Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes that an ILO high-level mission visited the country from 28 to 30 April 2008 pursuant to a request by the Conference Committee on the Application of Standards in 2007.

The Committee notes the Government’s reports which contain, inter alia, replies to the comments made by the International Trade Union Confederation (ITUC) in communications dated 10 August 2006 (government communication dated 2 January 2007) and 28 August 2007 (government communications dated 9 January, 28 March and 17 June 2008). It also notes the Government’s reply to the communications by the Confederation of Public Employees Trade Unions (KESK) dated 2 September 2006 and 31 August 2007 (government communication dated 16 February 2007 and 9 January 2008); and by the Confederation of Progressive Trade Unions of Turkey (DISK) in communications dated 9 and 24 April 2007 (government communication of 16 October 2007).

The Committee also notes the comments made by the ITUC in a communication dated 29 August 2008, by KESK in a communication dated 1 September 2008 and by DISK in a communication dated 2 September 2008. The Committee requests the Government to provide its observations on these comments.

Articles 1 and 3 of the Convention. Protection against acts of anti-union  discrimination. In its previous comments, the Committee had noted, in reply to information communicated by workers’ organizations with regard to acts of anti-union discrimination against public employees who were trade union members or officials, various measures adopted in order to introduce dissuasive sanctions against acts of anti-union discrimination. Specifically, the new Turkish Penal Code No. 5237, which came into effect in June 2005, stipulates in section 118 that acts of force or threats to compel someone to join or not join a trade union or union activities, or to resign from a trade union or union office, shall be punished by imprisonment from six to 12 months and that obstruction of trade union activity through force, threats or other unlawful acts, shall be punished by imprisonment from one to three years. Section 135 stipulates that any person found guilty of unlawfully recording personal data, including trade union affiliates, shall be punished by imprisonment from six months to three years.

The Committee also recalls that with regard to the public sector, the Government had indicated that violations of section 18 of Act No. 4688 which prohibit acts of anti-union discrimination by any administrative officer will be punished with disciplinary measures in accordance with the legislation applicable to public personnel (Act No. 657). In its latest report, the Government adds that according to section 18(2) of Act No. 4688 a public employer cannot transfer a union representative or official without a valid reason and without indicating the reasons for the change clearly and precisely. Complaints regarding transfers communicated to the Ministry by trade unions are sent to the related institutions in order to evaluate the issue in accordance with section 18 of the Act and the Prime Ministerial circulars. Furthermore, according to section 18(3), a public employer cannot discriminate on the grounds of membership or non-membership of a trade union. In addition to this, section 18(a) of the Labour Act No. 4857 provides protection against unfair dismissals for trade union membership or participation in trade union activities outside working hours or, with the consent of the employer, within working hours.

While taking due note of these measures, the Committee also notes that the ITUC refers in its 2007 and 2008 comments to this widespread incidence of acts of anti-union discrimination in the public and private sectors, especially transfers of public employees who are trade union members or officers, interference in the activities of public sector trade unions by the Government as employer, and blacklisting and pressure to quit the union in the private sector.

The Committee requests the Government to indicate in its next report the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee trusts that the Government will take all necessary measures to ensure that the provisions of the Convention in this regard are applied both in law and in practice.

Article 4. Free and voluntary collective bargaining. The Committee recalls that for a number of years it has been referring to the dual criteria applied in order to determine the representative status of a union for the purposes of collective bargaining. Under section 12 of Act No. 2822, in order to be allowed to negotiate a collective agreement, a trade union must represent 10 per cent of the workers in a branch and more than half of the employees in a workplace. The Committee had previously taken note of a draft Bill amending Act No. 2822 in order to address this point. The Committee notes from the Government’s report that a Bill to amend Act No. 2822 includes amendments to abolish the 10 per cent threshold required at the sector level for a union to be recognized as a bargaining agent at the enterprise level. The said amendment, which is pending enactment in the Turkish Grand National Assembly, reads as follows:

A trade union affiliated to one of the confederations represented in the Economic and Social Council, active throughout the country in its branch of activity and organized in more than one workplace or establishment, or a trade union which is a member of a workers’ confederation with at least 80,000 members, shall have the power to conclude a collective labour agreement covering the establishment(s) in question if its members account for more than half of the workers employed in the establishment, or each of the establishments, to be covered by the collective labour agreement.

If the trade unions meeting the abovementioned conditions represent more than half of the workers employed in a workplace or establishment in which they are organized, they shall have the power to conclude a collective labour agreement covering the workplace or establishment in question. In the case of enterprise collective labour agreements, the establishments shall be considered as one single unit in the calculation of the absolute majority.

