REPRESENTATION (article 24) - TURKEY - C158 - 2000

- Report of the Committee set up to examine the Representation alleging non-observance by Turkey of the Termination of Employment Convention, 1982 (No.158), made under article 24 of the ILO Constitution by the Confederation of Turkish Trade Unions (TÜRK-IS)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. Report of the Committee set up to examine the representation alleging non-observance by Turkey of the Termination of Employment Convention, 1982 (No. 158), made under article 24 of the ILO Constitution by the Confederation of Turkish Trade Unions (TÜRK-IS)
2. 1. In a communication dated 21 February 2000, TÜRK-IS made a representation under article 24 of the Constitution of the International Labour Organization alleging that the Government of Turkey had not adopted satisfactory measures for the observance of the Termination of Employment Convention, 1982 (No. 158).
3. 2. The ratification of Convention No. 158 by Turkey was registered on 4 January 1995; it entered into force for that country on 4 January 1996.
4. 3. In accordance with article 1 of the Standing Orders relating to the procedure to be followed for the examination of representations, the Director-General acknowledged receipt of the representation, informed the Government of Turkey thereof, and transmitted it to the Officers of the Governing Body.
5. 4. At its 277th Session (March 2000), the Governing Body, on the recommendation of its Officers, declared the representation receivable and set up a Committee to examine it, composed of Mr. P. Barcia (Government member, Portugal, Chairman), Ms. L. Sasso Mazzufferi (Employer member, Italy), and Ms. P. O'Donovan (Worker member, Ireland).
6. 5. The Government of Turkey presented its observations in a communication dated 28 April 2000.
7. 6. The Committee met on 9 November 2000 to discuss and adopt the present report.
8. I. Examination of the representation
9. 1. Allegations by the complainant organization
10. 7. The complainant organization recalls that the Governing Body adopted a report at its 268th Session in March 1997, concluding an earlier representation on the application of the same Convention, (Endnote 1) which recommended, inter alia, that the Government take as soon as possible the necessary measures to give full effect to the provisions of the Convention. Yet, according to the complainant, the National Assembly has not debated in plenary session the Bill which was intended to bring the national legislation into line with the provisions of the Convention.
11. 8. TÜRK-IS alleges that, with the exception of Act No. 657 respecting civil servants, the laws applicable to wage employment do not contain any provisions which would guarantee that the employment of a worker may not be terminated "unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service", as required under Article 4 of the Convention. The complainant further alleges that Article 6 of the Convention is not applied, as section 17(1) of the Labour Act authorizes dismissal for temporary absence from work because of illness.
12. 9. In addition, TÜRK-IS states that the Labour Act does not provide a worker dismissed for reasons relating to his conduct or work the right not to be dismissed "before he is provided an opportunity to defend himself against the allegations made", although the right to defend oneself prior to dismissal is established in Article 7 of the Convention. Nor is the worker provided the right to appeal to an independent body, as required under Article 8 of the Convention. Consequently, Article 9 assigning the burden of proof during an appeal, and Article 10 specifying remedies for wrongful dismissal, are also not complied with.
13. 10. TÜRK-IS alleges that section 17-II of the Labour Act defines "professional misconduct" and "improper behaviour" more broadly than the definition contained in Article 11 of the Convention, thereby undermining the right to notice of termination of employment or severance payment in lieu of notice. 11. The complainant also states that section 14 of the Labour Act and section 20 of the Maritime Labour Act (No. 854) require a minimum of one year of service with the same employer for entitlement to severance pay, and section 6 of the Journalists Labour Act (No. 5953) requires a minimum of five years of professional experience for such an entitlement. 12. Lastly, TÜRK-IS states that no provisions exist in national legislation requiring prior consultation with workers' representatives in the event of contemplated termination of employment for economic, technological or structural reasons, contrary to the requirement of Article 13 of the Convention.
14. 2. The Government's statement 13. The Government states that a Bill to amend the relevant labour legislation in order to bring it fully into line with the Convention was submitted in April 1995, but was returned to the Ministry of Labour in March 1996 for resubmission. Another Bill was returned to the Ministry of Labour because of early general elections held in April 1999. It states that the difficulty in adopting new legislation on termination of employment stems from the procedural requirements with regard to legislative changes, as well as from lack of consensus between the social partners on some issues related to job security.
15. 14. With respect to the allegations concerning Article 6 of the Convention, the Government states that under section 17 of the Labour Act, in the case of illness arising from deliberate acts or drunkenness, a worker may be dismissed for temporary absences of three successive working days or more than five working days in a month. In the case of other illnesses, the employer may terminate the contract without notice only if the illness continues more than six weeks beyond the notice periods set out in section 13 of the Labour Act, depending on the length of service of the worker concerned. In the event of pregnancy or confinement, this period begins only at the end of 12 weeks of absence with pay and subsequently six months of absence without pay if requested.
16. 15. The Government states that there is no impediment to the right of appeal to a court against a termination. Therefore, it considers that Article 8, paragraph 1, of the Convention is applied.
17. 16. With regard to Article 11, the cases of serious misconduct that TÜRK-IS considers to exceed the definition set out in the Convention are, in the Government's view, legitimate bases for immediate dismissal without notice.
