Informe definitivo - Informe núm. 138, 1973

1. 15. The complaint of the Confederation of Progressive Trade Unions of Turkey (DISK) is contained in a telegram dated 15 June 1970 addressed direct to the ILO. The complaint was transmitted to the Government, which submitted certain preliminary observations thereon in a communication dated 9 January 1971.
2. 16. At its 57th Session (February 1971) the Committee, in adjourning its examination of the case, asked the Director-General to request the Government and the complainants to supply certain information concerning the complaint, and in a communication dated 11 May 1971, the Government transmitted this information.
3. 17. At its 58th Session (May 1971) the Committee again adjourned its examination of the case since the information supplied by the Government was received too late to permit its examination in substance, and since the information requested from the complainants had not been received. In a communication dated 15 July 1971 the complainants supplied detailed information in support of their complaint. This information was transmitted to the Government, which supplied certain observations in a communication dated 31 October 1972. Two additional communications containing information concerning the complaint, dated 18 March 1972 and 30 November 1972 respectively, were also transmitted by the complainants to the ILO.
4. 18. Turkey has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 19. The complainants alleged that Act No. 1317, dated 29 August 1970, which amended Act No. 274 of 1969 was not in conformity with the freedom of association Conventions and constituted a threat to the existence of their organisation. The complainants stated that a case had been filed with the Turkish Constitutional Court by the People's Republican Party and the Labour and other Parties in which the cancellation of the amendments introduced by Act No. 1317 was requested on the grounds that they were unconstitutional.
2. 20. The complainants stated that the amendments to section 1, section 13 (paragraphs 3, 4 and 6) and section 32 of Act No. 274 were of such a nature as to prevent the establishment of Regional Trade Union Councils. According to the complainants, the reason for these amendments was to prevent the establishment of new federations and confederations in order to achieve a monopoly, and in particular the establishment of "birliks", or regional councils of unions in the same or in different industries.
3. 21. As a result of the amendment to section 5 (paragraph 1) of Act No. 274, continued the complainants, membership of a union became dependent upon the acceptance of the authorised organ of the union. If, therefore, a worker was unpopular, or regarded as a rival by the unions executive committee, he might not be accepted as a member.
4. 22. According to the complainants, the amendment to section 9 (paragraph 2) of Act No. 274 made practically impossible the establishment of new national unions, federations and confederations. This amended provision, stated the complainants, provided that, for a union or federation to function throughout the land, it had to represent at least one-third of the insured workers in a particular branch of the industry, and, in the case of confederations, they had to be established by at least one-third of the unions and federations as above; and must have as members at least one-third of the organised workers in Turkey. Existing organisations which did not fulfil these requirements would have to be dissolved or to be split into small local unions.
5. 23. The complainants also stated that, by virtue of the amendment to section 11 (paragraph 1) of Act No. 274, a worker who wished to establish a trade union must have been employed for at least three years in the particular branch of industry where the union was to be formed. Again, the amendment to paragraph 3 of section 11 stated that the right to establish international workers' organisations was to be given to the confederation which represented the majority of the workers in Turkey, or to the unions affiliated to such a confederation. These amendments, the complainants stated, were discriminatory and contrary to the Conventions.
6. 24. By virtue of the amendment to section 22 (paragraph 2), stated the complainants, it was now compulsory for workers to pay dues to the union declared as the bargaining agent, even if the workers were not members of that union. The same workers' dues could not be checked off to the unions of which they were members.
7. 25. The complainants added that the amendments to sections 5, 6, 11, 21 and 23 of Act No. 274 greatly curtailed the right of workers to establish and join unions and federations of their own choosing, and that it became compulsory for workers to join the organisation favoured by the ruling political party.
8. 26. In its communication dated 18 March 1972, the complainants indicated that the Constitutional Court of Turkey had decided to cancel, either totally or partially, sections 1, 5, 6, 9, 11, 13, 14, 15, 23, 29 and 32 of Act No. 274, as modified by Act No. 1317, but that the decision would become final only when the Court gave its reasons therefor. In its communication dated 31 October 1972, the Government stated that the Constitutional Court of Turkey had just adopted a decision, published in the Official Journal of 19 October 1972, cancelling certain provisions of Act No. 1317, including sections 5, 9 and 11 of Act No. 1317 mentioned in the complaint. The Government added that sections 6, 13 and 32 of this Act were, however, considered by the Court not to be in contradiction with the Constitution, and were not cancelled.