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; the Government expresses the view that after the proposed amendments to the legislation, this system will continue functioning smoothly and in line with ILO standards.

The Committee notes that according to the 2007 comments by the DISK, the draft bill maintains the status quo and does not produce any solution to the problems relative to collective labour relations or make any contribution to the free exercise of trade union rights.

The Committee observes that the text communicated by the Government replaces the 10 per cent requirement found in section 12 of Act No. 2822, with a requirement of affiliation to a major confederation in order for a union to be able to engage in collective bargaining at the workplace level. The Committee notes, however, that this system appears to continue to restrict the level of representation and collective bargaining which should be determined through free and voluntary negotiations. Furthermore, the Committee also observes that the amendment maintains the requirement that unions should represent the majority of workers in a workplace (50 per cent plus one) in order to enter into negotiations with the employer with a view to the conclusion of a collective agreement. The Committee recalls that in such systems, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members; however, this is prevented in this case by the requirement of affiliation to a major confederation. In particular, a representative enterprise union should be able to negotiate even if not affiliated to a confederation.

The Committee expresses the hope that the Government will take the necessary measures to review the draft bill and amend section 12 of Act No. 2822 so that where no union meets the 50 per cent membership criterion, the existing unions at the workplace or enterprise may bargain at least on behalf of their own members regardless of whether they are affiliated to a confederation or not. The Committee requests the Government to indicate in its next report the progress made in this regard, and so as to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4.

Collective bargaining in the public service. In its previous comments the Committee took note of information provided by the Government on the structure of collective negotiations in the public sector and raised certain issues concerning: (i) the need for additional information on the manner in which the direct employer participates in the negotiations alongside the financial authorities as part of the Public Employers Board which is the negotiating agent for the Government under section 3(h) of Act No. 4688; (ii) the need to amend section 28 of Act No. 4688 which limits the scope of negotiations to financial questions; (iii) the need for additional information on the manner in which section 34 of Act No. 4688 is applied in practice and the need to confirm that it is not applied in any way that gives the authorities, in particular the Council of Ministers, power to modify or reject collective agreements (section 34 of Act No. 4688 stipulates that, if an agreement is reached during the negotiation process, the agreed-upon text shall be submitted to the Council of Ministers for the appropriate administrative, executive and legal arrangements to be taken within three months, and the draft bills shall be submitted to the Turkish Grand National Assembly for enactment).

The Committee notes from the Government’s report that: (i) the Public Employers’ Board is composed of representatives of the Prime Minister, the Ministry of Finance, the Treasury, the State Personnel Presidency, as well as the public employers’ organization; (ii) although section 28 of Act No. 4688 limits the collective negotiations to the financial rights of public employees, the subjects other than financial rights have been put on the agenda in four collective negotiations carried out since 2004 and Memoranda of Understanding (MoU) were signed on subjects other than financial rights in 2004, 2006 and 2007; in 2005, a MoU was signed on all the collective negotiation issues including financial rights; (iii) following the signature of MoUs, commissions composed of representatives of trade unions and public employers in equal numbers work for the realization of the subjects agreed upon; the union claims are reflected in the MoU either as claims accepted by the Public Employer Board or as claims to be taken into consideration or evaluated by the Public Employer Board; although the union claims are favourably received by the Public Employer Board, it has been considered that these claims should be dealt with through a draft bill concerning restructuring of the personnel regime in the public service which has been on the agenda for nearly five years and which will apply to around 2.5 million public employees; (iv) the State Personnel Presidency carries out preparatory work for draft bills on the implementation of the issues agreed upon, in contact with the authority concerned if the issue is under the scope of another authority; draft bills prepared as a result of the above are submitted to the Prime Minister’s office; (v) the Tripartite Working Group in a meeting held on 28 December 2006 decided to amend Act No. 4688 in line with the observations of the Committee and work has been launched on this issue. The Ministry of Labour and Social Security has been working on this amendment and a draft bill to amend the preamble and sections 3(a) and 15 of Act No. 4688 have been communicated to the relevant institutions in order to receive their opinions. As a result of collective negotiations in 2007 between the Public Employers’ Board and two of the negotiating agents, the parties reached an agreement on the continuation of work on several subjects, four of which are related to the amendments to be made to Act No. 4688. The Confederation of Public Employees of Turkey (Turkiye Kamu Sen) and the All Municipal and Public Services Workers’ Trade Union (HAK-IS) attended the negotiations. Despite being a negotiating agent, the KESK did not attend.

