerning these organizations. Section 19 (which is applicable to workers’ and employers’ organizations), enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours notice.

The Committee notes that according to the Government, section 19 of the Associations Act applies only if there are no provisions in the relevant special law, i.e., Act No. 2821 on Trade Unions sections 47–51 of which concern the auditing of trade unions. Noting that section 19 of the Associations Act only applies in a subsidiary manner, the Committee recalls nevertheless, that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125).

The Committee recalls, moreover, that section 26 of the abovementioned Act (which is applicable to workers’ and employers’ organizations) establishes a requirement of permission by the civil administration authority in order for an organization to open student dormitories and boarding houses linked to education and teaching activities. The Committee notes that according to Article 3 of the Convention, workers’ and employers’ organizations have the right to organize their activities, such as, for instance, training, without interference which would restrict this right or impede its lawful exercise. The Committee requests the Government to indicate in its next report the measures taken or contemplated to amend sections 19, 26 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure that: (i) verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members; and (ii) activities of workers’ and employers’ organizations, such as the opening of training centres, is not subject to permission from the authorities.

The Committee invites the Government to avail itself of the technical assistance of the Office if it so wishes.

The Committee is raising a number of other points in a direct request addressed directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. In these circumstances, the Committee repeats its previous direct request, which read as follows:

Article 2 of the Convention. (a) The Committee recalls that several categories of workers are denied the right to organize either because they are not covered by Act No. 2821 or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, contract personnel and apprentices (the Committee had noted that Act No. 5188 repealed Act No. 2495 concerning private security personnel and requested the Government to provide a copy). The Committee noted that the Government indicated that, with the enactment of Private Security Personnel Act No. 5188 replacing Act No. 2495, private security personnel may now form or join trade unions. The Committee requests once again the Government to provide a copy of Act No. 5188 that repeals Act No. 2495 concerning private security personnel, and to indicate in its next report the measures taken or envisaged so as to ensure that the other categories of workers mentioned above enjoy the right to organize, in accordance with Article 2.

(b) Regarding foreign workers, the Committee recalls that section 5 of Act No. 2821 provides that a worker must be a Turkish citizen in order to be a founding member of a union. The Committee notes that the draft bill amending Act No. 2821 no longer refers to the condition of nationality but requires that a person must be in full possession of civil rights in order to establish a trade union. The Committee had requested the Government to clarify the meaning of civil rights. The Government indicated that, under the Civil Code, to be in full possession of civil rights means having the faculty of judgement recognizing good and evil and not being placed under the care of a guardian, as well as being of majority of age. According to the Government, when the draft bill amending Act No. 2821 is enacted, foreign nationals who have the capability to exercise civil rights will have the right to be founding members of trade unions. The Committee requests the Government to keep it informed of the progress made in the adoption of the Bill.

(c) The Committee recalls that, under paragraph 3 of section 22 and paragraph 2 of section 25 of Act No. 2821, a number of formalities, and in particular the intervention of a public notary, are required to become a member of a trade union or to resign from it. The Committee notes that the draft bill amending Act No. 2821 strengthens the observance of these provisions since members of the union executive boards who have not complied with the formalities shall be sentenced to a term of imprisonment. In its comments, the Confederation of Progressive Trade Unions of Turkey (DISK) also refers to the compulsory intervention of a notary for the members’ affiliations and resignations as one of the restrictions to the right to organize. The Committee had requested the Government to remove the required intervention of a notary from sections 22 and 25. The Committee noted that the Government indicated that the bill amending Act No. 2821 will abolish the requirement of the intervention of a notary. The Committee requests the Government to ensure the withdrawal of the corresponding sanctions from the draft bill so as to fully guarantee the free exercise of the right to organize and to keep it informed of the progress made in this regard.

 (d) As regards restriction on the level of representation in section 3 of Act No. 2821 and section 4 of Act No. 4688, the Committee noted the Government’s indication that the aim of this restriction is to promote powerful unions representing branches of activities or services. Recalling that the right to join the organization of one’s own choosing includes the free determination of the level of representation, the Committee requests once again the Government to repeal the prohibition concerning the establishment of trade unions on an occupational or workplace basis in section 3 of Act No. 2821 and section 4 of Act No. 4688.

Article 3. The Committee notes that, under section 33 of Act No. 2822, the Council of Ministers can suspend for 60 days a lawful strike for public health and national security reasons. Appeals can be lodged with the Council of State. The Committee notes that, in accordance with section 34, if the parties have not been able to reach a settlement upon the expiry of the suspension period, the Ministry of Labour refers the matter to compulsory arbitration. The Committee noted that the government indicated that the draft bill amending Act No. 2822 modifies section 33 in order to provide for the advisory opinion of the High Board of Arbitration (a tripartite body), rather than the Council of State as was previously considered, before the suspension is decided by the Council of Ministers. In this respect, the Committee considers that the responsibility for suspending a strike under section 33 should lie with an independent body which has the confidence of all the parties concerned. In these circumstances the Committee requests the Government to amend section 33 of Act No. 2822 accordingly.

Article 4. The Committee recalls that section 37 of Act No. 4688, provides for the dissolution of a union or a confederation ordered by the labour court and, at the same time, makes reference to section 54 of the Law on Associations, which, according to KESK, empowers Governors to dissolve a union or a confederation without any court decision. The Committee notes from the Government’s report that, under the new Associations Act, administrative authorities do not have the power to dissolve an association or suspend its activities and that other relevant laws do not empower the administrative authorities in this respect and that, according to Civil Code No. 4721, a court verdict is necessary to dissolve an association or suspend its activities.

Article 5. The Committee recalls that, under section 3(g) of Act No. 4688, a confederation must be constituted of at least five unions from different sectors. The Committee requests the Government to provide information on the practical application of section 3(g) and to amend it in case it restricts the right of public employees’ unions to join confederations of their own choosing, including those which also group together organizations from the private sector. The Committee underlines that its request also applies to section 2 of Act No. 2821 which provides for a similar definition of a confederation.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the discussion in the Conference Committee on the Application of Standards in June 2007.

The Committee notes the Government’s reply to the comments made by: the Confederation of Public Employees Trade Unions (KESK) in communications dated 2 September 2006 and 31 August 2007 (government communications of 16 February and 24 October 2007); the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in communications dated 12 July and 10 August 2006 (government communication of 2 January 2007); the Confederation of Progressive Trade Unions of Turkey (DISK) dated 9 and 24 April 2007 (government communication dated 16 October 2007). The Committee finally notes the comments made by the ITUC in a communication dated 28 August 2007 with regard to continuing government interference in trade union affairs. The Committee requests the Government to provide its observations thereon.

Civil liberties. The Committee notes that the Conference Committee deeply regretted that the Government had still not provided any information in reply to the serious allegations made by workers’ organizations with regard to police violence and arrests of trade unionists and government interference in trade union activities, including the banning of union-related booklets, posters, etc. The Committee emphasized that respect for basic civil liberties is an essential prerequisite to the exercise of freedom of association and requested the Government to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention.

The Committee recalls that the allegations in question (made by the ICFTU, KESK and the Turkish Confederation of Public Workers Association (Türkiye Kamu-Sen) concerned the following issues: (i) the violent repression by Istanbul police of two peaceful demonstrations on 8 March 2005 to mark International Women’s Day; (ii) the violent suppression by the police of a peaceful demonstration organized by Egitim Sen (affiliate of the KESK) on 26 November 2005 to demand a re-evaluation of overtime and better sanitary inspections, leading to the injury of 17 demonstrators and, as indicated in the communication by the KESK dated 31 August 2007, the conviction of 11 of its trade union executive members to prison sentences of 15 months; according to the KESK, its President Ismail Haki Tombul and the former President of YAPI-YOL SEN, Fehmi Kutan, risk imprisonment as they cannot have their sentences suspended because they were previously convicted; the issue depends on the outcome of their appeal, which is currently pending; (iii) violent police dispersion of a demonstration by the KESK on 30 May 2006, in protest of the social security reform under discussion in Parliament; (iv) the ban of union-related posters, advertisements and calendars in some public institutions.

The Committee notes that according to the Government, the holding of demonstrations in conformity with the law does not fall under the mandate of the Ministry of Labour and does not seem to involve trade union rights in the framework of the Constitution, the Trade Union Act No. 2821 and international standards on freedom of association. The prosecution of officials of the KESK and its affiliated trade unions after the demonstration organized by Egitim Sen on
26–27 November 2005, was due to the non-respect of the formalities for the staging of demonstrations, the closing by the demonstrators of central highways to traffic and attacks by the demonstrators on the police with clubs and stones. With regard to the comments by the KESK, the Government refers to Circular No. 2005/14 which provides that there shall not be any disciplinary inquiry into press statements of province and district representatives of unions and confederations as well as officials of union branches, unions and confederations, in the context of their union activities, provided that these statements are not related to their duties (as public employees). Moreover, in the same Circular, it is envisaged that meetings and demonstrations organized by the province and district representatives of the unions and confederations and the officials of union branches, unions and confederations under the provisions of the Act on Meetings and Demonstrations No. 2911 will be facilitated. Finally, the Government also makes reference to various Circulars of the Prime Minister ordering the administration to observe the relevant provisions of the legislation and not to obstruct union activities (circulars dated 6.6.2002, 12.6.2003 and 2.6.2005).

The Committee recalls that police intervention should be limited to cases where there is a genuine threat to public order and should be in due proportion to such threat. Governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations. The Committee requests the Government to indicate in its next report measures taken with a view to giving the police adequate instructions so as to ensure that police intervention is limited to cases where there is a genuine threat to public order and to avoid the danger of excessive violence in trying to control demonstrations.

Legislation adopted. 1. The Committee notes the text of Act No. 5672 of 26 May 2007 communicated by the Government. The Act amended section 14(14) of Act No. 2821 by lifting the requirement of ten years’ employment in order to enjoy eligibility for trade union office (restrictions remain with regard to election to the General Council of trade unions). The Committee notes moreover from the statement of the Government representative to the Conference Committee, that the lawsuit brought in 2001 against the DISK in respect of the election of its representatives was rejected in the final instance on 22 December 2004.

2. The Committee notes the text of Act No. 5620 of 4 April 2007 communicated by the Government. It notes that section 4(2) of this Act amends section 3(a) of Act No. 4688 so that public employees working under fixed-term contracts are now entitled to join public employees’ unions.

The Committee notes that in its conclusions, the Conference Committee, while noting the above steps towards the fuller application of the Convention, regretted that these steps were insufficient in light of the numerous occasions on which that Committee and the Committee of Experts had urged the Government to take rapid steps to bring its law and practice into conformity with the Convention.

3. The Committee notes the text of the Associations Act No. 5253 of 4 November 2004. The Committee notes that according to section 35 of the Act, certain specific sections of this Act apply to trade unions, employers’ organizations as well as federations and confederations if there are no specific provisions in special laws concerning these organizations. Thus, the Committee observes that section 19 (which is applicable to workers’ and employers’ organizations), enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours notice. The Committee considers that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee observes, moreover, that section 26 of the abovementioned Act (which is applicable to workers’ and employers’ organizations) establishes a requirement of permission by the civil administration authority in order for an organization to open student dormitories and boarding houses linked to education and teaching activities. The Committee recalls that according to Article 3 of the Convention, workers’ and employers’ organizations have the right to organize their activities, such as, for instance, training, without interference which would restrict this right or impede its lawful exercise. The Committee requests the Government to indicate in its next report the measures taken or contemplated to amend sections 19 and 26 of Act No. 5253 of 2004 so that: (i) verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members; and (ii) activities of workers’ and employers’ organizations, such as the opening of training centres, is not subject to permission from the authorities.

Draft bills. The Committee has been commenting for a number of years on draft bills to amend Act No. 4688 on public employees’ trade unions (as amended by Act No. 5198), Act No. 2821 on trade unions, and Act No. 2822 on collective labour agreements, strike and lockout. In its previous observation, the Committee took note of several improvements to the draft bills amending Acts Nos 2821 and 2822: (1) the removal of the condition of nationality for eligibility to election as trade union officer; (2) the abrogation of the provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37, paragraph 3); (3) the abrogation of the provision under which the Governor is entitled to appoint an observer at the general congress of a trade union (Act No. 2821, section 14, paragraph 1); (4) the removal from the list of activities where strikes are prohibited of the following activities: the production of lignite coal for thermal plants; public notaries; sea and land transport or railway, and other rail transport (Act No. 2822, section 29); urban public transportation on land, sea or rail; lignite production to feed power plants; exploration, production, refining and distribution of petroleum; petrochemicals the production of which is based on naphtha or natural gas; (5) the removal of the prohibition of unions’ television and radio stations which results from Act No. 3984; (6) the exclusion of unions from the scope of section 43 of Associations Act No. 2908, which provides that associations are allowed to invite any foreigner to Turkey or send one of their members abroad, provided due notification is given in advance to the Governor.

While noting the positive steps taken so far, the Committee is bound to observe that the draft bills in question have still not been finalized and passed into law and that the Government gives no specific indication of the timetable for their adoption, so as to translate the provisions of these draft instruments into tangible progress on the ground. The Committee requests the Government to indicate in its next report a specific timetable for the adoption and enactment of the draft bills amending Acts Nos 4688 on public employees’ trade unions, Act No. 2821 on trade unions, and Act No. 2822 on collective labour agreements, strike and lockout. The Committee expresses the firm hope that the bills in question will be finalized and passed into law without further delay and that these bills as well as the future legislation will fully take into account all the comments made by the Committee with a view to bringing national law into conformity with the Convention. The Committee enumerates once again these comments below.

Article 2 of the Convention. 1. The exclusion from the right to organize of a number of public employees (sections 3(a) and 15 of Act No. 4688). The Committee notes that, although the abovementioned Act No. 5620 of 4 April 2007 amended section 3(a) of Act No. 4688 so that public employees working under fixed-term contracts are now entitled to join public employees’ unions, no change has been introduced with regard to the prohibition of the right to organize of public employees under probation (section 3(a) of Act No. 4688) and with regard to the exclusion from the right to organize of several categories of public employees including prison guards, civilian personnel in military installations, senior public employees, magistrates, etc. amounting, according to the KESK, to 500,000 public employees (section 15 of Act No. 4688). It further notes that, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union.

The Committee underlines that Article 2 of the Convention provides that workers without distinction whatsoever, including prison guards, civilian personnel in military installations, senior public employees and magistrates, should have the right to form and join organizations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. As regards public employees “in positions of trust”, the Committee recalls once again that it is not compatible with the Convention to exclude totally these public officials from the right to organize. On the other hand, to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: first, that the officials concerned have the right to form their own organizations to defend their own interests; and, second, that the category of the employees concerned is not so broadly defined as to weaken the organizations of other public employees by depriving them of a substantial proportion of their actual or potential membership. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so that, in the framework of the legislative reform under way, all workers, without distinction whatsoever, are guaranteed the right to establish and join organizations of their own choosing.

