Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, by the Confederation of Public Employees’ Trade Unions (KESK) in a communication dated 20 August 2009, by the Confederation of Progressive Trade Unions of Turkey (DISK), in a communication dated 14 May 2009, and by the Turkish Confederation of Public Workers Associations (Türkiye Kamu-Sen) in a communication dated 15 September 2009. The Committee further notes the comments made by the Turkish Confederation of Employers’ Associations (TISK) in a communication dated 2 September 2009. The Committee requests the Government to provide its observations on these comments.

The Committee notes the discussions in the Conference Committee on the Application of Standards in 2009 on the application of the Convention. The Committee notes in particular that the Committee on the Application of Standards requested the Government to accept a high-level bipartite mission with the aim of assisting the Government in making meaningful progress in relation to the long outstanding issues raised by the Committee.

The Committee notes the Government’s indication according to which a group of six persons, under the presidency of the Director-General of Labour, has been established in order to re-examine draft Act No. 2821 on trade unions and draft Act No. 2822 on collective labour agreements, strikes and lockouts.

Civil liberties

The Committee notes the Government’s reply to the comments made by the ITUC in a communication dated 29 August 2008 that referred to: (1) violent detention and arrest by the police force of trade union leaders and union members of the TÜMTIS trade union for legitimate exercise of trade union rights; (2) violent attacks on trade union members of the TÜMTIS trade union by security forces of a private enterprise; (3) violent repression during a teachers demonstration on 26 November 2005, arrest and prison sentences against ten trade union leaders of unions affiliated to KESK; (4) setting on fire of the trade union premises of Egitim-Sen’s branch office on 4 March 2007; (5) public authorities interference on the statutes of public sector confederation KESK and its affiliates; and (6) closing down of the Turkish trade union of retirees (EMEKLI-Sen) on 19 September 2007. Concerning the allegations of violence against trade unionists and prison sentences, the Government indicates that according to article 34 of the Constitution, everyone has the right to organize meetings and demonstrations without permission provided that they are non-violent. Moreover, it refers once more to Law No. 2911 on Meetings and Demonstrations that provides for the right of meetings and demonstrations, responsibilities, circumstances of prohibition and penalties. Besides, Circular No. 2005/14 of the Prime Minister, already referred to by the Government, states that press statements made by union leaders are not subject to disciplinary proceedings and provides for facilities for meetings and demonstrations organized according to Law No. 2911. The Committee observes that the Government provides general indications as to the allegations concerning violence exercised by the police force. In this regard, while appreciating the important step taken by the Government in 2008 to declare May Day a public holiday, the Committee notes that the recent comments from the ITUC, DISK and KESK refer to new cases of recourse to violence by the police force during May Day celebrations in 2009. The Committee recalls that in previous comments it had taken note of similar allegations and it had raised the issue of measures to give the police adequate instructions so as to ensure that police intervention is limited to cases where there is a genuine threat to public order and to avoid the danger of excessive violence in trying to control demonstrations. The Committee wishes to refer to the conclusions of the Conference Committee on the Application of Standards in 2009, when it took note of the Government’s indication that it was determined to take all necessary disciplinary and judicial measures against the members of the security forces who used disproportionate and excessive force, but that it was important that those demonstrating respected the relevant provisions of national legislation. The Committee on the Application of Standards emphasized in this regard, that respect for basic civil liberties was an essential prerequisite to the exercise of freedom of association and urged the Government to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee requests the Government to provide information in this respect. Moreover, the Committee requests once again the Government to respond to the comment formulated by the ITUC in 2007 that trade unions must allow the police to attend their meetings and record the proceedings. The Committee also requests the Government to carry out an investigation on the allegations concerning all the cases of use of violence during police or other security force interventions and to indicate any developments in this respect.

With respect to the allegations concerning the interference by the Government on the statutes of public sector confederations and trade unions, the Government indicates that these confederation and trade unions refer in their statutes to “collective bargaining”, “collective dispute” and “strike”, which are not applicable to public sector trade unions because of a Constitutional restriction; they should instead refer, according to the Government, to “collective negotiations”. The Committee recalls that Article 3 of the Convention provides for the right of workers’ organizations to draw up their constitutions (statutes) and rules. In order for this right to be fully guaranteed, the Committee believes that two basic conditions must be met: firstly, national legislation should only lay down formal requirements as regards trade union constitutions; and secondly, the constitutions and rules should not be subject to prior approval at the discretion of the public authorities (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 109). The Committee further recalls that the prohibition of strikes is only acceptable in the case of public servants exercising authority in the name of the State and essential services in the strict sense of the term and that trade unions representing public servants who are not engaged in the administration of the State should be able to engage in collective bargaining on behalf of their members, as one of the fundamental activities in which trade unions are involved. The Committee recalls that under Article 8 of the Convention, while trade unions are expected to respect the law of the land, this law should not be such as to impair the guarantees provided for in the Convention. The Committee requests the Government to refrain itself from all intervention with respect to the right of trade unions to draw their own statutes, especially when, like in the present case, they provide for trade union rights that are in conformity with the principles enshrined in Conventions Nos 87 and 98 ratified by Turkey. The Committee requests the Government to indicate any developments in this regard.

