Effect given to the recommendations of the committee and the Governing Body - Report No 338, November 2005

Effect given to the recommendations of the Committee and the Governing Body

1. 328. The Committee examined this case at its meeting in November 2004 and made the following recommendations [see 335th Report, para. 1378]:
   • (a) Recalling that it has already observed in a similar case concerning Turkey that the Government needed to amend its legislation in order to ensure a more effective protection of workers against all acts of anti-union discrimination, the Committee requests the Government to ensure that the competent labour authorities conduct an investigation promptly into the reasons for which 246 trade union members were dismissed on 27 September 2003 and, if it is found that there has been anti-union discrimination, to take all necessary measures with a view to their reinstatement in their posts without loss of pay or, if the competent court were to decide that reinstatement is not possible, to ensure that the dismissed workers receive full compensation for the prejudice suffered. The Committee requests to be kept informed in this respect.
   • (b) Noting that 50 trade union members who were dismissed between 30 September and 10 October 2003 have filed a lawsuit for unjustified dismissal at the 8th Istanbul Industrial Court, the Committee requests the Government to keep it informed on the progress of the proceedings and to communicate a copy of the final decision once rendered.
   • (c) The Committee requests the Government to amend section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822, so as to bring it in line with the principle according to which, if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members. The Committee requests to be kept informed in this respect.
   • (d) The Committee deplores the fact that strikes have been suspended and compulsory arbitration imposed in numerous cases, and requests the Government to ensure in the future that such restrictions may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or an acute national crisis.
   • (e) The Committee requests the Government to amend section 33 of Act No. 2822 so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned. The Committee requests to be kept informed in this respect.
2. 329. In a communication dated 25 July 2005, the Government recalled the facts of this case, pointing out that section 33(1) of the Collective Agreements, Strike and Lockout Act No. 2822 stipulated that if a lawful strike was considered to be prejudicial to public health or national security, the Council of Ministers could, by decree, suspend the strike for a period of 60 days. Section 34 of the Act stated that upon the entry into force of the decree, the Minister of Labour and Social Security with the assistance of a mediator, would choose from the list of official mediators and would make every effort to resolve the conflict. The provisions of the Act also recognized the trade unions’ right to appeal against the decree of the Council of Ministers.
3. 330. The Government further recalled that the complainant in this case, i.e. the Glass, Cement and Soil Industries Workers’ Union (Kristal-Is) had announced on 31 October 2003 its decision to strike at the Turkish Glassware Factories and its affiliated workplaces as of 9 December 2003. Since the strike was considered to be prejudicial to national security, it was suspended for 60 days by a decree issued by the Council of Ministers on 4 December 2003 (published in the Official Gazette on 8 December 2003). The Minister of Labour and Social Security appointed Professor Dr. Mr. Fevzi Sahlanan as the official mediator to resolve the conflict under section 34 of Act No. 2822. The trade union lodged an appeal at the 10th Chamber of the Council of State against the decree of the Council of State which suspended the execution of the decree on 12 January 2004. After this decision by the Council of State, the trade union started the strike on 30 January 2004. However, the Council of Ministers issued again on 11 February 2004 a decree suspending the strike for a period of 60 days (published in the Official Gazette on 14 February 2004). As the strike action was suspended for a second time, the Minister of Labour and Social Security reappointed Professor Dr. Mr. Fevzi Sahlanan as the official mediator to resolve the conflict peacefully. With the personal help of the Minister, the abovementioned official mediator mediated successfully between the parties and the relevant trade union and employer organization signed a protocol with a view to concluding a collective labour agreement. As a consequence, the strike decision taken by the complainant was dropped.
4. 331. The Government added on the issue of the unlawful dismissal of the workers from Pasabahce Glassware Factory in Eskisehir (see recommendation (a) above), that, as it had already previously reported, the employer was fined and the relevant trade union was informed of the action taken.
5. 332. With regard to the amendments to the Trade Unions Act No. 2821 and the Collective Agreements, Strike and Lockout Act No. 2822 (see recommendations (c) and (e) above), the Government stated that work on the amendments had been completed by a committee of academics and the draft texts had been submitted to the Ministry of Labour and Social Security in April 2003. The social partners had examined these draft texts and handed in their views and proposals. These draft amendments had also been discussed in academic quarters, panels and symposia. In the meantime, various new developments (new Act on Associations, new Civil Code, amendment to the last paragraph of article 90 of the Constitution, EU Progress Report and 2004 observations by the ILO Committee of Experts on the Application of Conventions and Recommendations) necessitated the re-evaluation of the draft bills amending the Trade Unions Act No. 2821 and the Collective Labour Agreements, Strike and Lockout Act No. 2822. The Tripartite Advisory Committee unanimously concluded that the abovementioned draft bills should be examined by a committee established with the participation of members of the committee of academics, experts appointed by the social partners and representatives of the Ministry of Labour and Social Security, taking into consideration the developments which took place concerning the abovementioned laws. It was also decided that this work should be completed by September 2005.
