Observación (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Türkiye (Ratificación : 1952)

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The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK) and of the Turkish Confederation of Employer Associations (TİSK) communicated with the Government’s report. The Committee will examine their contents once translation thereof becomes available.

Previous observations of the social partners. The Committee had previously requested the Government to provide its comments on the observations of the Confederation of Turkish Trade Unions (TÜRK-İŞ) alleging the partiality in the practice of the Supreme Arbitration Board and inadequate protection of union members against anti-union discrimination pending the authorization of an organization as collective bargaining agent. The Committee notes the information provided by the Government regarding the composition of the Board and the indication that TÜRK-İŞ, the organization which represents the majority of workers covered by the Act on Trade Unions and Collective Bargaining (Act No. 6356), is represented by two members. The Government informs that in its decision making, the Board takes into consideration the country’s economic situation, subsistence indices, actual wages, wages paid in comparable workplaces, other working conditions and income components in accordance with the provisions of article 54 of the Constitution, relevant provisions of Act No. 6356 and of the relevant Regulations. The Government also states that the Board establishes balanced collective agreements taking into account the position of workers and employers, as well as its own precedents. As to the alleged inadequate protection of union members against anti-union discrimination, the Government refers to the legislation in force and in particular to sections 23–25 of Act No. 6356, establishing such protection, and sections 118 and 135 of the Penal Code, providing for penalties for obstructing trade union activities by using force, threats or other unlawful acts, and for recording personal data unlawfully, including information on trade union affiliation. The Committee notes the information on the legislative protection against acts of anti-union discrimination and refers to its comments below as concerns the effectiveness of this protection in practice.

Scope of the Convention. In its previous comment, the Committee had noted that while the prison staff, like all other public servants were covered by the collective agreements concluded in the public service, this category of workers did not enjoy the right to organize (section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688)). The Committee had requested the Government to take the necessary measures, including legislative review, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee notes the Government’s indication that when adopting Act No. 4688, the Parliament did not consider it appropriate to grant the right to establish trade unions to those working in the penitentiaries so as to ensure that in the exercise of their duties such workers remain impartial and do not discriminate on the grounds of their philosophical belief, religion, language, race, group, party or trade union affiliation. The Government reiterates that the fact that a public servant does not have the right to form a trade union does not mean that he or she cannot benefit from a collective agreement and that all public servants in Turkey benefit from the provisions of the relevant collective agreement regardless of whether or not they are union members. Recalling that all public servants not engaged in the administration of the State must enjoy the rights afforded by the Convention, the Committee once again requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them.

Articles 1 and 3 of the Convention. Adequate protection against anti union discrimination. Following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference (hereafter, the Conference Committee), the Committee has been requesting the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors. Noting the Government’s indication that preparations for the establishment of the data collecting system were underway within the framework of the “Improving Social Dialogue in Working Life” project, the Committee had requested the Government to provide information on the progress made in the establishment of such system. The Committee notes with regret the Government’s indication that while a report entitled “Methods for Establishing Data Collection System on Trade Union Discrimination in Private and Public Sectors and a Model Proposal for Turkey” was prepared and a workshop was organized on 3 October 2018 at the ILO Ankara Office with the participation of the social partners and representatives of the institutions expected to contribute to this issue, no concrete model for collecting anti-union discrimination data was found. The Committee is therefore bound to reiterate the June 2013 request of the Conference Committee and expects the Government to provide in its next report information on the measures taken or envisaged in this respect.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. In its previous comment, the Committee took note of the information on the high number of suspensions and dismissals of trade union members and officials under the state of emergency. It noted in this respect the allegation that the state of emergency was used by the political power to target and punish certain trade unions and to exert pressure on oppositional trade unions through dismissals of their members. Firmly hoping that the Inquiry Commission (established to review such dismissals) has the necessary means to examine the relevant facts, the Committee had requested the Government to provide information on the functioning of the Commission and to indicate the number of applications received from trade union members and officials, and the outcome of their examination. The Committee had also requested the Government to provide information on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials. The Committee notes the Government’s indication that as of 29 August 2019, there were 126,200 applications submitted to the Inquiry Commission. Since 22 December 2017, the Commission delivered its decisions in respect of 84,300 applications, out of which, 6,700 were accepted and 77,600 were rejected; 41,900 applications are still pending. The Government indicates that the Commission delivers individualized and reasoned decisions following a speedy and extensive examination. The Government further indicates that although KESK alleged that it was targeted or discriminated against, out of the 125,678 dismissals, KESK itself claims around 4,000 dismissals of its members, and out of 588 decisions of the Inquiry Commission regarding KESK members, 199 applications were accepted for reinstatement. The Government points out that the rate of positive decisions in relation to KESK members is one in three, which is above the average rate. With reference to its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee notes that according to the International Trade Union Confederation, more than 11,000 KESK representatives and members were suspended from their jobs or dismissed because of their trade union activities. The Committee requests the Government to provide its comments thereon.

