Observación (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

The Committee notes the report provided by the Government, and the comments made by the Turkish Confederation of Employer Associations (TISK), the Confederation of Progressive Trade Unions of Turkey (DISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ).

I.  Application of minimum wage fixing machinery
  to home-based industries

1. With regard to the question of home work, TISK considers, in its comments provided in 2001 and 2002, that regulations in this field must take into account the differences in conditions and practices in each region, sector and enterprise. According to TISK, any form of standardization in the field of home work would affect the competitiveness of enterprises and would to a large extent eliminate the function fulfilled by this flexible form of employment. There is also a risk, if home work is subjected to regulations that are too strict, that jobs in the sector would shift to the informal sector of the economy. TISK considers, in this respect, that regulations in this field could not be based on the Labour Act No. 1475, since home work cannot be qualified as an employment relationship in the absence of the element of dependence by workers on the employer. TISK believes that it is unclear whether homeworkers can be considered as "employees", or rather as being "self-employed". Moreover, as home work is generally paid on the basis of piece-work, the establishment of a minimum wage would be impossible in view of the disparate nature of the work performed. TISK considers that, for all these reasons, an amendment of the national regulations on minimum wages with a view to including home work is not appropriate.

2. The Committee notes that the Government indicates in its report, with regard to home work, that the preparation of legal provisions respecting minimum wages in non-standard forms of work has not progressed adequately during the Seventh Five-Year Development Plan. For this reason, the Eighth Five-Year Plan, covering the period from 2001 to 2005, continues to have the objective of limiting unregistered employment, which continues to have an adverse effect on industrial relations and enterprises. The Government indicates in this respect that home work and domestic work are the two main fields in which the preparation of legislative texts is envisaged. However, it adds that difficulties have been encountered in defining the terms "worker", "employer" and "workplace". The Government also indicates that this issue has been the subject of reflection by the Supreme Court of Appeal, which found in a decision issued in June 2000 that, where the work is carried out under the instructions of an employer, it could constitute work performed under a contract of employment, even though it is paid at piece-rates.

3. The Committee recalls that, by virtue of Article 1 of the Convention, machinery must be created whereby minimum rates of wages can be fixed for workers employed in trades in which no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low, and particularly in trades or parts of trades carried on at home. The Committee regrets that, despite the commitments made in this respect on several occasions, the Government has still not succeeded in adopting laws or regulations extending the scope of the minimum wage to the above industries. It firmly hopes that the Government will make every effort to ensure that these categories of particularly vulnerable workers benefit, as soon as possible, from the provisions of the national legislation relating to minimum wages.

II.  Consultation and participation of employers’ and workers’
organizations for the determination and operation of
minimum wage fixing machinery

4. The Confederation of Progressive Trade Unions of Turkey (DISK) considers, in the comments made in 2001 and 2002, that the national legislation is not in accordance with Article 3, paragraph 2, of the Convention. Certain trade unions, such as DISK and the Confederation of Real Trade Unions of Turkey (HAK-IŞ), are not represented on the Minimum Wage-Fixing Board, which was established under section 33 of the Labour Act and is composed of five members representing each of the parties, with employers’ and workers’ organizations being selected from among the most representative. In view of the fact that the decisions of this Board are adopted by majority and that the Turkish State is the largest employer in the country, in the view of DISK there is an obvious imbalance between workers’ representatives, on the one hand, and employers’ representatives, on the other. DISK therefore considers that consultations have not been held within the meaning of Article 3, paragraph 2(1), of the Convention, and that all the organizations of employers and workers concerned have not been consulted, in accordance with Article 3, paragraph 2(2).

5. The Committee notes with concern that the Government’s report does not contain information on the comments made by this organization. It recalls that, under the terms of Article 3, paragraph 2(1) and (2), of the Convention, all the organizations of employers and workers concerned shall be consulted for the purposes of determining the minimum wage fixing machinery and shall participate in its application. While waiting for the Government to provide its observations on the comments made by DISK, the Committee urges the Government to take all appropriate measures to ensure that the social partners participate on an equal footing in both the determination and operation of minimum wage fixing machinery.

III.  Revision of the minimum wage fixing machinery

6. In the comments made in 2001 and 2002, TISK expresses the hope that the Government will be able to complete the amendment of the national legislation reviewing the minimum wage fixing machinery. TISK indicates that it is in favour of differenciated treatment, based on whether or not a collective agreement is applicable in the workplace. It also hopes that an amendment will be made as soon as possible allowing derogations from the minimum-wage legislation where a collective agreement is applicable by permitting the determination of minimum wages by means of collective bargaining. TISK recalls that, under the terms of Article 1 of the Convention, minimum wage fixing machinery has to be created where no arrangements exist for the effective regulation of wages by collective agreement. It therefore considers that, a contrario, where collective agreements exist, the minimum wage should not be applicable.

