Solicitud directa (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (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restrictions on the right to organize in respect of foreign workers and private security personnel are envisaged to be repealed by a draft bill amending Act No. 2821 on trade unions.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.