With respect to the alleged closing down of the EMELKLI-Sen on 19 September 2007, the Government indicates that only employees and employers have the right to establish unions and senior organizations without permission and that there is no provision in Acts Nos 2821 and 2822 concerning the retired persons in these laws, who may, however, organize in the form of an association. The Committee recalls that the legislation should not prevent the trade union organizations and associations from affiliating retirees if they so wish, particularly when they belong to the activity represented by the union.

The Committee further notes that the Government does not provide any information concerning the setting on fire of the premises of Egitim-Sen’s branch office. The Committee recalls that attacks against trade unionists and trade union premises and property constitute serious interference with trade union rights. Criminal activities of this nature create a climate of fear which is extremely prejudicial to the exercise of trade union activities. The Committee requests the Government to carry out an appropriate investigation on these events and to provide information in this respect.

Legislative issues

The Committee recalls that for a number of years it has been commenting upon several provisions of Act No. 2821 on trade unions, Act No. 2822 on collective labour agreements, strikes and lockouts and Act No. 4688 on Public Employees’ Trade Unions. The Committee notes the copies of draft bills amending Acts Nos 2821, 2822 and 4688 submitted by the Government. The Committee had taken note in its previous observation that the Bills amending Acts Nos 2821 and 2822, after having been consulted with the social partners who reached consensus on some issues, were submitted to the Turkish Grand National Assembly on 27 May 2008. In this regard, the Committee on the Applications of Standards took note of the Government’s indication that the Tripartite Consultation Board had conducted intensive work in this regard. The Committee notes, that these Bills contain some improvements in the application of the Convention with respect to the following provisions (some of which the Committee had already taken note of in previous comments):

–           The condition of the Turkish citizenship to be a founding member and for the election of trade union officers (sections 5 and 14 of Act No. 2821) has been removed.

–           The possibility for the governor to appoint an observer at the General Congress of a trade union (section 14(1), of Act No. 2821) has been removed.

–           The condition of the certification of the notary public for the membership registration form and for the notice of resignation (sections 22(2) and 25(2) of Act No. 2821) has been removed.

–           The definition of public servant includes those occupied in a post or in a contractual employee position other than that of a worker in the public establishments and institutions, including public servants under probation (section 3(a) of Act No. 4688).

Furthermore, the Committee notes the Government’s indication in its reply to the Committee on the Application of Standards, that the Constitutional Court found that section 73(3), of Act No. 2822 was in breach of the Constitution and had therefore repealed it.

However, a reading of the draft bills reveals that a number of concerns raised by the Committee remain valid with respect to their conformity with:

Article 2 of the Convention

–           The need to ensure that the self-employed workers, homeworkers and apprentices enjoy the right to organize as section 2 of Act No. 2821 and section 18 of Act No. 3308 (Apprenticeship and Vocational Training) lead to the exclusion either explicitly or in practice of these categories of workers.

–           The exclusion from the right to organize of a number of public employees (such as senior public employees, magistrates, civilian personnel in military institutions and prison guards, section 15 of Act No. 4688). According to the ITUC and KESK, almost 450,000 public employees are deprived of their right to organize due to this provision.

–           The prohibition concerning the establishment of trade unions on an occupational or workplace basis (section 3 of Act No. 2821 and section 4 of Act No. 4688).

–           The criteria under which the Ministry of Labour determines the branch of activity covering a worksite (as unions must be constituted on a branch of activity basis) and the implications of such determinations on the workers’ right to form and join organizations of their own choosing (section 4 of Act No. 2821).

–           The criteria under which the Ministry of Labour determines the branch of activity in the public sector and the implications of such determination on the workers’ right to form and join organizations of their own choosing taking into account that unions have to be constituted on a branch of activity basis (section 5 of Act No. 4688 as well as the Regulation on the Determination of Branch of Activity of Organizations and Agencies). In this respect, the Committee has already taken note of Case No. 2537 based in a complaint from Yapi Yol Sen in which the trade union alleged that due to the closure of an administrative unit (General Directorate of village affairs) which belonged to the branch of “Public works, construction and village services” its personnel was transferred to the local administration and therefore to the branch of “local governments” which meant that Yapi Yol Sen automatically lost its membership and had to face financial difficulties as well as the fact that trade union officers lost their office pursuant to section 16 of Act No. 4688.