2. The criteria under which the Ministry of Labour determines the branch of activity covering a worksite (unions must be constituted on a branch activity basis) and the implications of such determination on the workers’ right to form and join organizations of their own choosing (sections 3 and 4 of Act No. 2821). The Committee notes that the statement of the Government representative to the Conference Committee did not provide any new information in this regard and, in particular, did not specify the criteria on which a particular worksite may be classified in a given branch of activity, as previously requested by the Committee. In previous reports, the Government had indicated that classification of the work under a branch of activity takes into account international standards and the views of workers’ and employers’ confederations and that the relevant decision of the Ministry of Labour may be appealed against at the local labour court and the court of cassation. According to the Government, the draft bill on trade unions would envisage fewer branches of activity in order to make a more rational classification and pave the way for much stronger trade unions.

In this respect, the Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2537 (347th Report, paragraphs 1–26) which concerned allegations that as a result of the provisions limiting trade union organization by branch of activity, YAPI-YOL SEN automatically lost members who, pursuant to an administrative reorganization, were transferred from the General Directorate of Village Services to local governments (according to the Government, they were taken out of the branch of activity entitled “Public works, construction and village services” and were transferred to the branch relevant to local governments). According to YAPI YOL SEN, regardless of the fact that these workers continued to perform identical tasks under a new administrative authority, they automatically lost their membership in YAPI-YOL SEN; thus, membership fees are no longer deducted and the check-off system is considered invalid, leading the trade union to financial difficulties. The Committee on Freedom of Association observed with regret that this is the second case concerning Turkey where the Ministry of Labour and Social Security modified the branch of activity classification on the basis of questionable criteria – which do not relate to the nature of activity carried out but to the authority under which work is performed – with very serious consequences for the trade unions concerned (loss of membership and representation rights) [see Case No. 2126, 327th Report, paras 805–847]. The Committee notes the further observations made by the Committee on Freedom of Association according to which, the duties of trade union officers are automatically terminated under section 16 of Act No. 4688 where changes occur in branch classifications.

The Committee deeply regrets the recurrent unilateral interference by the Government in trade union membership and activities, in particular through the narrow determination of categories of workers that may come together in a single trade union, which could, as a consequence, lead to excessive fragmentation of trade unions in the pubic sector. The Committee recalls once again that, while it considers that the setting up of broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions is not in itself incompatible with the Convention, this classification and its modification should be determined according to specific objective and pre‑established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee therefore requests the Government to provide in its next report information on steps taken or contemplated so as to:

(i)    amend section 5 of Act No. 4688 as well as the Regulation on the Determination of Branch of Activity of Organizations and Agencies, which determine the branches of activity according to which public employees’ trade unions may be established, so as to ensure that these branches are not restricted to any particular ministry, department or service, including local governments;

(ii)   amend the Regulation of 2 August 2005 (which amends the Regulation on the Determination of Branch of Activity of Organizations and Agencies) so as to maintain Yapi-Yol Sen members within the branch of activity entitled “Public works, construction and village services” in conformity with the nature of their functions and their willingness to remain affiliated to Yapi-Yol Sen; more generally, the Committee requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2 of the Convention,

(iii) amend section 16 of Act No. 4688 so as to ensure that trade union office is not terminated by reason of the transfer of a trade union leader to another branch of activity, or his/her dismissal or simply the fact that a trade union leader leaves the work.

Article 3. 1. The detailed provisions of Acts Nos 4688, 2821 and 2822 in respect of the internal functioning of unions and their activities. The Committee notes that the statement of the Government representative to the Conference Committee reiterates previously provided information according to which the rationale behind the detailed provisions of Acts Nos 4688, 2821 and 2822 is to ensure the democratic functioning of the unions and to protect the rights of their members while draft Bills Nos 2821 and 2822 will make legislation less detailed.

The Committee notes of the comments made by the KESK and ITUC with regard to repeated interference by the authorities into the statutes of the KESK and five of its affiliates (Egitim Sen, Kültür-Sanat Sen, ESM, Haber-Sen and SES); the Government interventions aim to make these trade unions amend their aims as stated in their statutes, with regard to terms such as “collective bargaining”, “collective agreement”, “job security”, “collective dispute” which are being considered as contrary to Act No. 4688; in 2006, Egitim Sen had to amend its statutes by eliminating reference to “the right to receive education in one’s mother tongue”, in order to avoid being dissolved. The Government indicates that this is in conformity with section 6 of Act No. 4688, which provides that in case of divergencies between the law and the statutes of trade unions, the relevant governorship should request the union to correct its statutes.

The Committee recalls the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2366 (342nd Report, paragraphs 906–917) concerning the statute of Egitim Sen. In particular, while noting that limits may be placed on the right of trade unions to draw up their constitutions and rules in full freedom where the manner in which they are expressed may imminently jeopardize national security or the democratic order, the Committee on Freedom of Association expressed serious concerns that references in a union’s by-laws to the right to education in a mother tongue had given and could give rise to the call for dissolution of a trade union. The Committee emphasizes that trade unions should have the right to include in their statutes the peaceful objectives that they consider necessary for the defence of the rights and interests of their members. It recalls that legislative provisions which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey of 1994, op. cit., paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. The Committee requests the Government to cease its interference in the statutes of the KESK and its affiliates and to indicate in its next report the outcome of the court proceedings pending on this issue. It also once again requests the Government to indicate in its next report the measures taken or contemplated with a view to amending the detailed provisions of Acts Nos 4688, 2821 and 2822 so as to avoid interference with the internal functioning of unions and their activities.

2. The removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688). The Committee notes that the statement of the Government representative to the Conference Committee did not provide any new information in this respect. It once again emphasizes that workers’ organizations may organize their administration and activities without any interference by public authorities on grounds which are incompatible with Article 3. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend section 10 of Act No. 4688 to enable workers’ organizations to determine freely whether union officials may remain in their post during their candidacy or election in local or general elections.

3. The right to strike in the public service (section 35 of Act No. 4688). The Committee recalls that section 35 of Act No. 4688 makes no mention of the circumstances in which strike action may be exercised in the public service and that, according to the statement of the Government representative to the Conference Committee, a constitutional amendment is required for the review of restrictions on the right to strike of public servants; however, the Government is planning to launch a personnel reform in the public sector whereby “public servants” in the narrow sense of the term, i.e. those exercising authority in the name of the State, would be defined first and then carefully distinguished from other public employees; work on this reform programme was continuing as a priority. The Committee underlines that restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term (see General Survey, op. cit., paragraphs 158 and 159). Where the right to strike is prohibited or limited in a manner compatible with the Convention, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee requests the Government to indicate in its next report the measures taken, including the possible personnel reform in the public sector, so as to bring section 35 of Act No. 4688 into conformity with the above. Furthermore, the Committee requests once again the Government to transmit a copy of the new draft modifying Act No. 4688.

4. The right to strike under Act No. 2822. The Committee recalls that it has commented on several occasions on certain provisions of Act No. 2822 concerning the right to strike and which are incompatible with the Convention: section 25 prohibiting strikes for political purposes, general strikes and sympathy strikes (furthermore, article 54 of the Constitution, which contains similar prohibitions further prohibits occupation of work premises, go-slow strikes and other forms of obstruction); section 48 placing severe limitations on picketing; sections 29 and 30 prohibiting strikes in many services which cannot be considered to be essential in the strict sense of the term and section 32 under which compulsory arbitration at the request of any party may be imposed in the services where strikes are prohibited; sections 27 (referring to section 23) and 35 providing for an excessively long waiting period before a strike can be called; sections 70–73, 77 and 79 providing for heavy sanctions, including imprisonment, for participating in “unlawful strikes” the prohibition of which, however, is contrary to the principles of freedom of association. In this respect, the Committee notes that the statement of the Government representative to the Conference Committee reiterates previously provided information according to which some of the restrictions on the right to strike, such as those mentioned in section 25, require a constitutional amendment; however, several restrictions will be lifted with the amendment of Act No. 2822; for instance, in addition to the revision of the list of activities where strikes may be prohibited (noted above), the waiting period for the staging of a strike has been shortened in the draft bill amending Act No. 2822, to a maximum of 30 days or 45 days if the parties have recourse to mediation. The Committee once again requests the Government to indicate in its next report the tangible progress made in amending the above provisions so as to bring them in line with the Convention.

Noting that the Conference Committee requested the Government to accept a high-level ILO mission with a view to assisting it in rapidly taking the necessary measures to bring its legislation into conformity with the Convention, the Committee trusts that this mission would take place in the near future and that it will be able to assist the Government in bringing its law and practice into full conformity with the Convention.

The Committee is raising a number of other points in a direct request addressed directly to the Government.

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

The Committee notes the Government’s report.

Article 2 of the Convention. 1. The Committee recalls that, under article 51 of the Constitution, the right to establish and join a union can be restricted on the following grounds: national security, public order, prevention of crime, general health and morals and the protection of the freedom of others. The Committee notes the Government’s indication that the restrictions on these grounds are ultimately for the protection of public order and not considered as prejudicial to the spirit of the right to organize; moreover, exercise of the right to organize was not restricted on the grounds of article 51.

2. (a) The Committee recalls that several categories of workers are denied the right to organize either because they are not covered by Act No. 2821 or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, contract personnel and apprentices (the Committee had noted that Act No. 5188 repealed Act No. 2495 concerning private security personnel and requested the Government to provide a copy). The Committee notes that the Government reiterates that, with the enactment of Private Security Personnel Act No. 5188 replacing Act No. 2495, private security personnel may now form or join trade unions. The Committee requests once again the Government to provide a copy of Act No. 5188 that repeals Act No. 2495 concerning private security personnel, and to indicate in its next report the measures taken or envisaged so as to ensure that the other categories of workers mentioned above enjoy the right to organize, in accordance with Article 2.

(b) Regarding foreign workers, the Committee recalls that section 5 of Act No. 2821 provides that a worker must be a Turkish citizen in order to be a founding member of a union. The Committee notes that the draft bill amending Act No. 2821 no longer refers to the condition of nationality but requires that a person must be in full possession of civil rights in order to establish a trade union. The Committee had requested the Government to clarify the meaning of civil rights. In its report, the Government indicated that, under the Civil Code, to be in full possession of civil rights means having the faculty of judgement recognizing good and evil and not being placed under the care of a guardian, as well as being of majority of age. According to the Government, when the draft bill amending Act No. 2821 is enacted, foreign nationals who have the capability to exercise civil rights will have the right to be founding members of trade unions. The Committee takes note of the Government’s indications and requests the Government to keep it informed of the progress made in the adoption of the Bill.

(c) The Committee recalls that, under paragraph 3 of section 22 and paragraph 2 of section 25 of Act No. 2821, a number of formalities, and in particular the intervention of a public notary, are required to become a member of a trade union or to resign from it. The Committee notes that the draft bill amending Act No. 2821 strengthens the observance of these provisions since members of the union executive boards who have not complied with the formalities shall be sentenced to a term of imprisonment. In its comments, the Confederation of Progressive Trade Unions of Turkey (DISK) also refers to the compulsory intervention of a notary for the members’ affiliations and resignations as one of the restrictions to the right to organize. The Committee had requested the Government to remove the required intervention of a notary from sections 22 and 25. The Committee notes that in its report the Government indicates that the draft bill amending Act No. 2821 will abolish the requirement of the intervention of a notary. The Committee requests the Government to ensure the withdrawal of the corresponding sanctions from the draft bill so as to fully guarantee the free exercise of the right to organize and to keep it informed of the progress made in this regard.

(d) The Committee recalls that section 14 of Public Employees’ Trade Union Act No. 4688 prohibits public employees from belonging to more than one trade union. The Government indicates in its report that this prohibition, as well as the prohibition in section 22 of Act No. 2821, applies to employees belonging to more than one trade union in the same branch activity at the same time.

(e) As regards restriction on the level of representation in section 3 of Act No. 2821 and section 4 of Act No. 4688, the Committee notes the Government’s report indicating that the aim of this restriction is to promote powerful unions representing branches of activities or services. Recalling that the right to join the organization of one’s own choosing includes the free determination of the level of representation, the Committee requests once again the Government to repeal the prohibition concerning the establishment of trade unions on an occupational or workplace basis in section 3 of Act No. 2821 and section 4 of Act No. 4688.

Article 3. The Committee notes that, under section 33 of Act No. 2822, the Council of Ministers can suspend for 60 days a lawful strike for public health and national security reasons. Appeals can be lodged with the Council of State. The Committee notes that, in accordance with section 34, if the parties have not been able to reach a settlement upon the expiry of the suspension period, the Ministry of Labour refers the matter to compulsory arbitration. The Committee notes from the government report that the draft bill amending Act No. 2822 modifies section 33 in order to provide for the advisory opinion of the High Board of Arbitration (a tripartite body), rather than the Council of State as was previously considered, before the suspension is decided by the Council of Ministers. In this respect, the Committee considers that the responsibility for suspending a strike under section 33 should lie with an independent body which has the confidence of all the parties concerned. In these circumstances the Committee requests the Government to amend section 33 of Act No. 2822 accordingly.

Article 4. The Committee recalls that section 37 of Act No. 4688 provides for the dissolution of a union or a confederation ordered by the labour court and, at the same time, makes reference to section 54 of the Law on Associations, which, according to KESK, empowers Governors to dissolve a union or a confederation without any court decision. The Committee notes from the Government’s report that, under the new Associations Act, administrative authorities do not have the power to dissolve an association or suspend its activities and that other relevant laws do not empower the administrative authorities in this respect and that, according to Civil Code No. 4721, a court verdict is necessary to dissolve an association or suspend its activities.

Article 5. The Committee recalls that, under section 3(g) of Act No. 4688, a confederation must be constituted of at least five unions from different sectors. The Committee requests the Government to provide information on the practical application of section 3(g) and to amend it in case it restricts the right of public employees’ unions to join confederations of their own choosing, including those which also group together organizations from the private sector. The Committee underlines that its request also applies to section 2 of Act No. 2821 which provides for a similar definition of a confederation.

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

The Committee notes the Government’s report.

Comments of workers’ organizations. The Committee takes note of the comments made by the following workers’ organizations: the Confederation of Turkish Public Employees Union (TURKIYE-KAMU-SEN) concerning, inter alia, government interference in trade union activities – ban of union-related booklets, posters, advertisements, calendars in some institutions (communication dated 9 February 2006), the Confederation of Turkish Trade Unions (TURK-IŞ) concerning issues relating to the right to strike (communication dated 17 April 2006), the Confederation of Progressive Trade Unions of Turkey (DISK) commenting on certain negative aspects of the draft Bills Nos. 2821 and 2822 (communication dated 9 June 2006). The Committee also notes the communication of the International Confederation of Free Trade Unions (ICFTU) concerning issues already raised and allegations concerning government interference in trade union statutes, and police violence and arrests of trade unionists during peaceful demonstrations (communications dated 12 July 2006 and 10 August 2006). The Committee notes the observations of the Government, dated 19 July 2006, regarding the communication of TURKIYE-KAMU-SEN, as well as those of 19 October 2006, regarding the communication of DISK and those of 17 October 2006, regarding the communication of the ICFTU. Noting the seriousness of these allegations concerning acts of violence, the Committee recalls that the right of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee notes the Government’s indications that, as these allegations concern private enterprises, the gathering of information will take time and that the plaintiff may lodge complaints concerning discrimination incompatible with trade union rights. The Committee expresses the hope that the Government will take the necessary measures to conduct investigations with respect to the allegations concerning acts of violence and requests the Government to send its observations on all pending comments.

The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2303 (see 342nd Report, June 2006) concerning inter alia the amendments to Trade Unions Act No. 2821 and Collective Agreements, Strike and Lockout Act No. 2822.