6. 333. With regard to the 50 per cent representativeness requirement found in section 12 of Act No. 2822 (see recommendation (c) above), the Government indicated that this section provided that a trade union representing at least 10 per cent of the workers engaged in a given branch of activity (excluding the branch of activity covering agriculture, forestry, hunting and fishing) and more than half of the workers employed in the establishment or each of the establishments to be covered by the collective labour agreement shall have power to conclude a collective labour agreement covering the establishment or establishments in question. In the new draft bill the 10 per cent requirement would be lowered to 5 per cent.
7. 334. With regard to its request for a prompt investigation into the reasons for which 246 trade union members were dismissed on 27 September 2003 (see recommendation (a) above), the Committee notes that according to the Government, the dismissals were found to be unlawful and the employer had been fined. The Committee recalls that although it had already noted this information in its previous examination of the case, it had also observed that the employer had been fined for a violation of section 28 of Labour Act No. 4857 which concerned the obligation to notify the trade union and undertake consultations in case of mass dismissals. The Committee further notes that in its latest communication the Government once again refrained from making observations on the allegations that the dismissed trade unionists were replaced with other workers and that the purpose of the dismissals was to prevent the union from reaching the 51 per cent representativeness requirement. The Committee therefore reiterates its previous request that the Government ensure that the competent labour authorities conduct an independent investigation promptly into the reasons for which 246 trade union members were dismissed on 27 September 2003 and, if it is found that there has been anti-union discrimination, to take all necessary measures with a view to their reinstatement in their posts without loss of pay or, if the competent court were to decide that reinstatement is not possible, to ensure that the dismissed workers receive full compensation for the prejudice suffered. The Committee requests to be kept informed in this respect.
8. 335. Noting that the Government does not provide any information on the 50 trade unionists who were dismissed between 30 September and 10 October 2003 and have filed a lawsuit for unjustified dismissal at the 8th Istanbul Industrial Court (see recommendation (b) above), the Committee once again requests the Government to keep it informed on the progress of the proceedings and to communicate a copy of the final decision once rendered.
9. 336. With regard to its previous request to amend section 12 of the Collective Agreements, Strike and Lockout Act No. 2822 (see recommendation (c) above), the Committee notes that the Government reiterates the previously furnished information according to which section 12 of Act No. 2822 currently indicates that a trade union shall have the power to conclude a collective labour agreement in an enterprise only if it represents at least 10 per cent of the workers engaged in a given branch of activity (excluding the branch of activity covering agriculture, forestry, hunting and fishing) and more than half of the workers employed in the establishment or each of the establishments to be covered by the collective labour agreement. The Government further adds that in the new draft bill the 10 per cent requirement would be lowered to 5 per cent.
10. 337. While taking due note of the steps taken to lower one of the two representativeness requirements set out in section 12 of the Collective Labour Agreements, Strike and Lockout Act No. 2822, the Committee once again recalls that it has requested the Government on more than one occasion to amend the absolute majority requirement which stipulates that a collective agreement may be negotiated only if a trade union represents an absolute majority of workers in an enterprise [see also Case No. 2126, 327th Report, paras. 846 and 847(d)]. The Committee recalls once again that if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 833] or they should be allowed to jointly negotiate a collective agreement applicable to the enterprise or bargaining unit. The Committee therefore once again requests the Government to amend section 12 of the Collective Agreements, Strike and Lockout Act No. 2822, so as to bring it in line with the principle according to which, if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members, or they should be allowed to jointly negotiate a collective agreement applicable to the enterprise or bargaining unit. The Committee requests to be kept informed in this respect.
11. 338. With regard to its request to amend section 33 of the Collective Labour Agreements, Strike and Lockout Act No. 2822 so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned (see recommendation (e) above), the Committee observes that the Government does not provide any response. The Committee notes that according to the Government, work on the amendments to the Trade Unions Act No. 2821 and the Collective Labour Agreements, Strike and Lockout Act No. 2822 by a committee of academics had been completed in April 2003. The draft texts prepared by the committee had been submitted to the Ministry of Labour and Social Security and the social partners handed in their views and proposals on the draft amendments, which were also discussed in the academic quarters, panels and symposia. In the meantime, various new developments (new Act on Associations, new Civil Code, amendment to the last paragraph of article 90 of the Constitution, EU Progress Report and 2004 observations by the ILO Committee of Experts on the Application of Conventions and Recommendations) necessitated the re-evaluation of the two draft bills. The Tripartite Advisory Committee therefore unanimously concluded that the draft bills should be examined by a committee established with the participation of members of the committee of academics, experts appointed by the social partners and representatives of the Ministry of Labour and Social Security, taking into consideration the developments which took place concerning the abovementioned laws. It was also decided that this work should be completed by September 2005.
12. 339. Noting that work on the amendments to the Trade Unions Act No. 2821 and the Collective Labour Agreements, Strike and Lockout Act No. 2822 should normally be completed in September 2005, the Committee once again requests the Government to inform it of the steps taken to ensure that section 33 of Act No. 2822 is appropriately amended so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned. The Committee notes furthermore that this issue is also the subject of Case No. 2329 examined by the Committee at its current session and refers the Government to the conclusions and recommendations formulated on that case.