While noting the general statistics provided by the Government, the Committee regrets the absence of specific information, with the exception regarding KESK members, on the number of trade union members and officials involved. Regarding KESK, the Committee expresses its concern that according to the Government, only about 15 per cent of cases involving its members have been examined and observes that among those only one third were accepted for reinstatement. It recalls from the previous examination that in case of a negative decision, the applicants can have recourse to the competent administrative courts in Ankara. The Committee regrets the absence of information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials. The Committee reiterates its firm hope that the Inquiry Commission and the administrative courts that review its decisions will carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds. The Committee once again requests the Government to provide specific information on the number of applications received from trade union members and officials, the outcome of their examination by the Inquiry Commission and on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials.

Article 1. Anti-union discrimination in the course of employment. The Committee recalls the observations of KESK and the Education and Science Workers Union of Turkey (EĞİTİM SEN), alleging that hundreds of their members and affiliates, mostly in the education sector, were transferred against their will from their workplaces in 2016 (at least 122 transfers, mainly for participation in trade union activities and events) and in 2017 (1,267 transfers, 1,190 of whom from the education sector). It further recalls the observations of KESK alleging that the so-called social equilibrium compensation agreements concluded pursuant to section 32 of Act No. 4688 contain provisions that discriminate against members of minority unions as they impose higher fees on them and make the distribution of benefits dependent on the clear disciplinary record of the employee. KESK referred in this regard to agreements concluded in Gaziantep and Kocaeli, where Bem-Bir-Sen, an affiliate organization of the allegedly pro-government MEMUR SEN confederation represented the majority, and TÜM BEL SEN, a KESK affiliate, was the minority union. KESK indicated that a number of affected employees had challenged the discriminatory provisions in court. The Committee had requested the Government to take the necessary measures to prevent the occurrence of anti-union transfers and demotions in the future, and to ensure that if any anti-union discriminatory measures remained in force, they were revoked immediately. It had also requested the Government to reply to the KESK allegation with regard to the inclusion of discriminatory clauses in certain social equilibrium compensation agreements. The Committee notes the Government’s indication that as a result of court rulings on the issue, social equilibrium membership contributions are now collected equally from all employees without any regard to their trade union affiliation and social equilibrium compensation payments are made equally in the same manner. Furthermore, the employees with a disciplinary record in the above-mentioned municipalities benefit equally from the social equilibrium compensation payments. With regard to the alleged anti-union discrimination, the Government emphasises that section 18 of Act No. 4688 provides for sufficient protection and guarantees for public servants who are trade union executives or members. Pursuant to this section, public employers cannot take discriminatory measures against public servants on the grounds of their trade union membership. Public servants cannot be dismissed or treated differently due to their participation in the legitimate activities of trade unions or confederations. Moreover, public employers cannot change the workplace of trade union executives (i.e., shop stewards, union’s workplace representatives, union’s provincial and district representatives, officials of unions and their branches) without providing clear and precise reasons therefor. While taking note of the information provided on the legislative protection against anti-union acts, the Committee once again requests the Government to take the necessary measures to prevent measures of transfer or demotions of a discriminatory nature and on anti-union grounds and to ensure that measures of this nature that are still in force are immediately repealed.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. It noted in this respect that pursuant to section 34 of Act No. 6356, collective work agreement may cover one or more than one workplace in the same branch of activity, thereby making cross-sector bargaining in the private sector impossible. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 in a manner so as to ensure that it does not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes the Government’s indication that: Act No. 6356 entered into force in 2012 following negotiations with the social partners; section 34 of the Act was drafted taking into account their views; there have been no problems regarding its implementation; and no request for its amendment have been submitted by the social partners. Recalling that in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels, the Committee once again requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 so as to ensure that the parties in the private sector wishing to engage in cross sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 initially set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. It further recalls that the 3 per cent threshold was decreased to 1 per cent by Act No. 6552 of 10 September 2014 and that additionally, section 1 of Act No. 6356 stipulating that the 1 per cent membership threshold should be applied as 3 per cent with regard to trade unions that are not members of confederations participating in the Economic and Social Council was repealed by the Constitutional Court. Therefore, the 3 per cent branch threshold was reduced to 1 per cent with regard to all trade unions. Furthermore, the Committee recalls that until 6 September 2018, legal exemptions from the branch threshold requirement were granted to three categories of previously authorized trade unions, so as to prevent the loss of their authorization for collective bargaining purposes. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold and noting that the exemption granted to the previously authorized unions was provisional, the Committee had requested the Government to indicate whether the exemption had been extended beyond 6 September 2018, and the impact of the decision made in this regard on the capacity of previously authorized organizations to bargain collectively. It had further requested the Government to continue reviewing the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners, and should it be confirmed that the perpetuation of the 1 per cent threshold had a negative impact on the coverage of the national collective bargaining machinery, revise the law with a view to its removal.