New Acts. The Committee notes the adoption of a new Associations Act No. 5253, enacted in 2004 and replacing Act. No. 2908, and a new Penal Code. The Committee will examine these texts once it has the translation at its disposal.

Draft bills. In its previous comments, the Committee noted that drafts with modifications to Act No. 4688 on public employees’ trade unions (amended by Act No. 5198), Trade Unions Act No. 2821, and Collective Labour Agreements, Strike and Lockout Act No. 2822 were under preparation. The Committee notes that the Government indicates that consultations with the social partners are continuing.

Furthermore, the Committee noted with interest that the draft bills amending Acts Nos. 2821 and 2822 contained improvements in the application of the Convention and thereby addressed some of the questions raised by the Committee: (1) the removal of two conditions of eligibility for the election of trade union officers: the condition of nationality and the condition of at least ten years of employment (Act No. 2821, section 14, paragraph 14); (2) the abrogation of the provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37, paragraph 3); (3) the abrogation of the provision under which the Governor is entitled to appoint an observer at the general congress of a trade union (Act No. 2821, section 14, paragraph 1); (4) the removal from the list of activities where strikes are prohibited of the following activities: the production of lignite coal for thermal plants; public notaries; sea and land transport or railway, and other rail transport (Act No. 2822, section 29); urban public transportation on land, sea or rail; lignite production to feed power plants; exploration, production, refining and distribution of petroleum; petrochemicals the production of which is based on naphtha or natural gas; (5) the removal of the prohibition of unions’ television and radio stations which results from Act No. 3984; (6) the exclusion of unions from the scope of section 43 of Associations Act No. 2908, which provides that associations are allowed to invite any foreigner to Turkey or send one of their members abroad, provided due notification is given in advance to the Governor.

However, a number of concerns had remained valid and related to:

Article 2 of the Convention. 1. The exclusion from the right to organize of a number of public employees (sections 3(a) and 15 of Act No. 4688). The Committee notes that the Government indicates in its report that criticism made with respect to sections 3(a) and 15 will be taken into consideration when Act No. 4688 is under review and that the Tripartite Consultation Board unanimously agreed in its meeting on 19 May 2005 on the need to make amendments to the said Act in order to allow public servants to form or join unions during probation period. Furthermore, the Committee notes that, in its reply to one of TURKIYE-KAMU-SEN’s comments, the Government indicates that all public servants except the employees having “worker” status are covered by Act No. 4688, as stipulated in its article 2 (workers employed in the public sector have the same rights as private sector workers since they are covered by Acts Nos. 2821 and 2822); however, article 15 of Act No. 4688 recognizes the right to organize of those public servants who are not employed in the judiciary, security or central supervision cadres and not engaged in the administration of the State. The Committee recalls that, under section 3(a), the definition of “public employee” refers only to those who are permanently employed and have finished their trial periods. With respect to public officials, the Committee recalls that, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union. The Committee notes from the Government’s report that the tripartite consultation board unanimously agreed on the need to amend Act No. 4688 in order to allow public servants to form or join unions during probation. Section 15 lists categories of public employees who are prohibited from joining trade unions. The Committee underlines that Article 2 of the Convention provides that workers without distinction whatsoever should have the right to form and join organizations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. It follows, in particular, that the right to organize of public employees cannot hinge on the duration of their contract of employment. As regards public employees “in position of trust”, the Committee recalls once again that it is not compatible with the Convention to exclude totally these public officials from the right to organize. On the other hand, to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: first, that the officials concerned have the right to form their own organizations to defend their own interests; and, second, that the category of the employees concerned is not so broadly defined as to weaken the organizations of other public employees by depriving them of a substantial proportion of their actual or potential membership. The Committee requests the Government to ensure that the legislative reform under way takes into account the abovementioned concerns, so that all workers, without distinction whatsoever, have the right to form and join an organization of their own choosing and requests the Government to keep it informed of the progress made in this regard.

2. The criteria under which the Ministry of Labour determines the branch of activity covering a worksite (unions must be constituted on a branch activity basis) and the implications of such determination on the workers’ right to form and join organizations of their own choosing (sections 3 and 4 of Act No. 2821). In its report, the Government indicates that classification of the work under a branch of activity takes into account international standards and the views of workers’ and employers’ confederations. The parties concerned by the decision of the Ministry of Labour may take legal action against the decision at the local labour court and its ruling may be appealed at the court of cassation. The Government indicates in its report that the draft bill on trade unions has fewer branches of activity in order to make a more rational classification and pave the way to much stronger trade unions. The Committee recalls that it considers that the setting up of broad bands of classification, relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions, is not in itself incompatible with the Convention. On the other hand, the Committee considers that this classification, and its modification, should be determined according to specific, objective and pre-established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee requests the Government to specify the criteria on which a particular worksite is classified in a given branch of activity. The Committee further requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2.

Article 3. 1. The detailed provisions of Acts Nos. 4688, 2821 and 2822 in respect of the internal functioning of unions and their activities. The Committee notes the Government’s report indicating that the rationale behind the detailed provisions of Acts Nos. 4688, 2821 and 2822 is to ensure the democratic functioning of the unions and to protect the rights of their members. The Government indicates that, nevertheless, draft bills Nos. 2821 and 2822 will make legislation less detailed. The Committee recalls that legislative provisions, which go beyond formal requirements, may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. The Committee trusts that this issue will be taken into account in the draft legislation and requests the Government to keep it informed in this respect.

2. The removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688). The Committee notes the indication in the Government’s report that only a judicial verdict can have the effect of removing a union executive. The Committee considers that workers’ organizations may organize their administration and activities without any interference by public authorities on grounds which are incompatible with Article 3. The Committee requests the Government to take the necessary measures to amend section 10 of Act No. 4688 to enable workers’ organizations to determine freely whether union officials may remain in their post during their candidacy or election in local or general elections.

3. The right to strike in the public service (section 35 of Act No. 4688). The Committee recalls that section 35 of Act No. 4688 makes no mention of the circumstances in which strike action may be exercised in the public service. The Committee notes that the Government indicates that constitutional amendment is required for the review of restrictions on the right to strike of public servants. The Committee underlines that restrictions to the right to strike in the public service hinge solely on the functions carried out by the public employees concerned. Thus, restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term (see General Survey, op. cit., paragraphs 158 and 159). Where the right to strike is prohibited or limited in a manner compatible with the Convention, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee requests the Government to take the necessary measures to ensure that the abovementioned principles are respected.

4. The right to strike under Act No. 2822. The Committee recalls that it has commented on several occasions on certain provisions of Act No. 2822 concerning the right to strike and which are incompatible with the Convention: section 25 prohibiting strikes for political purposes, general strikes and sympathy strikes (furthermore, article 54 of the Constitution which contains similar prohibitions further prohibits occupation of work premises, go-slow strikes and other forms of obstruction); section 48 placing severe limitations on picketing; sections 29 and 30 prohibiting strikes in many services which cannot be considered to be essential in the strict sense of the term and section 32 under which compulsory arbitration at the request of any party may be imposed in the services where strikes are prohibited; sections 27 (referring to section 23) and 35 providing for an excessively long waiting period before a strike can be called. The Committee notes in this regard that, according to the Government, this waiting period from the beginning of the negotiations until the strike begins is considerably shortened under the draft bill amending Act No. 2822, being now of a maximum of 30 days and 45 days if the parties have recourse to mediation; sections 70-73, 77 and 79 providing for heavy sanctions, including imprisonment, for participating in “unlawful strikes” the prohibition of which, however, is contrary to the principles of freedom of association. In this respect, the Committee notes that the Government indicates that some of the restrictions on the right to strike, such as those mentioned in section 25, require a constitutional amendment. However, several restrictions will be lifted with the amendment of Act No. 2822. The Committee requests the Government to keep it informed of the progress made in adopting the draft bill amending Act No. 2822.

The Committee requests the Government to ensure that all issues raised above be addressed and that the final draft bills and the future legislation will be in full conformity with the Convention. Furthermore, the Committee requests once again the Government to transmit a copy of the new draft modifying Act No. 4688. The Committee once again recalls that ILO technical assistance is available in this regard should the Government so desire.

Other questions. 1. In its previous comments, the Committee had requested the Government to provide information concerning the measures taken so as to ensure that article 312 of the Penal Code which provides for imprisonment for “inciting hatred” is not applied to trade unionists carrying out legitimate trade union activities. In its report, the Government indicates that article 312 has been replaced by articles 215, 216 and 218, and that these articles (both old and new) apply to every person who commits acts of praise for a crime committed or criminal persons, incitement to hatred and enmity of one group of people against another, and insult to one part of the population, regardless of his/her status or trade union function. They are not related to legitimate trade union activities and do not apply to trade unionists who exercise the right to organize their legitimate union activities.

2. Concerning the lawsuit against DISK in respect of the election of its representatives, the Committee notes that the Government does not provide concrete information in this respect. In these circumstances, the Committee requests the Government to take the necessary measures to withdraw this lawsuit.

Furthermore, the Committee notes the communication of the Confederation of Public Employees’ Trade Unions (KESK) dated 2 September 2006 on the application of the Convention. The Committee requests the Government to send its observations concerning KESK’s communication.

The Committee is raising a number of other points in a direct request addressed directly to the Government.

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

The Committee takes note of the information provided by the Government representative to the Conference Committee in June 2005 as well as the discussion that followed. It notes that in its conclusions, the Conference Committee on the Application of Standards requested the Government to provide detailed and complete information on all pending issues, the latest draft laws and whatever text was adopted. The Committee requests the Government to provide in its next report, due in the framework of the regular reporting cycle in 2006, detailed and complete information on all the issues raised in its previous observation and direct request (see observation 2004, 75th Session and direct request 2004, 75th Session) as well as the latest draft laws and adopted texts.

The Committee takes note of the comments made by YAPI YOL SEN dated 1 September 2005 with regard to the right to organize of public employees as well as the Government’s recent response thereto. The Committee also takes note of the comments of the KESK affiliate Union of All Municipality and Local Administrative Services Employees (TÜM BEL SEN), dated 2 February 2005 with regard to the right to strike of public servants not engaged in the administration of the State as well as the Government’s response in this respect. Noting that the issues raised in these comments have been dealt with in its previous comments, the Committee will examine them again in the framework of the regular reporting cycle at its next meeting in 2006.

The Committee finally notes the comments made by the Confederation of Progressive Trade Union of Turkey (DISK) and the Confederation of Public Employees’ Trade Unions (KESK) which were transmitted in a communication by the International Confederation of Free Trade Unions (ICFTU) dated 30 August 2005 as well as the Government’s response thereto. These comments concern issues related to the right of public servants not engaged in the administration of the state to take part in collective bargaining and will be examined under Convention No. 98.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

With reference to its observation, the Committee requests that the Government provide further information on the following points.

At the outset, the Committee notes that, with the exception of the right to organize of private security personnel, the Government’s report does not address any of the points previously raised by the Committee. In particular, the Committee recalls that it requested the Government to specify the matters relating to the functioning and the activities of trade unions which are governed by the law on associations and the practical implications for trade unions of these provisions. A number of additional points arise from the draft bills amending the Unions Act No. 2821 and the collective labour agreements, strike and lockout Act No. 2822, which the Committee will also address below. The Committee requests the Government to ensure that its next report also responds to matters raised in its direct request and to clarify the extent to which the law on associations is applicable to trade unions.

Article 2 of the Convention. 1. The Committee recalls that under article 51 of the Constitution the right to establish and join a union can be restricted on the following grounds: national security, public order, prevention of crime, general health and morals and the protection of the freedom of others. The Committee underlines that a state of emergency can only justify restrictions on the right to organize in circumstances of extreme gravity and on the condition that the restrictions are limited in scope and duration to what is strictly necessary to deal with the situation in question (see General Survey on freedom of association and collective bargaining, 1994, paragraph 41). The Committee considers that the general terms - such as general health and morals and the protection of the freedom of others - in which the abovementioned restrictions are set forth in article 51 of the Constitution could potentially give rise to unacceptable restrictions in respect of the rights under this Convention. It therefore requests the Government to consider amending article 51 to ensure that restrictions to the right to organize may only be possible in exceptional circumstances and, in the meantime, to keep it informed of any practical application of these restrictions.

2. (a) The Committee recalls that several categories of workers are denied the right to organize either because they are not covered by Act No. 2821 or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, private security personnel, contract personnel and apprentices. With respect to private security personnel, the Committee notes with interest that, according to the Government’s report, Act No. 5188 repeals Act No. 2495 under which this category of workers was forbidden to join unions. The Committee requests the Government to provide a copy of Act No. 5188 and to indicate in its next report the measures taken or envisaged so as to ensure that the other categories of workers mentioned above enjoy the right to organize, in accordance with Article 2.

(b) Regarding foreign workers, the Committee recalls that section 5 of Act No. 2821 provides that a worker must be a Turkish citizen in order to be a founding member of a union. The Committee notes that the draft bill amending Act No. 2821 no longer refers to the condition of nationality but requires that a person must be in full possession of the civic rights in order to establish a trade union. The Committee requests the Government to clarify the meaning of "civic rights" and to indicate whether foreign workers enjoy such rights, at least after a reasonable residency period, and will be able to establish organizations of their own choosing in accordance with Article 2.

(c) The Committee recalls that, under paragraph 3 of section 22 and paragraph 2 of section 25 of Act No. 2821, a number of formalities, and in particular the intervention of a public notary, are required to become a member of a trade union or to resign from it. The Committee notes that the draft bill amending Act No. 2821 strengthens the observance of these provisions since members of the union executive boards who have not complied with the formalities shall be sentenced to a term of imprisonment. In its comments, the Confederation of Progressive Trade Unions of Turkey (DISK) also refers to the compulsory intervention of a notary for the members’ affiliations and resignations as one of the restrictions to the right to organize. The Committee requests the Government to remove the required intervention of a notary from sections 22 and 25 and to withdraw the corresponding sanctions from the draft bill so as to fully guarantee the free exercise of the right to organize.

(d) The Committee recalls that section 14 of the Public Employees’ Trade Union Act No. 4688 prohibits public employees from belonging to more than one trade union. Bearing in mind that Act No. 5198 amending Act No. 4688 maintains this restriction, the Committee once again requests the Government to take the necessary measures to ensure that public employees in more than one occupational activity have the right to belong to the trade unions corresponding to each of their activities if they so wish. Further, the Committee requests the Government once again to clarify whether section 22 of Act No. 2821 allows workers employed in more than one occupational activity to join more than one union corresponding to each of these activities if they so wish, even if they are in the same overall branch of activities.

(e) Recalling that the right to join the organization of one’s own choosing includes the free determination of the level of representation, the Committee requests the Government to repeal the prohibition concerning the establishment of trade unions on an occupational or workplace basis in section 3 of Act No. 2821 and section 4 of Act No. 4688.

(f) As regards the dual criteria for recognition of the right to conclude a collective agreement under section 12 of Act No. 2822, that is representation of at least 10 per cent of the workers in a given branch of activity and more than half of the workers employed in the worksite or each of the worksites to be covered by the collective agreement, the Committee refers to its comments under Convention No. 98.