Article 3 of the Convention

–           The detailed provisions of Acts Nos 2821, 2822 and 4688 in respect to the internal functioning of unions and their activities that lead to repeated interference by the authorities.

–           The provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37(3)).

–           The removal of union executive bodies in case of non-respect of requirements set out in the law (section 10 of Act No. 4688).

–           The termination of trade union office by reason of the transfer of a trade union leader to another branch of activity, or his/her dismissal or simply the fact that a trade union leader leaves the work (section 16 of Act No. 4688, this issue was also dealt with by the Committee on Freedom of Association in Case No. 2537 concerning Yapi Yol Sen, mentioned above).

Severe limitations to right to strike

–           Prohibition of strikes for political reasons, general strikes and sympathy strikes (section 25 of Act No. 2822 and article 54 of the Constitution). The Government had indicated that this issue was not included in the reform as it required a constitutional revision. In this regard, the Committee calls upon the Government to rapidly put forward and ensure the necessary legal and constitutional reforms for the application of the Convention.

–           Prohibition of strike in many services which cannot be considered to be essential in the strict sense of the term (production of coal for water, electricity, gas and coal power plants, exploration, production and distribution of natural gas and petroleum; petrochemical works, banking and public notaries, land, sea, railway urban public transportation and other public transportation on rail, chemists shops, pharmacies, educational and training institutions) and compulsory arbitration in services where strikes are prohibited (sections 29, 30 and 32 of Act No. 2822). The Committee recalls that in these services, rather than a prohibition, the establishment of a minimum service could satisfy both the workers and the public interest.

–           The possibility for the Council of Ministers to suspend for 60 days a lawful strike for public health and national security reasons and then to refer the matter to compulsory arbitration, if the parties have not been able to reach a settlement upon the expiry of the suspension period (section 33 of Act No. 2822). The draft Bill provides for the advisory opinion of the High Board of Arbitration (a tripartite body), however, the Committee considers that the responsibility for suspending a strike should lie with an independent body which has the confidence of all the parties concerned.

–           Excessively long waiting period before a strike can be called (section 27 – referring to section 23 – and section 35 of Act No. 2822).

–           Minimum services are determined by the regional directorate of the Ministry of Labour and Social Security. The Committee considers, however, that minimum services should be determined with the participation of workers’ and employers’ associations involved and, in case of disagreement, the question should be settled by an independent body and not by the Ministry of Labour and Social Security (section 40 of Act No. 2822).

–           Severe limitations on picketing (section 48 of Act No. 2822); although the draft Bill has eliminated the prohibition for the trade unions to provide shelter to those workers in the picket, other restrictions subsist.

–           Heavy sanctions, including imprisonment for participating in unlawful strikes, the prohibition of certain of which however, is contrary to the principles of freedom of association (sections 70, 71, 72, 73 (except for paragraph 3 repealed by the Constitutional Court), 77 and 79 of Act No. 2822 (although section 79 has been modified in the draft, it still provides for fines to those who write posters or signs in workplaces on strike)). KESK refers to concrete cases of trade unions and union members sanctioned for having participated in a strike.

–           Section 35 of Act No. 4688 that provides for the determination and settlement of disputes by the conciliation board, makes no mention of the circumstances in which strike action may be exercised in the public service. The Committee recalls that restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term.

The Committee requests the Government to indicate the current situation of the Bills amending Acts Nos 2821, 2822 and 4688 and the extent to which consensus has been reached with the social partners in this regard. The Committee expresses the hope that the final texts will take fully into account its comments and that it will be in a position of noting progress.

Associations Act (supervision of organizations’ accounts)

The Committee had already observed that section 35 of Associations Act No. 5253 of 4 November 2004 provides that certain specific sections of this Act apply to trade unions, employers’ organizations, as well as federations and confederations, if there are no specific provisions in special laws concerning these organizations. In this respect, section 19 enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours’ notice. Once again, the Committee recalls that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee requests the Government once again to indicate in its next report the measures taken or contemplated to amend sections 19 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure that verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members.

The Committee regrets to note that the Government has not provided any information with respect to the elaboration of the plan of action with clear time lines (requested by the Committee on the Application of Standards) that would allow the Committee to note significant progress in bringing the law and practice into full conformity with the provisions of the Convention. The Committee requests the Government to accept the high-level bipartite mission suggested by the Conference Committee with the aim of assisting the Government in making meaningful progress on these long outstanding issues. The Committee considers that this kind of mission would be particularly useful taking into consideration the Government’s indication to the Conference Committee that some legislative changes required a constitutional amendment.