The Committee recalls that the Committee on Freedom of Association has referred to it the legislative aspects of Case No. 3021 (see 391st Report, October–November 2019, paragraph 70) concerning the impact of application of Act No. 6356 on the trade union movement and the national collective bargaining machinery as a whole. The Committee notes the Government’s indication that the exemption granted to trade unions under second paragraph of the provisional section 6 of Act No. 6356 ended on 6 September 2018. Pursuant to the requirement of Act No. 6356, the trade unions whose exemption is ended shall receive a certificate of authorization to conclude collective labour agreement if the number of their members exceeds 1 per cent of the total number of workers employed in the branch of activity to which the workplace or the enterprise belongs and represents more than 50 per cent of the employees in the workplace or more than 40 per cent of the employees in the enterprise. The Government points out that Act No. 6356 was drafted in consultation with the social partners and taking into consideration the universal principles regarding trade union rights and freedoms. Following the entry into force of the arrangements outlined in the Act, the Government proceeded to obtain the views and evaluations of the social partners. While some of the social partners asked for the continuation of the branch level threshold, others were of the view that it needs to be reduced or abolished. Currently, there is no agreement on this issue. The Government indicates, however, that should a consensus be achieved on this matter, steps will be taken to make the necessary arrangements. Noting that that the provisional exemption has not been extended beyond September 2018, the Committee requests the Government to provide information on the impact of the non-extension on the capacity of previously authorized organizations to bargain collectively and to indicate the status of the collective agreements concluded by them. It also requests the Government to continue monitoring the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

With regard to the workplace and enterprise representativeness thresholds, in its previous comments, the Committee had noted section 42(3) of Act No. 6356, which provides that if it is determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence. It had further noted section 45(1), which stipulates that an agreement concluded without an authorization document is null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee had requested the Government to take the necessary measures to amend the legislation, in consultation with the social partners, and to provide information in this respect. The Committee notes the Government’s indication that the issue of the amendment of the collective bargaining system was discussed with the social partners within the framework of the project of “Improving Social Dialogue in Working Life” but no model could be agreed upon by everyone. The Government declares its readiness to consider the proposal for the amendment to the legislation if put forward by the social partners and if such a proposal represents a consensus. Recalling that it is the responsibility of the Government to ensure the application of the Convention it had ratified, the Committee once again requests the Government to amend the legislation so as to ensure that if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. It requests the Government to provide information on all measures taken or envisaged in this regard.

In its previous comment, the Committee had also requested the Government to provide information on any use of sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) of Act No. 6356 that provide for a variety of situations in which the certificate of competence to bargain may be withdrawn by the authorities for a variety of reasons (the failure to call on the other party to start negotiations within 15 days of receiving the certificate of competence; the failure to attend the first collective bargaining meeting or failure to begin collective bargaining within 30 days from the date of the call; failure to notify a dispute to the relevant authority within six working days; failure to apply to the High Arbitration Board; failure to take a strike decision or to begin a strike in accordance with the legislative requirements; and failure to reach an agreement at the end of the term of strike postponement) and to continue to review their application with the social partners concerned with a view to their eventual amendment, favouring collective bargaining where the parties so desire. The Committee notes the Government’s indication that while no issues have been raised regarding the implementation in practice of the above-mentioned provisions it would consider their amendment if such a proposal is put forward by the social partners.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had previously noted that section 28 of Act No. 4688, as amended in 2012, restricts the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government reiterates its previous indication that the demands of the unions and their confederations that do not fall within the category of financial and social rights are received and considered at the other, more appropriate platforms established beside collective bargaining. The Committee is therefore bound to once again recall that public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee wishes to further recall however, that the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, as long as the authorities respect the agreement adopted. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the Collective Agreements concluded in the public service. In this respect, the proposals for the general section of the Collective Agreement were prepared by the confederation members of PSUD and the proposals for collective agreements in each service branch were made by the relevant branch trade union representative member of PSUD. The Committee had also noted the observation of the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN), indicating that many of the proposals of authorized unions in the branch were accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprived the branch unions from the capacity to directly exercise their right to make proposals. Noting that although the most representative unions in the branch were represented in PSUD and took part in bargaining within branch-specific technical committees, their role within PSUD was restricted in that they were not entitled to make proposals for collective agreements, in particular where their demands were qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. The Committee notes the Government’s indication that collective bargaining is held every two years in order to discuss the issues that concern service branches and general issues together. On that occasion, collective bargaining offers for all service branches are determined separately by the authorized trade unions having the highest number of members in that service branch. Naturally, the proposals of the trade unions are determined exclusively for the service branches due to the differences in the service branches and the public servants within the scope of those branches and discussed in the special committees established separately for the service branches by the Heads of PED and PSUD. Considering that where joint bodies within which collective agreements must be concluded are set up, and the conditions imposed by law for participation in these bodies are such as to prevent a trade union which would be the most representative of its branch of activity from being associated in the work of the said bodies, the principles of the Convention are impaired, the Committee again requests the Government to ensure that Act No. 4688 and its application enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State.

Collective bargaining in the public sector. Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employees’ Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had noted that seven of the 11 members of the Board including the chair were designated by the President of the Republic and considered that this selection process could create doubts as to the independence and impartiality of the Board. The Committee had therefore requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Committee notes that the Government confirms that in addition to the Head of the Board, its five other members with knowledge in public administration, public finances and public personnel regime, as well as one member among the academics proposed by the competent confederations, are appointed by the President. The Committee requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

[The Government is asked to reply in full to the present comments in 2020.]