3. With respect to public officials, the Committee recalls that, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union. Bearing in mind that, according to the Government, the draft bill amending Act No. 4688 will remove from section 3(a) the condition on the completion of the probationary period to join a trade union, the Committee requests the Government to amend accordingly section 6 so as to guarantee that the right of public employees to establish an organization of their own choosing does not hinge on their particular status of employment.

Article 3. 1. The Committee takes note of the conclusions of the Committee on Freedom of Association in Case No. 2303 (see 335th Report, paragraphs 1357-1378) concerning the suspension of a strike in the glass industry on grounds of national security and the comments of the International Confederation of Free Trade Unions (ICFTU) in respect of section 33 of Act No. 2822. The Committee notes that, under section 33, the Council of Ministers can suspend for 60 days a lawful strike for public health and national security reasons. Appeals can be lodged with the Council of State. The Committee notes that, in accordance with section 34, if the parties have not been able to reach a settlement upon the expiry of the suspension period, the Ministry of Labour refers the matter to compulsory arbitration. The Committee notes that the draft bill amending Act No. 2822 modifies section 33 in order to provide for the advisory opinion of the Council of State before the suspension is decided by the Council of Ministers. The Committee recalls that a strike may be prohibited in a situation of acute national crisis, and that in such instances compulsory arbitration can be acceptable to settle the dispute. The Committee notes that the issue at hand lies with the exercise by the Council of Ministers of its power under section 33 rather than with the circumstances provided for such exercise under the law. In this respect, the Committee, like the Committee on Freedom of Association, considers that the responsibility for suspending a strike under section 33 should lie with an independent body which has the confidence of all the parties concerned. The Committee requests therefore the Government to amend section 33 accordingly so that the suspension of the strike lies with the courts and that the right of workers’ organizations to organize their activities and formulate their programmes free from interference by the public authorities in accordance with Article 3 is fully guaranteed. The Committee also requests the Government to keep it informed of any practical application of section 33 and to submit its reply in respect of the four strikes called by one of DISK’s affiliates in the rubber sector, to which DISK refers in its comments attached to the Government’s report, and which have reportedly been postponed by the Council of Ministers.

2. (a) As regards section 18 of Act No. 4688, the Committee notes with interest that, under Act No. 5198 amending Act No. 4688, there is no longer an obligation for union officers to take unpaid leave from their institutions when elected.

(b) In its previous comments, the Committee had requested clarifications on the role of the Ministry of Labour and Social Security in the determination of the number of members of a trade union. The Committee notes that Act No. 5198 amends sections 14 and 30 of Act No. 4688. Under section 14, as amended, unions are no longer required to send to the Ministry of Labour and Social Security a copy of public employees’ applications to join a particular union (on the basis of which the Ministry determined the total number of unions’ members). Under section 30, as amended, the Ministry of Labour and Social Security determines each year the total membership of public employees’ unions and confederations on the basis of reports on the total number of public employees in a given institution and the total number of public employees who are affiliated to unions, which are jointly established and signed by public employers and unions, using lists setting out the number of unions’ members whose dues are deducted. Noting that the ICFTU referred to representations submitted previously by public employees’ unions on the manipulation of figures by the Government in order to deny them the right to collective bargaining, the Committee trusts that the amendments introduced under Act No. 5198 will prevent any interference by public authorities in this respect.

Article 4. The Committee recalls that section 37 of Act No. 4688 provides for the dissolution of a union or a confederation ordered by the labour court and, at the same time, makes reference to section 54 of the Law on Associations. The Committee recalls that it raised this issue in light of comments from the Confederation of Public Servants Trade Unions (KESK) to the effect that the Law on Associations empowers Governors to dissolve a union or a confederation without any court decision. In its previous comments, the Committee noted that, according to the Government, governors do not have the power to dissolve a union but they can decide to suspend the activities of an association. This decision should be submitted within 48 hours to a court; if it is not submitted in a timely fashion to the court, it shall cease to have effect. The Committee recalls that, if the legislation allows dissolution or suspension of trade unions by administrative authority, the organizations must have the right of appeal to an independent and impartial judicial body and the decision of the administrative authority should not take effect until a final decision is handed down by the judicial authority (see General Survey, op. cit., paragraph 185). The Committee therefore requests the Government to amend section 37 of Act No. 4688 in order to avoid the activities of the union may be suspended by a decision of the governor, even if only for a brief period, and to ensure that the suspension and the dissolution of trade unions can occur only through a final decision rendered by a judicial authority with all due judicial safeguards.

Article 5. The Committee recalls that, under section 3(g) of the Act No. 4688, a confederation must be constituted of at least five unions from different sectors. The Committee requests the Government to provide information on the practical application of section 3(g) and to amend it in case it restricts the right of public employees’ unions to join confederations of their own choosing, including those which also group together organizations from the private sector. The Committee underlines that its request also applies to section 2 of Act No. 2821 which provides for a similar definition of a confederation.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the information provided in the report communicated by the Government, as well as the observations attached to the report, made by the following workers’ organizations: the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Public Employees of Turkey (TURKIYE-KAMU-SEN) and the Confederation of Turkish Trade Unions (TURK-IŞ). The Committee also notes the responses of the Government to the observations made by the Independent Public Sector Communication Employees’ Union (BAGIMSIZ HABER-SEN), by DISK, by the Confederation of Public Employees Trade Unions (KESK), by the Turkish Union of Public Employees in the Education, Training and Science Services (TÜRK EGITIM-SEN) and by the International Confederation of Free Trade Unions (ICFTU). The Committee requests the Government to transmit its comments on the observations sent by the ICFTU in a communication dated 15 December 2003.

In its previous comments, the Committee examined the conformity with the Convention of the following laws: Act No. 4688 on public employees’ trade unions, the Trade Unions Act No. 2821, the Collective Labour Agreements, Strike and Lockout Act No. 2822 and Act No. 3218 imposing, under provisional section 1, compulsory arbitration in export processing zones.

The Committee notes that since it last examined the Government’s report, certain sections of Act No. 4688 have been amended by Act No. 5198 and a draft comprising further modifications to Act No. 4688 is under preparation. With respect to Acts Nos. 2821 and 2822, the Committee notes that two draft bills have been prepared and that consultations thereon are under way. The Committee requests the Government to transmit the second text amending Act No. 4688 with its next report as well as an updated version of the texts amending Acts Nos. 2821 and 2822. Finally, the Committee takes note of the entry into force of the new Labour Act No. 4857.

At the outset, the Committee notes with satisfaction Act No. 4771, which has repealed provisional section 1 of Act No. 3218 under which compulsory arbitration was imposed for a ten-year period in export processing zones for the settlement of collective labour disputes. Further, the Committee notes with interest that the draft bills amending Acts Nos. 2821 and 2822 contain improvements in the application of the Convention and thereby address some of the questions raised by the Committee:

n  the removal of two conditions of eligibility for the election of trade union officers: the condition of nationality and the condition of at least ten years of employment (Act No. 2821, section 14, paragraph 14);

n  the abrogation of the provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37, paragraph 3);

n  the abrogation of the provision under which the Governor is entitled to appoint an observer at the General Congress of a trade union (Act No. 2821, section 14, paragraph 1);

n  the removal from the list of activities where strikes are prohibited of the following activities: the production of lignite coal for thermal plants; banking and public notaries; sea and land transport or railway, and other rail transport (Act No. 2822, section 29);

n  the removal of the prohibition of unions’ television and radio stations which results from Act No. 3984;

n  the exclusion of unions from the scope of section 43 of Associations Act No. 2908, which provide that associations are allowed to invite any foreigner to Turkey or send one of their members abroad, provided due notification is given in advance to the Governor.

A reading of the draft bills reveals that a number of concerns raised by the Committee remain valid:

n  the exclusion from the right to organize of a number of public employees (sections 3(a) and 15 of Act No. 4688);

n  the criteria under which the Ministry of Labour determines the branch of activity covering a worksite (unions must be constituted on a branch activity basis) and the implications of such determination on the workers’ right to form and join organizations of their own choosing (sections 3 and 4 of Act No. 2821);

n  the detailed provisions of Acts Nos. 4688, 2821 and 2822 in respect of the internal functioning of unions and their activities;

n  the removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688);

n  the right to strike: (a) the public service (section 35 of Act No. 4688); (b) under Act No. 2822.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. 1. The Committee recalls that, under section 3(a), the definition of "public employee" refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees who are prohibited from joining trade unions. The Committee notes that, according to the ICFTU, over 400,000 public employees are excluded from the right to organize and that, according to KESK, public employees are increasingly employed under fixed-term contracts and thereby excluded from the scope of Act No. 4688. According to the Government, the draft bill amending Act No. 4688 will remove the reference to the "trial period" and that the definition of "public employees" will be revised so as to include in particular, special security personnel, although it seems that public employees holding positions of trust will remain outside the scope of Act No. 4688.

The Committee underlines that Article 2 of the Convention provides that workers without distinction whatsoever should have the right to form and join organizations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. It follows, in particular, that the right to organize of public employees cannot hinge on the duration of their contract of employment. As regards public employees "in position of trust", the Committee recalls once again that it is not compatible with the Convention to exclude totally these public officials from the right to organize. On the other hand, to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: first, that the officials concerned have the right to form their own organizations to defend their own interests; and second, that the category of the employees concerned is not so broadly defined as to weaken the organizations of other public employees by depriving them of a substantial proportion of their actual or potential membership (see the General Survey on freedom of association and collective bargaining, 1994, paragraphs 87 and 88). The Committee trusts that the draft bill will amend sections 3(a) and 15 so that all public employees, with the exception of the armed forces and the police, will have the right to organize in accordance with Article 2, and requests the Government to keep it informed in this respect.

2. The Committee recalls that its previous comments referred to the conclusions of the Committee on Freedom of Association in Case No. 2126, and to sections 3 and 4 of Act No. 2821, under which trade unions are constituted on a branch activity basis and the branch of activity covering a worksite is determined by the Ministry of Labour. The Committee requested the Government to indicate the criteria on which the Ministry of Labour makes the determination under section 4 and to provide any text governing this determination. The Committee notes that the Government’s report does not address this issue. At the same time, the Committee notes that the draft bill amending Act No. 2821 modifies the list of branches of activity. Thus, some branches currently listed in section 60 of Act No. 2821, will disappear or be merged with other branches of activity. The Committee notes that under provisional section 2 of the draft bill, unions currently established in branches of activity that will be abolished or merged with others, must hold an extraordinary congress in order to draw up their new rules and modalities of operation.

The Committee recalls that it considers that the setting up of broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions is not in itself incompatible with the Convention. On the other hand, the Committee considers that this classification, and its modification, should be determined according to specific, objective and pre-established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee once again requests the Government to specify the criteria on which a particular worksite is classified in a given branch of activity. Further, the Committee requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2. In this connection, as regards workers who, by reason of a decision taken under section 4 have lost their right to be represented by the trade union Dok Gemi-Is (see Case No. 2126) which they had freely chosen, the Committee once again requests the Government to indicate the measures taken so as to restore to these workers their right to establish and join the organization of their own choosing. The Committee requests the Government to keep it informed on all the measures taken and of the practical implications for unions of the entry into force of the modified list of branches of activity.

Article 3. 1. Right of workers’ organizations to draw up their constitutions and rules. In its previous comments, the Committee underlined that several provisions of Acts Nos. 2821, 2822 and 4688, unduly regulate trade union internal matters and that this could give rise to undue interference by public authorities in the functioning and the activities of trade unions. The Committee notes that according to the Government, the provisions in question of Act No. 4688 do not aim at limiting organizations’ independence. They were introduced with the sole objective of ensuring a democratic functioning of trade unions and transparency in their activities, as well as of protecting the rights of their members.

The Committee recalls first that its comments concern not only Act No. 4688 but also Acts Nos. 2821 and 2822. It notes in this respect that Act No. 5198 and the draft bills amending Acts Nos. 2821 and 2822 do not lessen the level of detail of the framework within which unions are to operate. The Committee recalls that legislative provisions, which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey, op. cit., paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. The Committee expresses the firm hope that its comments will be taken into account in the draft bills that are to amend Acts Nos. 4688, 2821 and 2822 and requests the Government to keep it informed in this respect. Finally, with respect to section 10 of Act No. 4688 under which a union executive committee can be withdrawn in case of non-compliance with requirements which should be left to the free determination of the occupational organizations, the Committee refers to its comments made above and requests the Government to take the necessary measures to amend section 10 of the Act so as to ensure that workers’ organizations may organize their administration and activities without any interference by public authorities on grounds which are incompatible with Article 3.

2. Right of workers’ organizations to elect their representatives freely. The Committee recalls that under section 18 of Act No. 4688 the mandate of a union officer is suspended if the latter is a candidate in local or general elections. The Committee notes that, according to the Government, this provision is designed to ensure that candidates are on an equal footing and to prevent a union’s resources being used for political purposes. The Committee notes with interest that the corresponding provision of Act No. 2821, section 37, paragraph 3, has been removed by virtue of the draft amending bill, whereas the amendment made by Act No. 5198 to section 18 of Act No. 4688 maintains this restriction and appears to further exclude union officers from union office in the event that their candidacy in local and general elections fails. The Committee considers that while the issue of public employees’ participation in local or general elections may be relevant to the general status of public servants, it should not result in a restriction on the choice of union officers made by union members. The Committee therefore requests the Government, in the event that there is no prohibition or restriction on public servants’ candidacy for local and general elections, to take the necessary measures to amend section 18 of Act No. 4688 further, so as to enable public employees’ organizations to determine freely whether union officers may remain in their posts during their candidacy or election for local or general elections and to permit unions’ by-laws to determine whether such officers shall remain in their posts in the event that their candidacy in local and general elections fails.

3. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes free from government interference. Public employees’ trade unions. The Committee recalls that section 35 of Act No. 4688 makes no mention of the circumstances in which strike action may be exercised in the public service. The Committee notes that, in its report, the Government links this particular issue with the studies which are under way and which aim at revising the definition of "public employee". The Committee underlines that restrictions to the right to strike in the public service hinge solely on the functions carried out by the public employees concerned. Thus, restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term (see General Survey, op. cit., paragraphs 158-159). Where the right to strike is prohibited or limited in a manner compatible with the Convention, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee trusts that the Government will take the necessary measures in the near future to amend Act No. 4688 in a manner compatible with Article 3 along the lines set out above and requests the Government to keep it informed of the progress made in this regard.

Other trade unions. The Committee recalls that it has commented on several occasions on certain provisions of Act No. 2822 concerning the right to strike and which are incompatible with the Convention. The Committee notes in this respect the comments made by the ICFTU on the specific restrictions placed on the right to strike, both in law and practice, and the severe penalties applicable to the participation in an illegal strike. The Committee recalls that its previous comments concerned the following provisions:

n  section 25 prohibiting strikes for political purposes, general strikes and sympathy strikes; article 54 of the Constitution contains similar prohibitions and prohibits as well occupation of work premises, go-slow strikes, and other forms of obstruction;

n  section 48 placing severe limitation on picketing;

n  sections 29 and 30 prohibiting strikes in many services which cannot be considered to be essential in the strict sense of the term and section 32 under which compulsory arbitration at the request of any party may be imposed in the services where strikes are prohibited. In light of the services remaining in the draft bill amending section 29, the Committee underlines that activities concerning the production, the refining and the distribution of natural gas, town gas, and petroleum, cannot be considered as essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population;

n  sections 27 (referring to section 23) and 35 providing for an excessively long waiting period before a strike can be called. In this respect, the Committee notes that the Government agrees that the period running from the beginning of the negotiations until the strike actually begins is considerably long and that sections 22 and 23 are amended in the draft bill; the Committee requests the Government to clarify the extent to which the waiting period has been reduced under sections 22 and 23 as amended and to communicate an updated version of the amended texts;

n  sections 70-73, 77 and 79 providing for heavy sanctions, including imprisonment, for participating in "unlawful strikes" the prohibition of which, however, is contrary to the principles of freedom of association. In this respect, the Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and, furthermore, if measures of imprisonment are at all to be imposed they should be justified by the seriousness of the offences committed.