Furthermore, in a direct request, the Committee had raised the need to amend section 34 of Act No. 4688 so that collective negotiations do not have to be concluded within a short time period of 15 days after which any disagreement is brought to the Reconciliation Committee. The Government indicates that although the time limit of 15 days is sufficient (as in general, five or six sessions have been held in the collective negotiations carried out so far and, if need be, the number of sessions can be increased), an amendment to extend this time limit to one month is under consideration in line with the demands of the social partners.

The Committee appreciates these developments.

The Committee notes the extensive comments made by the KESK and the ITUC on negotiations in the public sector. According to these comments, Act No. 4688 does not refer to the concept of collective bargaining but rather “collective consultative talks” restricted to financial issues; as a result, KESK has not attended the talks since 2007 in protest over the Government’s refusal to hold negotiations instead of consultations, enabling it to decide matters unilaterally. The KESK adds that section 30 of Act No. 4688 (which limits the possibility to engage in negotiations to the unions affiliated to the confederation which has the most members in each sector of activity), violates the Convention because it restricts the freedom to determine the parties to collective bargaining. Finally, the KESK indicates that pressure has been exerted since 2005 on local authorities by the Ministry of the Interior not to implement the 130 or so collective agreements that the KESK affiliated All Municipalities’ and Local Services’ Employees’ Union (TUM BEL SEN) had signed with municipal authorities during the previous 12 years; notwithstanding the fact that the European Court of Human Rights ruled in favour of the union on 21 November 2006, the Ministry has not changed this policy. More generally, it is reported that trade unions are not considered as social partners and the Government fails to consult them on major laws which affect workers’ interests.

In this regard, the Committee takes note of the Government’s reply according to which the “collective consultative talks” provided for in Act No. 4688 allow for negotiations on economic, social and individual rights and in case of disagreement, the Reconciliation Committee undertakes to resolve the disagreement. Representation on the basis of affiliation to a confederation with the most members in the sector of activity is in line with the principle of justice. With regard to the collective agreements signed by municipalities, the Government indicates that according to amended section 146(1) and (2) of Act No. 657, no wage can be paid to public employees and no benefit can be conferred on them other than those provided under the said Act. Collective agreements in the public sector are regulated by sections 3(h) and 29 Act No. 4688 and articles 28 and 53 of the Constitution. As public employees are not entitled to sign collective agreements, the agreements in question have been regarded as unlawful. In notification No. 158 of 6 January 2005, the Ministry of Finance indicated that the status of public employees depended on Acts Nos 657 and 4688, and it was impossible to act outside the scope of these Acts so as to enjoy rights which have not been accorded in line with these Acts. Consequently, the TUM BEL SEN trade union does not have the right to engage in collective bargaining.

The Committee takes note in this regard of the recently rendered final Judgement of the Grand Chamber of the European Court of Human Rights on the issue of collective agreements signed between TUM BEL SEN and municipalities (12 November 2008), in which it was found that:

“The right to bargain collectively with an employer had, in principle, become one of the essential elements of “the right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the [European Convention on Human Rights]. … Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any “lawful restrictions” that may have to be imposed on “members of the administration of the State”, a category to which the applicants in the present case did not, however, belong.”

In light of the above, the Committee once again emphasizes that all public employees who are not engaged in the administration of the State should have the right to engage in free and voluntary collective bargaining, within time limits appropriate to allow for meaningful negotiations. Legislative provisions which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining could be taken into account as a particularly appropriate method to resolve the existing difficulties. The Committee also recalls that the right to join the organization of one’s own choosing includes the free determination of the level of representation (at the sector or institution level even in the absence of affiliation to a confederation). An additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employee not engaged in the administration of the State who are excluded from this right and, therefore, from the right to be represented in negotiations (this issue is addressed in a request sent directly to the Government under Convention No. 87).

The Committee once again requests the Government to indicate in its next report the measures taken or contemplated, including the public service reform, with a view to bringing Act No. 4688 and its application in line with the Convention on the following points: (i) the need for the direct employer to participate in genuine negotiations with trade unions representing public servants not engaged in the administration of the State and for a significant role to be left to collective bargaining between the parties; (ii) the need to guarantee clearly within the legislation that negotiations cover not only financial questions but also other conditions of employment; (iii) the need to clearly guarantee that the legislation does not give the authorities, in particular the Council of Ministers, the power to modify or reject collective agreements in the public sector; (iv) the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that currently provided for.

The Committee takes note of the Government’s indication concerning the forthcoming legislative amendment of Act No. 4688 and trusts that all the issues raised above will be taken into account within this framework. The Committee once again requests the Government to transmit the current text amending Act No. 4688 and to indicate in its next report the progress made and a specific timetable for the adoption of the amendments to Act No. 4688.

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

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