18. 17. The Government states that it applies Article 12 of the Convention in that section 14 of the Labour Act requires an employer to pay seniority severance pay in the event of termination of employment for reasons specified by the relevant provisions of legislation. The amount to be paid shall be equal to "30 days of wages for each complete year of service or in proportion for any fraction thereof effective from the date of employment and for the entire duration of the contract". Employment under two or more contracts shall be counted as one period for calculating severance pay. However, the Government adds that "it would be more appropriate to consider one year of service for entitlement as a qualifying period". Furthermore, the requirement of five years in the occupation of journalism for entitlement to severance pay under Act No. 5953 does not refer to one employer only. Lastly, the Government notes that an unemployment insurance system has been established as of 1 June 2000, although the entitlement to severance pay will continue.
19. 18. Additional information has also been received. See below, paragraph 24. II. Information received from an employers' organization
20. 19. The Committee has also been made aware that the Turkish Confederation of Employer Associations (TISK) submitted comments under article 23 of the Constitution which were transmitted with the Government's regular report on the application of the Convention under article 22 in 1999. The Government's report and the comments by TISK could not, due to their late arrival, be examined by the Committee of Experts on the Application of Conventions and Recommendations at its 1999 session.
21. 20. In those comments, TISK indicates that although it considers the Convention generally to be applied, it too believes that the requirement of a valid reason for dismissal is not fully applied in Turkey.
22. III. The Committee's conclusions
23. 21. The Committee recalls that the same facts were the subject of an earlier representation, filed simultaneously with the entry into force for Turkey of the Convention in 1996. It notes the Government's acknowledgement that, to date, no progress has been made in amending the legislation to bring it into line with the Convention, although Turkey ratified the Convention in 1995 and the Governing Body had urged the Government in 1997 to take the necessary steps to apply the provisions of the Convention fully.
24. 22. The Committee notes that the Labour Act (No. 1475) does not require an employer to give a valid reason, as defined in the Convention, for termination of permanent employment. Furthermore, sections 14(1) and 16 of the Maritime Labour Act (No. 845) and section 6 of the Journalists Labour Act (No. 5953) also do not require a valid reason for dismissal. The Committee also notes the view of the Turkish Confederation of Employer Associations (TISK) that, although it considers the Convention generally to be applied, it believes that the requirement of a valid reason for dismissal is not fully applied in Turkey.
25. 23. The Committee thus considers that Article 4 appears not to be applied. It follows from this conclusion that the rights under Articles 7, 8, 9 and 10 of the Convention, all of which flow from the fundamental right of protection from dismissal without a valid reason, also do not appear to be applied in practice. The Committee notes the Government's statement that there is no impediment to the right to appeal to a court against termination. Nevertheless, it notes that no cases of appeal against unjustified dismissal to any court have been cited in any of the Government's reports submitted under article 22 of the ILO Constitution. There would appear also to be other lacunae in the application of the Convention, which should be examined in detail by the Committee of Experts.
26. 24. The Committee notes with interest the recent initiatives taken by the Government to bring the national legislation into line with the provisions of the Convention. A copy of a bill the Government has prepared to amend Labour Act No. 1475 was received by the Office on 9 October 2000. The Committee notes in particular that the amendment would place on the employer the burden of proof to show just cause for termination of employment, in accordance with Article 9 of the Convention. Nonetheless, most of the problems of application raised in the previous and current representations do not appear to be addressed adequately in the bill. These include the requirement that dismissal be based on a valid reason related either to the capacity or conduct of the individual worker, or to the operational needs of the enterprise (Article 4); prohibition of certain bases for dismissal (Articles 5 and 6); the right to defend oneself against allegations of misconduct or incapacity prior to dismissal (Article 7); and remedies in case of unjustified dismissal (Article 10). The Committee encourages the Government to seek the assistance of the Office in finalizing the draft prior to discussion in Parliament, to ensure the full application of the Convention in Turkey.
27. 25. The Committee notes the difficulties cited by the Government in adopting the amending legislation which is intended to bring national law into conformity with the Convention. It recalls that the Government is obligated by its ratification of the Convention to take effective measures to apply it. Finally, it notes that the Committee of Experts is to carry out a detailed examination of the Convention's application by Turkey at its session immediately after the conclusion of the present session of the Governing Body.
28. 26. The Committee therefore concludes that the Convention does not appear to be fully applied, and again urges the Government - as did the conclusions on an earlier representation in 1997 - to take the measures necessary to bring national law and practice into conformity with the requirements of the Convention. It urges the Government to do so in line with the comments that the Committee of Experts may make at its session in November-December 2000.
29. 27. The Committee recommends that the Governing Body -
30. (a) adopt the present report;
31. (b) urge the Government:
32. (i) to report in detail to the Committee of Experts on progress made in this respect;
33. (ii) to take as soon as possible the necessary measures to give full effect to the provisions of the Convention in line with the conclusions of the present report and those of the Committee of Experts;
34. (c) declare closed the procedure initiated before the Governing Body following the representation made by the Confederation of Turkish Trade Unions (TÜRK-IS).
35. Endnote 1
36. GB.268/14/5.