Noting that the draft bill amending Act No. 2822 does not address most of the concerns previously raised by the Committee, the Committee urges the Government to take the necessary measures to amend the abovementioned provisions so as to bring them into conformity with Article 3.

Finally, the Committee notes that the ICFTU has referred, in its observations, to restrictions on freedom of association which are particularly acute in the four provinces in the south-east of the country and to the detention of many trade unionists under section 312 of the Penal Code which provides for imprisonment for "inciting hatred". The Committee notes that, according to the Government, the state of emergency was lifted throughout Turkey and that section 159 of the Penal Code was amended so that freedom of expression of non-violent thoughts is no longer considered as an offence. The Committee notes that the Government has not addressed the particular issue of the application of section 312 of the Penal Code to trade unionists in the legitimate exercise of their activities. The Committee therefore requests the Government to provide its reply in this respect and to indicate the measures taken so as to ensure that section 312 is not applied to trade unionists carrying out legitimate trade union activities.

With respect to the lawsuit brought against DISK, the Committee notes that the Government confirms that a lawsuit was brought against the Confederation under section 54 of Act No. 2821 and that the case is under way. The Committee notes that although the Government submits that the required documents concerning the union officers elected during the 2000 General Congress of DISK were incomplete, the Government seems to confirm that one of the reasons for the lawsuit related to the ten-year service requirement that has been repealed from the Constitution. The Committee notes that the existence of an organization, which has duly acquired legal personality and which is currently functioning, is being threatened by a lawsuit initiated more than two years ago and which is based on a condition of eligibility which has been repeatedly criticized by the Committee as a violation of Article 3. The Committee considers that such a lawsuit brought to dissolve an organization not only interferes with the right of workers’ organizations to elect freely their representatives but also more basically infringes the workers’ right to establish and join organizations of their own choosing. The Committee trusts therefore that the Government will take the necessary measures to withdraw the lawsuit, all the more so as the condition of eligibility will be repealed from Act No. 2821. The Committee requests the Government to keep it informed in this respect.

The Committee expresses the hope that, in the forthcoming legislative reforms concerning the right to organize, the comments made above will be taken into account. The Committee once again recalls that ILO technical assistance is available in this regard should the Government so desire.

The Committee is raising a number of other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the comments of 3 June 2003 submitted by the Confederation of Progressive Trade Unions of Turkey (DISK) and the reply thereon submitted by the Government. The Committee notes that the Government merely indicates that it asked a group of academicians to prepare a draft study with a view to amending some provisions of Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strikes and lockouts, while it does not address the specific issue of court proceedings for the dissolution of DISK. The Committee notes that, according to the Government’s indications, the draft study has been concluded and sent to social partners for their comments. The Government states that the process will result in a draft bill which will address all the points raised by DISK, once it has been enacted.

Article 3 of the Convention. Right of workers’ organizations to elect their representatives in full freedom. The Committee notes that DISK continues to refer to the suit filed by the Ministry of Labour against the Confederation on the grounds that its officers do not have ten years of service, as well as the required official document to demonstrate their literacy, despite the amendment to article 51 of the Constitution whereby the precondition for the election of union officers concerning years of employment has been removed. According to DISK, the Ministry has sought from the courts the closure of the Confederation. The case is before the Istanbul Fifth Labour Court. DISK also indicates that similar cases have been brought against its affiliates.

The Committee recalls that, in it previous comments on article 51 of the Constitution and section 14 of Act No. 2821 on trade unions, it has underlined that any precondition for election of union officers concerning years of employment should be a matter to be determined by the organizations themselves. While noting that an amendment to article 51 of the Constitution repealed the precondition concerning ten years of active employment, it drew the attention of the Government to the necessity of amending accordingly section 14 of Act No. 2821. In these circumstances, while noting the developments concerning amendments to Act No. 2821, the Committee requests the Government to submit more specific comments in respect of the court proceedings reportedly instituted for the dissolution of DISK. If the grounds for the suit are those described by DISK, the Committee requests the Government to withdraw the suit (as well as any similar suits that may have been brought against its affiliates), so that the right of workers’ organizations to elect their representatives in full freedom is effectively guaranteed, and to keep it informed in this regard. Furthermore, it requests the Government to provide a copy of the draft Bill amending Act No. 2821 and Act No. 2822 as soon as it is available.

The Committee will be addressing the other pending matters in respect of the application of the Convention (see 2002 observation, 73rd Session) at its next meeting when the Government’s report is due. At the same time, it will examine the new Labour Law, No. 4857, adopted on 22 May 2003.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

With reference to its observation, the Committee requests that the Government provide further information on the following points.

The Committee takes due note of the comments of the Government to the effect that article 51 of the Constitution provides for reasonable grounds on which the right to organize can be restricted and that in practice no restriction has occurred under this provision. The Committee must nonetheless once again recall that the broad wording of certain grounds - i.e. general health and morals and the protection of the freedom of others - on which the restrictions can occur under article 51 of the Constitution could potentially give rise to unacceptable restrictions in respect of the rights under the Convention. It therefore requests the Government to consider amending article 51.

Article 2 of the Convention. 1. (a) In its previous comments, the Committee had requested the Government to take the necessary measures so as to guarantee the full exercise of their rights in accordance with the Convention of the following categories of workers: foreign workers, private security personnel and homeworkers (under Act No. 2821), apprentices (under Act No. 3308) and contract personnel. The Committee notes the general comment of the Government to the effect that the review of Act No. 2821 will be undertaken by the tripartite commission in charge of a series of legislative reforms and that the issues raised by the Committee in respect of this Act and Act No. 3308 have been transmitted to the commission. The Committee once again requests the Government to indicate in its next report the measures taken or envisaged so as to ensure that each category of workers mentioned above enjoy the full exercise of the right to organize, in accordance with Article 2 of the Convention.

(b) The Committee notes with interest that article 51 of the Constitution was also amended so that, in particular, the founders of a union are no longer required to submit information and documents to the competent authority designated by the law. The Committee notes on the other hand that such requirement remains valid under section 6 of Act No. 4688 and section 6 of Act No. 2821. It further notes that these sections permit governors to apply to the labour court to prevent an organization from continuing its activities if it is deemed that the documents submitted do not fulfil the conditions set out in the law or if they are incomplete. The Committee trusts that the relevant provisions of both Acts will be brought in line with article 51 as amended, so as to avoid any risk of undue interference in the establishment of occupational organizations and to fully ensure in practice the right of workers to establish organizations of their own choosing. In the meantime, the Committee requests the Government to provide indications on the practical application of the abovementioned provisions of Act No. 4688 and Act No. 2821. In particular, the Committee requests the Government to indicate whether clear instructions have been issued to the governors to whom the information is submitted, to the effect that, under these Acts, they do not have authority to interfere in the establishment of the trade unions; should they consider that the establishment of a particular trade union is contrary to the law, they must apply to the labour courts which would then decide, as the case may be, on the suspension or the dissolution of the trade union concerned.

(c) The Committee also notes that article 51 of the Constitution has been amended to provide that "membership in more than one labour union cannot be obtained at the same time and in the same work branch". Assuming that this amendment will now permit workers employed in more than one occupational activities to have the right to belong to the trade unions corresponding to each of their activities if they so wish, the Committee trusts that the Government will take the necessary measures to amend section 14 of Act No. 4688 accordingly. Further, the Committee requests the Government to clarify whether section 22 of Act No. 2821 allows membership in several unions when pertaining to different branches of activity. The Committee requests the Government to provide the necessary information in its next report.

(d) The Committee notes the comment of the Government to the effect that, under section 14 of Act No. 4688, there is no formal condition for public officials - and in particular the intervention of a notary public is no longer required - to become a member of a trade union or to resign from it. The Committee trusts that sections 22 and 25 of Act No. 2821 will be amended so as to fully ensure the right of workers freely to join organizations of their own choosing.

(e) The Committee notes the comments of the Government on section 4 of Act No. 4688 under which public officials are not allowed to establish organizations on an occupational and workplace basis, and that no information was provided in respect of section 3 of Act No. 2821 which contains an identical prohibition and in respect of which the Committee has drawn the attention of the Government on several occasions. The Committee would like once again to recall that the right to join the organization of one’s own choosing includes the free determination of the level of representation. The Committee therefore requests the Government to repeal from section 4 of the Act No. 4688 and section 3 of the Act No. 2821 the prohibition concerning the establishment of trade unions on an occupational or workplace basis.

(f) With reference to the conclusions of the Committee on Freedom of Association in Case No. 2126, the Committee notes that, in accordance with section 3 of Act No. 2821, trade unions shall be constituted on branch activity basis and that, in accordance with section 4 of Act No. 2821, "the branch of activity covering a worksite shall be determined by the Ministry of Labour". The Committee considers that the setting up of broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions is not in itself incompatible with the Convention. On the other hand, the Committee considers that this classification, and its modification, should be determined according to specific, objective and pre-established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee therefore requests the Government to indicate in its next report the criteria on which the Ministry of Labour makes the determination under section 4 and to provide any text governing this determination. Further, as regards workers who, by reason of a decision taken under section 4, have lost their right to be represented by the trade union Dok Gemi-Is which they had freely chosen, the Committee trusts that the Government will take the necessary measures so as to restore to these workers their right to establish and join the organization of their own choosing. It requests the Government to keep it informed in this respect.

(g) With reference still to the conclusions of the Committee on Freedom of Association in Case No. 2126, the Committee notes that, under section 12 of Act No. 2822, a dual criteria - representation of at least 10 per cent of the workers in a given branch of activity and more than half of the workers employed in the worksite or each of the work sites to be covered by the collective agreement - applies for the recognition of the right to conclude a collective agreement. The Committee notes from the indications given by the Government in its report on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that it intends to lift the 10 per cent criteria but that reforms have not been finalized in this respect due to continuing consultation with social partners. The Committee also notes from the indications given by the Government in its report that the Act is also due to be examined by the tripartite commission in charge of labour legislative reforms. Considering that trade unions which do not fulfil the dual criteria should not in practice be totally deprived of the essential means for defending the occupational interest of their members, and thus that the right of workers to join the organizations of their own choosing should be fully guaranteed, the Committee requests the Government to provide information on the practical application of section 12, pending further development in amending Act No. 2822.

2. (a) In respect of public officials, the Committee requests the Government to provide a copy of the regulations which were adopted following Act No. 4688, and published on 9 November 2001, and which apparently specify further the Act in respect of the establishment of trade unions in the public service. Further, with reference to section 14 of the Act which provides that copies of public officials’ application for membership of trade unions should be sent to the Ministry of Labour and Social Security, the Committee requests the Government to provide clarifications on the role of the Ministry of Labour and Social Security in the determination of the number of members of a trade union.

(b) The Committee notes the comments of the Government concerning the condition provided under section 6 of Act No. 4688 to the effect that a public official must have been in employment for two years to become a founder of a union: this condition is linked to a probationary period of two years to which each public official is subjected. The Committee would like nonetheless once again to reiterate that the right to freely establish a union under Article 2 applies to all workers without distinction and does not hinge on their particular status of employment. The Committee therefore requests the Government to repeal the condition concerning the founders of unions from section 6.

(c) In its previous comments, the Committee had noted that, under section 3(g) of Act No. 4688, a confederation must be constituted at least of five unions from different sectors. The Committee had requested the Government to provide information on the practical application of section 3(g) and to amend it in the case it restricted the right of public officials to affiliate with the confederation of their own choosing, including in the private sector. The Committee notes with regret that the Government has not provided information on this matter and requests it to indicate the measures taken or envisaged to ensure that public sector unions may join confederations of private sector unions.

Article 3. (a) In its previous comments the Committee had noted that the amendment to section 14 of Act No. 2821, providing for a precondition for election of union officers concerning years of employment, hinged on an amendment to article 51 of the Constitution. The Committee notes with interest that the precondition concerning ten years of active employment has been repealed from article 51. The Committee therefore trusts that section 14 of Act No. 2821 will be amended accordingly so that the right of workers’ organizations to elect their representatives in full freedom will be effectively guaranteed.

(b) In its previous comments the Committee had requested the Government to provide clarification on section 18 of Act No. 4688 and, in particular whether this provision imposed an obligation on union officers to take unpaid leave when elected. The Committee notes from the report of the Government that there is indeed an obligation for public officials who are elected as union officers to take unpaid leave. The Committee further notes from the indication given by the Government that the same obligation applies to a number of branch officers under certain conditions and that the officers concerned will be determined by the general assembly of the organization. While the Committee notes that according to the Government the aim of this obligation is to enable union officers to carry out their activities freely, it must underline that such an obligation may prevent some public employees from presenting their candidacy in the union executive bodies and that thus the right of workers’ organizations to elect freely their representatives is not fully guaranteed under Act No. 4688. In these circumstances, the Committee requests the Government to amend section 18 so as fully to guarantee the rights of public servants’ organizations under Article 3 of the Convention.

(c) The Committee notes from the report of the Government that the comments it has made in relation to the provision of Act No. 3984 prohibiting unions’ television and radio stations have been transmitted to the tripartite commission. The Committee requests the Government to keep it informed of any measures taken to ensure that unions may organize their administration and activities without interference by the public authorities.

Article 4. The Committee notes the comments of the Government in respect of section 54 of the Law on Associations, which is referred to in section 37 of Act No. 4688. According to the Government, governors do not have the power to dissolve a union but they can decide to suspend the activities of an association. This decision should be submitted within 48 hours to a court; if it is not submitted in a timely fashion to the court, it shall cease to have effect. While section 37 of Act No. 4688 is a particular aspect of a more general question - i.e. the impact of the Law on Associations on the organization, the functioning and the activities of the trade unions which the Committee has raised in its observation - the Committee would like to recall, that if the legislation allows dissolution or suspension of trade unions by the administrative authority, the latter’s decision should not take effect until a final decision is handed down by the judicial authority; further, the organizations must have the right of appeal to an independent and impartial judicial body (see General Survey on freedom of association and collective bargaining, 1994, paragraph 185). While noting that the Governor’s decision to suspend a trade union ceases to have effect if it is not timely submitted to the courts, the Committee requests the Government to amend section 37 of Act No. 4688 so that such a decision will not have any effect on the trade union activities and thus to ensure that the suspension and the dissolution of trade unions can occur only through a final decision rendered by a judicial authority with all due judicial safeguards. Further, the Committee requests the Government to indicate in its next report specifications on the procedure followed by the courts in such instance.