7. With regard to the revision of the minimum wage fixing machinery, the Government indicates that the national Constitution was amended on 3 October 2001 and that article 55 of the Constitution now provides for the determination of minimum wages on the basis of the living conditions of workers, which should enable workers to maintain their standards of living. The Government adds that its Action Plan for 2001 provided for studies to be undertaken concerning the amendment of regulations on minimum wage fixing machinery. As it was not possible to complete these studies on time, this objective was also included in its Action Plan for 2002 with the target of adopting the amendments respecting minimum wage fixing machinery before the end of 2002.

8. The Committee notes that the Government’s report does not reply directly to the points raised by TISK and it therefore requests it to indicate its position on these matters in its next report. Furthermore, it recalls that under the terms of Articles 1 and 3, paragraph 2(3), of the Convention, read together, where a minimum wage has been established by law as being applicable to certain trades or parts of trades, it becomes compulsory for the employers and workers concerned, who cannot lower it either by individual agreements or, unless the competent authority gives general or specific authorization, by collective agreement. Furthermore, the Committee requests the Government to keep the International Labour Office informed of any technical measures taken in future to modify the minimum wage fixing machinery and continues to hope that the Government will make every effort to achieve a consensus on the proposed amendment to the minimum wage fixing machinery, and that it will soon be in a position to announce practical improvements in this respect.

IV.  Application of the Convention in practice

9. The Committee notes that TÜRK-IŞ reiterates the comments attached to the Government’s previous report. According to TÜRK-IŞ, the system of home work, which includes domestic workers as well as "subcontracted" workers, is the most common form of evading the protection provided for workers by the labour legislation and the national legislation on minimum wages should also apply to these two categories of employment. Furthermore, TÜRK-IŞ considers that the system of supervision of minimum wages is ineffective and the penalties very inadequate to prevent cases of non-compliance with the legislation, particularly when account is taken of the proliferation of clandestine employment and the growing numbers of small enterprises created in the informal sector.

10. With reference to the Committee’s observation in 2001 with regard to the measures taken or envisaged for the reinforcement of the supervisory and inspection machinery, especially in relation to homeworkers and workers employed in the informal sector, TISK considers that such measures are not the only means of combating in an effective manner practices which are mainly caused by economic factors. TISK considers that it is necessary to introduce greater flexibility into the national legislation and reduce the liability of employers, which adversely affects the workforce.

11. The Government indicates in this respect in its report on the Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99), that, since the entry into force on 1 August 1999 of Act No. 4421, the amount of the fines envisaged by Labour Act No. 1475 has been multiplied twelve fold. It also recalls that the Labour Inspection Department of the Ministry of Labour and Social Security has been carrying out studies with a view to modifying its inspection methods and to making labour inspection more effective. In this respect, it has targeted the implementation of sectoral inspections and inspections in small-scale enterprises. The Government adds that the recruitment of 100 new assistant labour inspectors was completed in 2001. With regard to the penalties imposed in cases of violations of the legislation on minimum wages, the Government states that it does not have detailed statistical information on the number of workers who have been the victims of such violations. However, it indicates that the work of compiling statistical data is currently under way with a view to achieving a better evaluation of the results of inspections. While awaiting the latter, the Government indicates that, of the 28,217 enterprises inspected in 2001, a total of 21 enterprises were penalized for violations of section 33 of the Labour Act respecting the minimum wage and that the total amount of the penalties imposed was around 196,000 million Turkish lira.

12. The Committee notes this information and hopes that the Government will continue to take all other appropriate measures with a view to strengthening the system of supervision and inspection. It notes that the Government does not specify whether the studies undertaken by the Labour Inspection Department, concluding that it is necessary to undertake sectoral inspections, have had the result of strengthening the supervision and inspection machinery, particularly with regard to homeworkers and workers in the informal sector. The Committee therefore requests the Government to provide more information on the means used to reinforce inspections in these fields, in which evasion of the legislation protecting workers and on minimum wages is reported to be most common.

13. Furthermore, the Committee requests the Government to provide further information on the work carried out on the machinery for determining and applying minimum wages by the Committee of Academics, which has been established to review national law with a view to bringing it into conformity with ILO standards, and which is composed of nine academicians representing the Government and the social partners on an equal footing.