Article 5. The Committee notes that, according to the information provided by the Government in its report, section 43 of Act No. 2908 has been amended by Act No. 4748 and that an association may invite any foreigner to Turkey or may send one of its members abroad at the invitation of a foreign institution, provided due notification is given in advance to the Governor. The Committee requests the Government to provide information on the practical application of section 43 as amended and, in particular, to indicate whether the notification to be provided to the Governor is merely a formal requirement or whether the Governor may approve or disapprove any activities in this respect.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the information provided in the report communicated by the Government, as well as the comments attached to the report made by the Confederation of Turkish Trade Unions (TÜRK-IS), the Confederation of Progressive Trade Unions of Turkey (DISK) and the Turkish Confederation of Employers’ Associations (TISK). The Committee also notes the response of the Government to the observations made by the Confederation of Public Servants’ Trade unions (KESK) and by the Energy-Building and Road Construction-Union (EYYSEN), dated 1 June and 10 September 2001, respectively. The Committee also notes that observations were communicated by the Independent Public Sector Communication Employees’ Union (BAGIMSIZ HABER-SEN), the Turkish Union of Public Employees in the Education, Training and Science Services (TÜRK EGITIM-SEN), as well as by the International Confederation of Free Trade Unions (ICFTU). The Committee requests the Government to transmit its comments thereon.

In its previous comments, the Committee had examined particular provisions of the following laws: Act No. 4688 on public employees trade unions, the Unions Act No. 2821, the Collective Labour Agreements, Strike and Lockout Law No. 2822 and Act No. 3218 imposing compulsory arbitration in export processing zones. The Committee had asked the Government to take the necessary measures: (a) to ensure that public servants, other than members of the armed forces and the police, fully enjoy the right to organize (sections 3(a) and 15 of Act No. 4688); (b) to enable workers’ organizations to determine freely whether union officers may remain in their posts during their candidacy or election to local and general elections (section 37 of Act No. 2821 and section 10 of Act No. 4688); (c) to ensure the right of workers’ organizations to organize their activities without interference by the public authorities (sections 29, 30 32 and 54 of Act No. 2822); (d) to ensure that those public servants who are not exercising authority in the name of the State and who cannot be deemed to be carrying out essential services in the strict sense of the term may have recourse to industrial action without penalty (Act No. 4688); (e) to ensure that workers in export processing zones have the possibility of taking industrial action in defence of their interests (provisional section 1 of Act No. 3218); and (f) to ensure that public officials’ organizations may organize their administration and activities without any undue interference by the public authorities (section 10 of Act No. 4688).

The Committee notes that according to the information provided by the Government in its report, the review of Acts Nos. 2821, 2822 and 4688 will be undertaken by a tripartite commission, in light of the provisions of the Convention and that the relevant comments of the Committee have been communicated to the commission.

The Committee also notes with interest, from the Government’s report, that by virtue of an Act adopted by Parliament on 3 August 2002, provisional section 1 of Act No. 3218 has been repealed. It requests that the Government communicate a copy of this Act with its next report, as well as a copy of the recent Labour Security Law which, the Committee understands, is due to take effect in March 2003.

The Committee requests that the Government keep it informed of the progress made in the review of Acts Nos. 2821, 2822 and 4688 and in this regard refers the Government to its previous comments made thereon. In light of the Government’s report, the Committee would especially like to draw the Government’s attention to the following points.

Article 2 of the Convention

Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. The Committee notes the Government’s comments in respect of sections 3(a) and 15 of Act No. 4688. The Committee would like to recall that, in light of the broad wording of Article 2 of the Convention, all public servants and officials should have the right to establish occupational organizations (see paragraphs 48 and 49 of its General Survey on freedom of association and collective bargaining, 1994). The only admissible exception is that specified in Article 9 of the Convention in respect of members of the armed forces and the police. It follows, and to address specifically the point raised by the Government concerning public officials holding managerial positions or positions of trust, that under the Convention, to exclude totally these public officials from the right to organize is not compatible with its provisions. On the other hand, the Committee recalls that to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: (a) the officials concerned are entitled to establish their own organizations; and (b) the legislation should limit the category of officials concerned to those exercising senior managerial or policy-making responsibilities (see General Survey, op. cit., paragraph 57). While duly noting the Government’s indications that Act No. 4688 is a significant development in the legislative reforms engaged by it, the Committee once again requests that the Government take the necessary measures to amend sections 3(a) and 15 of Act No. 4688 so as to ensure that all workers without distinction whatsoever fully enjoy the right to organize in accordance with Article 2 of the Convention.

Article 3 of the Convention

In its previous comments, the Committee had pointed out, in respect of several provisions of Acts Nos. 2821, 2822 and 4688, that the national legislation unduly regulated trade union internal matters and that it could give rise to undue interference by public authorities in the functioning and the activities of trade unions. The Committee takes note of the indications given by the Government in respect of several provisions of Act No. 4688 (sections 9, 10, 13, 18, 23, 25) and that, in particular, the aim of these provisions is either to facilitate the internal functioning of the unions or to encourage the emergence of powerful unions. The Committee must recall, however, that Article 3 of the Convention, guarantees the free functioning of workers’ and employers’ organizations by recognizing four basic rights: to draw up their constitutions and rules; to elect their representatives in full freedom; to organize their administration and activities; and to formulate their programmes without interference by the public authorities (see General Survey, op. cit., paragraph 108). The Committee considers that the abovementioned Acts overly regulate the functioning, the organization and the activities of trade unions. It refers the Government to its previous comments in this regard.

With reference to the observations made by the Confederation of Progressive Trade Unions of Turkey (DISK), the Committee notes from section 43 of Act No. 4688 that, when a matter is not regulated by the Act, the provisions of the Law on Associations No. 2908, shall apply. Further, under section 63 of Act No. 2821, unions are subject, in particular, to the provisions of the Law on Associations, which are not contrary to Act No. 2821. The Committee asks the Government in its next report to specify the matters relating to the functioning and the activities of trade unions which are governed by the law on associations and the practical implications for trade unions of these provisions.

1. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes free from government interference - public servants. In its previous comments, the Committee had noted that section 35 of Act No. 4688 made no mention of the circumstances in which strike action may be exercised in the public service. It had also noted the comments made by the Government on the specificity of the status of public servants in respect of the right to strike. Noting the absence of comments from the Government on this particular issue and the observations made by the Turkish Confederation of Employer Associations (TISK), the Committee would like to reiterate the following: the restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). The Committee would also like to recall that restrictions to the right to strike by the imposition of compulsory arbitration can only be justified in respect of this limited category of public servants and those working in essential services in the strict sense of the term. Further, where the right to strike may be prohibited or limited, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity. In these circumstances, the Committee must once again request the Government to take the necessary measures to ensure that those public servants who are not exercising authority in the name of the State and who may not be considered to be carrying out essential services in the strict sense of the term have the right to engage in industrial action. For those public servants who may be restricted in the exercise of industrial action, the Committee requests the Government to indicate the measures taken or envisaged to ensure that these workers have the full benefit of compensatory guarantees.

In its previous comments, the Committee had noted that, under section 10 of Act No. 4688, upon application to a labour court by an official of the Ministry of Labour and Social Security, a union executive committee can be removed if it does not comply with the requirements set out in the law in respect of the timing of the general assembly meetings, the majority needed to summon an extraordinary general assembly or in respect of other meetings of the general assembly. In its report, the Government indicates that it is the labour court which decides on the removal of the union executive committee and that the appointment of a temporary administrator is provided to ensure continuity in the most important activities of the union. The Committee recalls that the removal of union executive bodies should be motivated solely by considerations related to protecting the members of organizations and should only be possible through normal judicial proceedings (see General Survey, op. cit., paragraphs 122 and 123). Section 10 provides for the removal of the executive bodies in case of non-respect of requirements set out in the law, whereas the Committee has considered that the requirements referred to should be left to the free determination of the occupational organizations and their members in their constitution and rules. The Committee therefore once again requests the Government to take the necessary measures to repeal section 10 of the Act so as to ensure that workers’ organizations may organize their administration and activities without interference by the public authorities.

2. The Committee further recalls the need to amend the following provisions:

-  Act No. 2821: section 37 (suspension and termination of the mandate of a union officer in case of candidacy to local and general elections or election);

-  Act No. 4688: section 10 (suspension and termination of the mandate of a union officer in case of candidacy to local and general elections or election - public service);

-  Act No. 2822: sections 25 and 70 (prohibition of protest and sympathy strikes and penal sanctions applicable for participation in "unlawful strike" not determined in accordance with the Convention); sections 29 and 30 (imposition of compulsory arbitration in respect of services which cannot be considered to be essential in the strict sense of the term); sections 21 to 23 as well as sections 27, 28, 35 and 37 (excessively long waiting period of nearly three months from the start of negotiations before a decision to call a strike may be taken); and section 48 (severe limitations on picketing).

The Committee asks the Government to indicate in its next report the measures taken to bring its legislation and practice on all outstanding points into full conformity with the Convention.

The Committee is raising a number of other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

With reference to its observation, the Committee requests that the Government provide further information on the following points.

1. Article 2 of the Convention. (a) The Committee notes the information provided by the Government that restrictions on the right to organize in respect of foreign workers and private security personnel are envisaged to be repealed by a draft bill amending Act No. 2821 on trade unions. The Committee requests that the Government keep it informed of any developments concerning foreign workers and private security personnel.

The Committee further notes the information provided by the Government concerning apprentices to the effect that they are considered as students enjoying special rights under the apprenticeship and vocational training Act No. 3308 and are thus regarded as workers with trade union rights. The Committee recalls that section 18 of Act No. 3308 prohibits apprentices from joining organizations. The Committee therefore requests that the Government repeal the abovementioned section to ensure that apprentices may fully exercise their rights under the Convention.

The Committee notes the indication in the Government’s report that there is no legislative restriction on the right of homeworkers to organize. The Committee notes, however, that the Act on trade unions defines workers as those with a contract of employment and that various workers’ organizations have indicated that this definition would exclude homeworkers. Noting that article 51 of the Constitution was amended with the aim of safeguarding the right to organize to a larger group, the Committee requests the Government to indicate the manner in which homeworkers may fully exercise their right to organize in the furtherance and the defence of their occupational interests.

The Committee notes the information provided by the Government concerning contract personnel to the effect that this category is covered by the new Act on public employees trade unions. In this respect, the Committee notes that under, section 3(a) of the Act, public employees are defined as those employees who are permanently employed, which would not seem consistent with the nature of the employment of contract personnel. Further, the Committee would also like to point out that contract personnel can be employed in other sectors than the public service and that these workers should also be guaranteed the right to organize to defend their interests. The Committee therefore requests the Government to indicate in its next report the measures taken or envisaged to ensure that contract personnel may fully exercise their right to organize.

The Committee notes that, under section 6 of the Act on public employees’ trade unions, to be a founder of a union, a public servant must have been in employment for two years. The Committee would like to underline that Article 2 of the Convention provides for the right of workers, without distinction whatsoever, to freely establish a union and considers that such a condition is incompatible with this Article. The Committee therefore requests the Government to take the necessary measures to repeal the condition concerning founding members in section 6 of the Act.

The Committee notes that amendments to article 51 of the Constitution were adopted recently, whereby the right to establish and join a union can be restricted on the following grounds: national security, public order, prevention of crime, general health and morals and the protection of the freedom of others. The Committee would like to draw the Government’s attention to paragraph 41 of its 1994 General Survey on freedom of association and collective bargaining which emphasizes that a state of emergency can only justify restrictions on the right to organize in circumstances of extreme gravity and on the condition that the restrictions are limited in scope and duration to what is strictly necessary to deal with the situation in question. The Committee considers that the general terms in which the abovementioned restrictions are set forth in article 51 of the Constitution could potentially give rise to unacceptable restrictions in respect of the rights under this Convention. It therefore requests the Government to consider amending article 51 in light of the above and, in the meantime, to keep it informed of any practical application of these restrictions.

(b) In its previous comments, the Committee had noted that section 22 of Act No. 2821 on trade unions prohibited workers from belonging to more than one union. The Committee notes the information provided by the Government in its latest report that until the completion of the procedure carried out to amend article 51 of the Constitution, no legislative amendment can be envisaged. While some amendments have now been made to article 51, the prohibition of concurrent membership in more than one union has not been repealed. The Committee therefore requests that the Government indicate in its next report the measures taken or envisaged to amend the constitutional provision, as well as section 22 of Act No. 2821, so that workers who are employed in more than one occupational activity may belong to the trade unions corresponding to each activity if they so wish.

In its previous comments, the Committee had noted that section 3 of Act No. 2821 on trade unions prohibited trade unions from being constituted on an occupational or workplace basis. The Committee notes with regret that the Government has not provided any specific information in this respect. It would recall that the right to join the organization of one’s own choosing includes the determination of the level of representation and therefore requests the Government to indicate in its next report the measures taken or envisaged to repeal this section of the Act.

The Committee further notes that under section 14 of the Act on public employees trade unions, public servants are not allowed to join more than one union and that under section 4 of the Act, public servants cannot establish organizations on an occupational and workplace basis. The Committee would like to repeat the comments made above in respect of the Trade Unions Act, which also apply to public servants, concerning the right of workers and employers to establish organizations of their own choosing, which includes the right to belong to more than one union when engaged in more than one occupational activity and the free determination of the level of representation. In these circumstances, the Committee requests the Government to amend sections 4 and 14 of the Act so as to ensure the right of public servants under Article 2 of the Convention.

The Committee notes from section 3(g) of the Act on public employees’ trade unions, that a confederation is defined as "the upper organization that at least five unions in different sectors established according to this law came together to found and which has a legal entity". In this respect, the Committee would like to draw the attention of the Government to paragraph 86 of its 1994 General Survey in which it recalls that national legislation can limit first-level organizations of public servants to that category of workers provided that, in particular, they may freely join federations and confederations of their own choosing, like organizations of workers in the private sector. The Committee therefore requests that the Government provide information concerning the practical application of section 3(g) and, if its impact is indeed to restrict the right of public servants’ unions to affiliate with the confederation of their own choosing, including in the private sector, to take the necessary measures to ensure that this restriction in respect of affiliation to upper-level organizations is removed.

2. Article 3. (a) In its previous comments and with reference to article 51 of the Constitution and section 14 of Act No. 2821 on trade unions, the Committee considered that any precondition for election of union officers concerning years of employment should be a matter to be determined by the organizations themselves. The Committee notes the information provided by the Government in its latest report that no legislative amendment is foreseen until such time as the procedure amending the relevant provisions of the Constitution has been carried out. Noting, however, that the amendment made to article 51 of the Constitution now appears to have repealed this precondition, the Committee requests the Government to indicate the measures taken or envisaged to amend section 14 of Act No. 2821 on trade unions so as to repeal the requirement of ten years of active employment in order to become an elected union officer, thereby effectively guaranteeing the right of workers’ organizations to elect their representative in full freedom.

The Committee further notes that section 18 of the Act on public employees’ trade unions provides for employees who are elected as union officers to be placed on unpaid leave from their institution but also refers to union branch executive members who are not on unpaid leave and who will continue in their jobs. The Committee requests the Government to clarify whether this section permits the workers’ organizations in question to determine whether union officers are to be full time or whether they will keep their jobs while serving the union and thus does not impose an obligation on union officers to take unpaid leave.

(b) The Committee notes the information provided by the Government in its report to the effect that the provision of Act No. 3984 prohibiting unions’ television and radio stations will be repealed by the amendment to Act No. 2821 on trade unions. The Committee requests the Government to keep it informed of any developments in this respect aimed at ensuring the right of trade unions to organize their administration and activities without interference by public authorities.

3. Article 4. The Committee notes that under section 37 of the Act on public employees’ trade unions, the dissolution of a union  or a confederation is ordered by the labour court  but that there is also a reference to section 54 of the Law on Associations. The Committee notes the comments made by the Confederation of Public Servants Trade Unions (KESK) to the effect that the Law on Associations empowers governors to dissolve a union or a confederation without any court decision. The Committee would like to draw the Government’s attention to paragraph 185 of its 1994 General Survey in which it states that if the legislation allows the dissolution of organizations by administrative authority, the organization thus affected must have the right to appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the administrative decision should not take effect until a final decision from the judicial body is handed down. The Committee requests the Government to indicate in its next report the effect of section 54 of the Law on Associations in this respect and to provide information concerning the extent of the Labour Court’s competency when hearing appeals against a request for union dissolution under section 37 of the Act on public employees’ trade unions.

4. Article 5. In its previous comments, the Committee noted that a draft bill had been prepared to repeal section 43 of the Law on Associations No. 2098 which required the permission of the Ministry of Internal Affairs in order for an association to invite any foreigner to Turkey or for a member of an association to be sent abroad at the invitation of a foreign association or organization. The Committee notes the information provided by the Government in its report that section 43 will be repealed by the amendment to Act No. 2821 on trade unions and requests the Government to keep it informed in this respect.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the information provided in the Government’s report as well as the comments made by the Confederation of Public Servants Trade Unions (KESK), by the Confederation of Turkish Trade Unions (TURK-IS), by the Energy-Building and Road Construction-Union (ENERJI-YAPI YOL SEN), by the Trade Union of Civil Officers Employed in Military Offices (ASIM-SEN), and the Turkish Confederation of Employers’ Associations (TISK).

In its previous comments, the Committee had requested the Government to provide information on the draft bill on public servants’ unions which was under preparation. In this regard, the Committee had recalled the need to adopt legislation to ensure the full rights of the Convention to public servants, including the right to strike for public servants who are not exercising authority in the name of the State.

The Committee notes the information given by the Government in its report that the bill which was soon to be adopted would govern the activities of the organizations of public servants already in existence. The Committee also notes the comments from the Government in respect of the right to strike for public servants to the effect that public servants enjoy a special employment status.

The Committee notes that the bill has been adopted and came into force on 12 August 2001 as Act No. 4688 on public employees’ trade unions. While noting that the adoption of the Act is part of a substantial reform process initiated by the Government, the Committee would like to draw the Government’s attention to certain discrepancies between the Act and the provisions of the Convention, as well as on a number of other points which the Committee had raised in its previous comments.

Article 2 of the Convention

Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. The Committee notes from sections 3(a) and 15 of the Act on public employees’ trade unions that several categories of public servants are denied the right to organize either because they are not covered by the Act or because they are specifically excluded from this right by the Act. The definition of "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 judges, lawyers, high-ranking officials, civilian civil servants at the Ministry of National Defence and the Turkish Armed Forces, employees at penal institutions, etc.) who are prohibited from joining trade unions. The Committee would like to underline that Article 2 of the Convention provides that workers without distinction whatsoever should have the right to form organizations of their own choosing. Consequently, all public servants should have the right to organize irrespective of the nature and the level of their responsibilities and of their professional status. As concerns senior public officials, the Committee considers that they should at least be entitled to establish their own organizations. The only admissible exception under the Convention concerns the armed forces and the police, and even in these areas it is understood that civilian workers at these institutions should be entitled to exercise this right fully as all other workers. The Committee therefore requests the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than members of the armed forces and the police, are fully ensured the right to organize in accordance with Article 2 of the Convention.

The Committee notes from the information submitted by the various workers’ organizations that public servants have already established a number of organizations that will become illegal by reason of the prohibitions and restrictions set forth in the law and noted above. The Committee notes from the transitional provisions that existing organizations have eight months to meet the conditions set out by the Act. It trusts that the Government will take the necessary measures to ensure that the application of the Act will not affect the activities of these organizations in a manner that would be in direct contravention with the Convention.

Article 3 of the Convention

1. Right of workers’ organizations to elect their officers freely. With reference to section 37 of the Trade Unions Act No. 2821, the Committee had noted in its previous comments the Government’s indications concerning the effect of candidacy of union officers to local and general elections on their union activities and the scope of the penalty of imprisonment in case of infringement of the law. The Committee had requested that the Government indicate measures to ensure that the conditions of eligibility for trade union officers are determined by the organizations themselves. The Committee notes with regret that the Government has not provided any information in its latest report in this respect. The Committee would like to recall once again that the effect of the candidacy of union officers to local and general elections is a matter to be left to the organizations’ internal rules and not for the Government to regulate. The Committee requests the Government to take the necessary measures to amend section 37 so as to enable workers’ organizations to determine freely whether union officers may remain in their posts during their candidacy or election to local or general elections.

As concerns public servants, the Committee notes that section 10 of the Act on public employees’ trade unions also addresses the impact of the candidacy of union officers to general and local elections on their union activities by providing that the positions in the union or confederation bodies of those who are candidates in the general or local elections remain in suspense during their candidacy period. In this respect, the Committee would like to recall the comments made above on the Trade Union Act, which also apply to civil servants union officers. The Committee therefore requests the Government to amend section 10 of the Act to ensure the right of civil servants’ organizations to elect their representatives in full freedom.

2. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes free from government interference. In its previous comments, the Committee had made a number of points concerning the prohibition and the restriction of the right to strike provided for under section 54 of Act No. 2822 on collective labour agreements, strikes and lockouts. In particular, the Committee had drawn the Government’s attention to certain principles concerning the general prohibition on sympathy strikes, namely, that workers should be able to take such action provided that the initial strike they are supporting is itself lawful. The Committee had also pointed out that sanctions for strike action, in particular penalties of imprisonment, should only be possible where the prohibitions for strike actions are in conformity with the principles of freedom of association. With reference to sections 29, 30 and 32 of Act No. 2822, the Committee had also recalled that restrictions on strike action, in particular through the imposition of compulsory arbitration, could only be justified in respect of essential services in the strict sense of the terms, public servants exercising authority in the name of the State and in cases of acute national crisis. The Committee notes the information provided by the Government in its latest report that no legislative reform in respect of the prohibition of protest and sympathy strikes can occur until the procedure to amend the relevant provisions of the Constitution is carried out and that a draft bill will amend section 29 of Act No. 2822 on collective agreements, strikes and lockouts by limiting the activities and services in which strike action is prohibited. The Committee expresses the hope that the Government will in the near future take the necessary measures to amend the abovementioned provisions so as to ensure the right of workers’ organizations to organize their activities without interference by the public authorities.

The Committee further notes that section 35 of the Act on public employees’ trade unions provides that in case of failure to reach an agreement one of the parties may call for a reconciliation committee, but makes no mention of the circumstances in which strike action may be exercised. It also notes the comments made by the Government on the special status of public servants in respect of the right to strike. In this respect, the Committee recalls that restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State (see General Survey on freedom of association and collective bargaining, 1994, paragraph 158). The Committee also recalls that restrictions to the right to strike by the imposition of compulsory arbitration can only be justified in respect of this limited category of public servants and those working in essential services in the strict sense of the term. Further, where the right to strike may be prohibited or limited, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity. The Committee therefore requests that the Government take the necessary measures to ensure that those public servants who are not exercising authority in the name of the State and who cannot be deemed to be carrying out essential services in the strict sense of the term have recourse to industrial action without penalty.

The Committee notes with interest the indications given by the Government in its latest report to the effect that provisional section 1 of Act No. 3218 imposing compulsory arbitration in export processing zones for a ten-year period will be repealed. The Committee requests that the Government keep it informed of any developments in this respect so as to ensure that workers in export processing zones have the possibility of taking industrial action in defence of their interests.

The Committee notes that section 10 of the Act on public employees’ trade unions governs in detail the timing of the general assembly meetings and the majority needed to summon an extraordinary general assembly or to hold the other meetings of the general assembly. Furthermore, this section provides that, upon application to a labour court by an official of the Ministry of Labour and Social Security, a union executive committee can be dissolved if the union does not comply with these requirements. The Committee underlines that Article 3 of the Convention provides that workers’ and employers’ organizations shall have the right to organize their administration and activities without interference by public authorities. In particular, the Committee points out 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 members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers or the appointment of temporary administrators by the administrative authorities are incompatible with the Convention (see 1994 General Survey, paragraph 122). The Committee therefore requests that the Government take the necessary measures to repeal section 10 of the Act so as to ensure that workers’ organizations may organize their administration and activities without any undue interference by the public authorities.

The Committee requests that the Government indicate in its next report the specific measures taken or envisaged to bring its legislation on the abovementioned points into full conformity with the Convention. It draws the Government’s attention to the availability of ILO technical assistance in this respect.

The Committee is raising a number of other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

With reference to its observation, the Committee requests the Government to provide further information on the following points.

1.  Article 2 of the Convention.  (a)  In its previous comments, the Committee noted that several categories of workers were denied the right to organize either because they were not covered by the Act respecting trade unions or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, private security personnel, contract personnel, apprentices and foreign workers. The Committee notes with regret that the Government has provided no information on this point in its latest report and once again requests the Government to indicate the measures taken or envisaged to ensure that the abovementioned workers may fully exercise this right.

(b)  In its previous comments, the Committee noted that section 22 of the Act respecting trade unions prohibited workers from belonging to more than one trade union. The Committee notes the Government’s reference to article 51 of the Constitution as the reason for not amending this provision. The Committee recalls however that its previous comments focused on the principle that workers who are employed in more than one occupational activity should have the right to belong to the unions corresponding to each of these activities should they so desire. It once again requests the Government to give consideration to amending both article 51 of the Constitution and section 22 of the Act so that such workers may belong to the trade unions corresponding to their differing occupational activity and to indicate any progress made in this regard.

(c)  In its previous comments, the Committee noted that section 3 of the Act respecting trade unions provided that trade unions should not be constituted on an occupational or workplace basis. Noting with regret that the Government has not provided any information in this respect, the Committee would recall that the right to join the organization of one’s own choosing includes the determination of the level of representation and expresses the hope that the Government will take the necessary measures to repeal this section of the Act to enable workers to organize at the occupational and workplace level.

2.  Article 3.  In its previous comments, the Committee noted a number of provisions in the Act respecting trade unions which unduly regulated internal trade union matters. It notes the Government’s indication in its latest report that it has no intention to amend the requirement of a minimum active employment prior to eligibility for trade union office because of its basis in article 51 of the Constitution. The Committee notes, however, that article 51 and section 14 of the Act provide that a worker must have at least ten years of active employment in order to become an elected officer of a union or confederation. It recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom and that public authorities should therefore refrain from any interference which might restrict the exercise of this right. The Committee considers therefore that any precondition for election concerning years of employment should be a matter to be determined by the members of a given workers’ organization and therefore requests the Government to indicate the measures taken or envisaged to repeal this requirement from both the Constitution and the Act.

The Committee notes with regret that the Government has not provided any information in respect of Act No. 3984 which prohibits union television or radio stations and requests the Government to indicate the measures taken or envisaged to repeal this prohibition so as to enable trade unions to organize their administration and activities without interference by public authorities.

3.  Article 5.  In its previous comments, the Committee noted with interest the Government’s indication that a draft Bill had been prepared and submitted to Parliament to repeal section 43 of the Associations Act No. 2098 which required the permission of the Ministry of Internal Affairs in order for an association to invite any foreigner to Turkey or for a member of an association to be sent abroad at the invitation of a foreign association or organization, under penalty of imprisonment. The Committee notes from the Government’s latest report that the proposed amendment became obsolete because of the 1999 general elections and subsequent opening of the new session of the Parliament and therefore a new Bill has been drafted to exempt union officials from this requirement. The Committee trusts that this provision will be repealed in the very near future and requests the Government to indicate the progress made in this regard.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report, as well as the comments made by the Confederation of Turkish Trade Unions (TÜRK-IŞ), the Confederation of Progressive Trade Unions of Turkey (DISK) and the Turkish Confederation of Employers’ Associations (TISK).

1.  Right of workers’ organizations to elect officers freely.  In its previous comments, the Committee noted that section 37 of the Trade Unions Act No. 2821, as amended in June 1997, still provided that union officers may not also be candidates for local administrative and general parliamentary elections, under penalty of imprisonment of up to two years (section 59(6)). In its latest report, the Government indicates that union executive officers may become candidates for local or general elections without losing their union status; rather their official functions are suspended and terminated only if they are elected. According to the Government, this provision is in line with the constitutional principle that members of Parliament represent not merely their own constituencies and constituents, but the nation as a whole. As concerns the penalty of imprisonment, the Government indicates that section 59(6) is only applicable to the second paragraph of section 37. While noting this final point, the Committee must once again recall that it is the prerogative of workers’ and employers’ organizations to determine the conditions for electing their leaders, and the authorities should refrain from any undue interference in the exercise of the right of workers’ and employers’ organizations to elect their officers in full freedom, as established under Article 3 of the Convention. Thus, the effect of being candidate or being elected in local or general elections should be left to the determination of the trade union members in their respective statutes and not a matter for the Government to regulate. The Committee therefore once again requests the Government to indicate the measures envisaged to repeal this restriction and to ensure that the conditions of eligibility for trade union office are determined by the organizations themselves.

2.  Right to organize of public servants.  As concerns the right to organize for public servants, the Committee notes from the Government’s report that the draft bill on public servants’ unions submitted by the Government has been approved by the Parliamentary Committee on Health and Social Affairs with several amendments. However, the Parliamentary Committee on Planning and Budget has not concluded its work yet. The Government provided the latest version of the draft Bill in Turkish with its report, indicating that it was still subject to amendments that might be proposed by the Committee on Planning and Budget and General Assembly. The Committee regrets however that the Government did not respond to the 1999 comments made by DISK to the effect that this Bill was in direct contravention with certain principles of freedom of association. The Committee requests the Government to provide information in its next report in reply to the comments made by DISK when the Committee will also be in a position to fully examine the contents of the draft Bill. In this respect, the Committee recalls the need to adopt legislation to ensure the full rights of the Convention to public servants, including the right to strike for public servants who are not exercising authority in the name of the State. It requests the Government to indicate in its next report any developments in respect of the draft Bill.

3.  Rights of workers’ organizations to organize activities and formulate their programme free from Government interference.  As concerns its previous comments in respect of certain restrictions on strike action, the Committee notes the information provided in the Government’s report. It notes with regret however that the Government has not provided any information in respect of the prohibition of protest and sympathy strikes (section 54) and the severe sanctions, including imprisonment, for participation in "unlawful" strikes not determined in accordance with freedom of association principles, provided for in Act No. 2822 on collective labour agreements, strikes and lockouts of 5 May 1983, other than to say that no amendments are foreseen in respect of sympathy strikes because of a corresponding provision in article 54 of the Constitution. In this respect, the Committee would draw the Government’s attention to paragraphs 168 and 177 of the 1994 General Survey on freedom of association and collective bargaining in which it has indicated that: (1) a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful; and (2) sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Furthermore, if measures of imprisonment are at all to be imposed, they should be justified by the seriousness of the offences committed. The Committee requests the Government to take the necessary measures to amend its legislation, including where necessary the Constitution, in accordance with these principles and to indicate in its next report the measures taken or envisaged in this regard.

As concerns the imposition of compulsory arbitration (section 32 of Act No. 2822) in respect of services which cannot be considered to be essential in the strict sense of the term (sections 29 and 30), the Committee notes the information and statistics provided in the Government’s report. The Committee must recall, however, that such restrictions on strike action can only be justified in respect of essential services, public servants exercising authority in the name of the State and in cases of acute national crisis. It further recalls that essential services are only those the interruption of which would endanger the life, personal safety or health of whole or part of the population (see 1994 General Survey, paragraph 159), whereas sections 29 and 30 of Act No. 2822 prohibit strike action in activities and services, including property saving, funeral and mortuary, exploration, production and refining of gas and petroleum, banking and public notaries, sanitation, educational and training or day nursery and old‑age retirement homes, and cemeteries. In this respect, the Committee draws the Government’s attention to paragraph 160 of its 1994 General Survey wherein it states that, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, the authorities could establish a system of negotiated minimum service in other services which are of public utility rather than impose an outright ban on strikes, which would be limited to essential services in the strict sense of the term.

Moreover, the Committee considers that sections 21 to 23 of Act No. 2822, read with section 27, require an excessively long waiting period of almost three months from the start of negotiations before a decision to call a strike may be taken. Noting from the Government’s report that the Ministry of Labour and Social Security has prepared a draft bill to amend Act No. 2822, among others, the Committee requests the Government to take the necessary measures to amend sections 29 and 30 so as to ensure that strike action may only be prohibited in respect of essential services in the strict sense of the term, public servants exercising authority in the name of the State and in cases of acute national crisis and to amend sections 21 to 23 so as to ensure that the waiting period prior to declaring a strike is not excessively long.

As concerns the right to strike in export processing zones (EPZs), the Committee recalls that Act No. 3218 of 1985 imposes compulsory arbitration for a ten‑year period in EPZs for the settlement of collective labour disputes. According to the Government’s report under Convention No. 98, the ten‑year period laid down under the Act expired in the Mersin and Antalya zones in 1997 and will come to an end in the Aegean and Atatürk Airport zones in 2000. The Committee would nevertheless recall that the imposition of compulsory arbitration poses a severe limitation on the right of workers’ organizations to organize their activities and formulate their programmes free from interference by the public authorities in accordance with Article 3 of the Convention. It therefore requests the Government to indicate in its next report the measures taken or envisaged to amend Act No. 3218 so that all workers in export processing zones have the possibility of taking industrial action in defence of their interests.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring the legislation into conformity with the abovementioned points and once again recalls that ILO technical assistance is available in this regard should the Government so desire.

Finally, the Committee is raising a number of other points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its observation, the Committee requests the Government to provide further information on the following points.

1. Article 2 of the Convention. (a) In its previous comments, the Committee noted that several categories of workers were denied the right to organize either because they were not covered by the Act respecting trade unions, or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, private security personnel, contract personnel, apprentices and foreign workers. While noting the Government's indication that apprentices may not join trade unions since they are employed for educational purposes under apprenticeship contracts, the Committee must once again recall that this Article of the Convention provides the right to organize for all workers, without distinction whatsoever (including apprentices who should have the right to benefit from trade union representations), and requests the Government to indicate the measures taken or envisaged to ensure that the above-mentioned workers may fully exercise this right.

(b) In its previous comments, the Committee noted that section 22 of the Act respecting trade unions prohibited workers from belonging to more than one trade union. While noting the indication in the Government's report that the prohibition of more than one union membership is aimed at overcoming the difficulties and disputes in determining the competent trade union to bargain on behalf of the workers in a given undertaking, the Committee must recall that it had requested the Government to envisage measures to amend this provision to enable workers who are employed in more than one occupational activity to belong to the corresponding unions if they so wish. The Government is requested to indicate in its next report any progress made in this regard.

(c) In its previous comments, the Committee noted that section 3 of the Act respecting trade unions provided that trade unions should not be constituted on an occupational or workplace basis. While noting the Government's indication that this provision was designed to help create strong unions, the Committee would recall that the right to join the organization of one's own choosing includes the determination of the level of representation. It expresses the hope that the Government will take the necessary measures to repeal section 3 of the Act to enable workers to organize at the occupational and workplace level.

2. Article 3. The Committee recalls that its previous comments concerned a number of provisions in the Act respecting trade unions which unduly regulated internal trade union matters. Beyond those already mentioned in its observation, these restrictions include the requirement of a minimum active employment prior to eligibility for trade union office (section 14), and the prohibition of union television or radio stations (Act No. 3984 of 13 April 1994). The Committee hopes that the Government will take the necessary measures to amend these provisions so as to enable trade unions to organize their administration and activities and to elect their officers without interference by public authorities.

3. Article 5. In its previous comments, the Committee raised the need to amend section 43 of Act No. 2908 concerning associations of 4 October 1983 which requires the permission of the Ministry of Internal Affairs in order for an association to invite any foreigner to Turkey or for a member of an association to be sent abroad at the invitation of a foreign association or organization, under penalty of imprisonment. The Committee notes with interest from the Government's report that a draft Bill amending this Act so as to repeal this requirement has been prepared and submitted to the National Assembly and requests the Government to indicate in its next report the progress made in this regard.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee takes note of the information provided in the Government's report, as well as the comments made by the Confederation of Turkish Trade Unions (TURK-IS), by the Energy, Road, Construction, Infrastructure, Title Deed Land Survey Public Sector Employees' Trade Union and by the Confederation of Turkish Employers' Associations (TISK). The Committee also notes the statement of the Government representative to the 1997 Conference Committee on the Application of Standards and the discussion which took place therein.

The Committee notes with interest the amendments made to the Trade Unions Act No. 2821 by Act No. 4277 of 26 June 1997. In particular, the Committee notes that this Act repeals certain provisions of sections 37, 39, 40 and 59 which had been the subject of its previous comments in respect of the prohibition of certain political activities of unionists, broad powers for state auditing of trade union accounts and the control over the use and receipt of funds. It notes, however, that section 37, as amended, continues to provide that union officers may not also be candidates for local administrative and general parliamentary elections, under penalty of imprisonment of up to two years (section 59(6)). The Committee must recall that it is the prerogative of workers' and employers' organizations to determine the conditions for electing their leaders, and the authorities should refrain from any undue interference in the exercise of the right of workers' and employers' organizations to elect their officers in full freedom, as established under Article 3 of the Convention. It therefore requests the Government to indicate the measures envisaged to repeal this restriction and to ensure that the conditions of eligibility for trade union office shall be determined by the organizations themselves.

As concerns the right to organize for public servants, the Committee notes from the Government's report that a new section was inserted into the Public Servants Act No. 657 concerning the right of public servants to form and join unions and upper-level organizations in accordance with the principles set forth in the Constitution and pertinent legislation. The Government adds that a draft Bill concerning public servants' unions was submitted to the National Assembly, general discussion has been completed and half of the proposed articles have been approved. Due to demands of the opposition parties, however, the legislative process is pending the re-evaluation and revision of some of the remaining articles. The Committee also notes in this respect the comments of TURK-IS and the Energy, Road, Construction, Infrastructure, Title Deed Land Survey Public Sector Employees' Trade Union to the effect that this Bill is in direct contravention with certain principles of freedom of association. Recalling the need to adopt legislation to ensure the full rights of the Convention to public servants, the Committee requests the Government to transmit a copy of the latest version of the above-mentioned Bill with its next report so that it may examine its compatibility with the Convention.

The Committee must also recall its previous comments in which it raised discrepancies between the legislation and the Convention on the following points:

-- restrictions on industrial action in Act No. 2822 on collective labour agreements, strikes and lockouts of 5 May 1983 (prohibition of protest and sympathy strikes (section 54), severe limitations on picketing (section 48) and a too long waiting period for calling strikes (sections 27 and 35), restriction on the right to strike for public employees in state enterprises (Civil Servants Act of 1965) and severe sanctions, including imprisonment, for participation in "unlawful" strikes not determined in accordance with freedom of association principles);

-- the imposition of compulsory arbitration at the request of any party (section 32 of Act No. 2822) in respect of many services which cannot be considered to be essential services in the strict sense of the term (sections 29 and 30).

The Committee expresses the firm hope that the Government will take the necessary measures in the very near future to amend this legislation in order to bring it into full conformity with the Convention and would recall that ILO technical assistance is available in this regard if the Government so desires.

Finally, the Committee is raising a number of other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

With reference to its observation, the Committee requests the Government to provide further information on the following points:

1. Article 2 of the Convention. (a) The Committee notes with interest that article 53 of the Constitution has been amended to permit trade unions of public officers to engage in collective bargaining. It notes from the Government's report, however, that civil servants are not included within the scope of article 51 of the Constitution concerning the right to organize nor are they covered by Act No. 2821 respecting trade unions. The Government has also indicated in its report that a Bill regulating the trade union rights of civil servants has been prepared and submitted to the Turkish Grand National Assembly. The Committee requests the Government to indicate in its next report the progress made in this regard and to transmit a copy of the Bill once it has been adopted.

(b) The Committee notes that several categories of workers are denied the right to organize either because they are not covered by the Act respecting trade unions or because they are specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, private security personnel, contract personnel, apprentices and foreign workers. The Committee recalls that this Article of the Convention provides the right to organize for all workers, without distinction whatsoever, and requests the Government to indicate the measures taken or envisaged to ensure that the above-mentioned workers also benefit from this right.

(c) The Committee notes that section 22 of the Act respecting trade unions prohibits workers from belonging to more than one trade union. The Government is requested to indicate the measures taken or envisaged to amend this provision to enable workers who are employed in more than one occupational activity to belong to the corresponding unions if they so wish.

(d) The Committee notes that section 3 of the Act respecting trade unions provides that trade unions shall not be constituted on an occupational or workplace basis. The Committee recalls that this Article of the Convention provides that workers shall have the right to join and form the organization of their own choosing and requests the Government to indicate any measures taken or envisaged to repeal section 3 of the Act to enable workers to organize at the occupational and workplace level if they so wish.

2. Article 3. (a) The Committee notes that the Act respecting trade unions contains a number of provisions regulating internal trade union matters which should better be left to the determination of the trade unions themselves. Such restrictions include the requirement of a minimum active employment prior to eligibility for trade union office (section 14), the continued prohibition of certain political activities (sections 37, 39, 58 and 59), broad powers for state auditing of trade union accounts (section 59(5)), control over the use and receipt of funds (sections 39 and 40), and the prohibition of union television or radio stations (Act No. 3984 of 13 April 1994). The Government is requested to indicate the measures taken or envisaged to repeal or amend these provisions so as to enable trade unions to organize their administration and activities and to elect their officers without interference by public authorities.

(b) The Committee notes that Act No. 2822 respecting collective labour agreements, strikes and lockouts of 5 May 1983 contains a number of provisions restricting the right to strike which are not in conformity with the principles of freedom of association. Such restrictions concern the prohibition of protest and sympathy strikes (section 54), severe limitation on picketing (section 48), and on the period for calling strikes (sections 27 and 35), restriction on the right to strike for public employees in state enterprises (Civil Servants Act of 1965), and the imposition of compulsory arbitration at the request of any party (section 32) in many services which cannot be considered to be essential in the strict sense of the term (sections 29 and 30). The Committee further notes that heavy sanctions, including imprisonment, are provided in sections 72-79 of this Act for participating in "unlawful strikes" the prohibition of which, however, is contrary to the principles of freedom of association. The Committee would recall that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and, furthermore, if measures of imprisonment are at all to be imposed they should be justified by the seriousness of the offenses committed. It requests the Government to indicate the measures taken or envisaged to amend the provisions of the Act respecting collective agreements, strikes and lockouts so as to bring it into conformity with the principles of freedom of association.

3. Article 5. The Committee notes that section 43 of Act No. 2908 concerning associations of 4 October 1983 requires the permission of the Ministry of Internal Affairs in order for an association to invite any foreigner to Turkey or for a member of an association to be sent abroad at the invitation of a foreign association or organization, under penalty of imprisonment. The Committee considers that this requirement may seriously interfere with the rights of workers' and employers' organizations in their association with international organizations and requests the Government to indicate the measures taken or envisaged to eliminate this requirement except as it may concern a purely procedural requirement for entry visas.

4. Finally, the Government is requested to provide, with its next report, a copy of sections 536 and 537 of the Penal Code (in English if available) as well as a copy of the Export Processing Zones Act No. 3218.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information provided in the Government's first report, as well as the comments made by the Confederation of Turkish Trade Unions (TURK-IS) in communications dated 18 February 1994, 4 July 1994, 8 July 1995 and 17 June 1996 and by the Confederation of Progressive Trade Unions of Turkey (DISK) in a communication dated 24 February 1995. It also takes note of the communication of the Turkish Confederation of Employer Associations (TISK) sent with the Government's report. Finally, the Committee notes the conclusions of the Committee on Freedom of Association in Cases Nos. 1810 and 1830 (303rd Report of the Committee, approved by the Governing Body at its 265th Session (March 1996)).

The Committee notes with interest that article 52 of the Constitution which prohibited all political activity undertaken by a trade union has been repealed by Act No. 4121 of 23 July 1995 amending the Constitution. While noting that several other articles of the Constitution have been amended to ensure fuller respect for trade union rights (for example, repeal of other articles banning political activity for trade unions (articles 69, 135 and 171), and the granting of the right of trade unions of public officers to bargain collectively (article 53)), certain discrepancies as concerns Articles 2 and 3 of the Convention remain both in Act No. 2821 respecting trade unions, as amended by Act No. 4101 of 4 April 1995 and in Act No. 2822 of 5 May 1983 respecting collective labour agreements, strikes and lock-outs (for example: civil servants are not protected by the amended Act respecting trade unions; a wide range of political activities are still prohibited under the Act respecting trade unions (sections 37, 39, 58 and 59); and several provisions of the Act respecting collective labour agreements restrict the right to strike in contravention with the principles of freedom of association (sections 27, 29, 30, 32, 35, 48, 54 and 72 to 79)). The Committee hopes that the necessary measures will be taken in the near future to bring these Acts into full conformity with the provisions of the Convention and with the recent, important changes made to the Constitution.

Furthermore, the Committee considers that the trade union legislation in Turkey is overly detailed and regulates several matters which should be left to the competence of the constitutions and statutes of the workers' and employers' organizations themselves. It expresses the hope that the Government will take the necessary measures in the near future to simplify the legislation and leave greater autonomy to these organizations to organize their own activities and administration.

The Committee notes with interest the Government's indication to the Committee on Freedom of Association in respect of Cases Nos. 1810 and 1830 that it intends to continue amending its legislation to bring it in line with Convention No. 87 and would recall that ILO technical assistance is available in this regard if the Government so desires.

Finally, the Committee is raising a number of other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

In communications dated 4 July 1994 and 24 February 1995, the Committee received observations from the Confederation of Turkish Trade Unions (TURK-IS) and the Confederation of Progressive Trade Unions of Turkey (DISK) respectively concerning the application of the Convention. In this context, the Committee regrets to note that the Government has not replied to these observations. During its present meeting, however, the Committee has received the Government's first report which will be examined at its next meeting. The Committee requests the Government to transmit without delay its comments on the observations made by TURK-IS and DISK.