B. B. The Committee's conclusions

1. 27. Having taken note of the explanations supplied by the Government and the information supplied by the complainants, the Committee considers that since sections 5, 9 and 11 of Act No. 1317 have been cancelled by the Turkish Constitutional Court, no useful purpose would be served by pursuing its examination of the complaint in so far as it contains allegations concerning these provisions. It remains for the Committee to examine the extent to which the remaining provisions of Law No. 1317, concerning which allegations have been made (namely sections 1, 6, 13, 23 and 32 of Act No. 1317) are in accordance with the principles of freedom of association.
2. 28. The Committee notes from the amendments introduced by Act No. 1317 to sections 1, 13 and 32 of Act No. 274 (concerning the definition of an organisation of workers or employers, quorum, affiliation, resignation or withdrawal and the application of other enactments) that the term "unions" ("birliks") has been deleted from the provisions. According to the complainants the reason for this amendment was to prevent the establishment of new federations and confederations, and in particular, the establishment of "birliks" or regional councils of unions in the same or different industries, such as, for example, the "Aegean Region Trade Unions Council" or the "Regional Council of Marmara Textile Workers". The reasons given by the Constitutional Court for rejecting the argument that this omission was unconstitutional were that associations of trade unions in fact take the form of federations or confederations, and that there was accordingly no need at present to define another type of association. In addition, the Constitutional Court pointed out that no restriction prevented the creation of other kinds of associations. When required by economic and social conditions, the legislative body would adopt the relevant provisions in this connection.
3. 29. The Committee also notes in this connection that the amendment to section 9 of Act No. 274 was declared by the Constitutional Court to be unconstitutional, and that, accordingly, section 9 of this law seems to remain in force. Whereas, however, the expression "unions" (or "birliks") has been removed from certain other provisions of this Act, section 9 (paragraph 2) provides that local or regional associations of trade unions shall be constituted by the uniting, as members, of not fewer than two trade unions existing in the same place or within certain fixed regional limits, even if they fall within branches of activity which are unconnected. On the other hand, paragraph 2(b) of the same section provides that federations shall be constituted by the association of not fewer than two trade unions existing in the same branch of industry or in branches of activity connected with the branch of industry concerned.
4. 30. It would accordingly appear from the provisions of section 9 of Act No. 274, and from the decision of the Constitutional Court, that no restriction is placed on the establishment of a regional association of unions, although such organisation would no longer be covered by the provisions contained in sections 13 and 32 of the Act concerning the establishment and general functioning of organisations. The complainants had alleged that the omission of the expression "unions" (or "birliks") from sections 1, 13 and 32 was deliberately intended to remove the possibility of establishing regional associations of unions and in this connection the Committee would point out that any restriction, either direct or indirect, on the right of unions to establish and join associations of unions belonging to the same or different trades on a regional basis would not be in conformity with the principles of freedom of association.
5. 31. The complainants had also stated that section 6 of Act No. 274, as amended by Act No. 1317, was not in conformity with the right of workers to join organisations of their own choosing. The Committee notes that as a result of the amendment of this section any member of a trade union wishing to withdraw from membership of his union may do so only in the presence of a notary who must verify the identity of the person concerned and attest his signature. The date of withdrawal of the member shall be recorded in the register of members of the union. According to the Government, the Constitutional Court was of the view that this amendment was not unconstitutional. The requirement laid down in the amended section was procedural and was designed to make certain that a worker had in fact tendered his resignation, thereby ensuring the proper enjoyment of his rights as a trade union member. The Court pointed out that the amendment in no way prevented workers from using their right to withdraw from membership of a union.
6. 32. In this connection, the Committee considers that a requirement such as that laid down in section 6 of Act No. 274, as amended, would not in itself constitute an infringement of trade union rights provided that this is a formality which, in practice, can be carried out easily and without delay. However, if such a requirement could, in certain circumstances, present practical difficulties for workers wishing to withdraw from a union, it might restrict the free exercise of their right to join organisations of their own choosing. In order to avoid such a situation the Committee considers that the Government should examine the possibility of introducing an alternative method of resigning from a union which would involve no practical or financial difficulties for the workers concerned. In accordance with the rule of procedure established by the Committee at its 59th Session in November 1971 (127th Report, paragraph 251), the Committee recommends the Governing Body to invite the Government to indicate prior to the Committee's November 1973 session, the steps which have been taken, or which it is proposed to take, to introduce an alternative system for withdrawing from membership of a trade union.
7. 33. The Committee notes the allegation made by the complainants that following the amendment to section 22 (paragraph 2) of Act No. 274, it is now compulsory for a worker to pay dues to the union declared as the bargaining agent, even if the worker is not a member of that union and otherwise cannot benefit from the collective agreement. The same worker's dues cannot be checked off to the union of which he is a member.
8. 34. With regard to section 22 of Act No. 274 the Committee notes from the information at its disposal that no amendment was introduced by Act No. 1317, and that section 23 concerning contributions appears to have been amended in form only. The last-mentioned section provides, inter alia, for the collection, by means of a check-off system, of a solidarity contribution which, in terms of section 7(3) of Act No. 275 concerning collective labour agreements, must be paid by workers who are not members of the organisation which is a party to a collective agreement, but who wish to avail themselves of the agreement. This solidarity contribution is fixed at not more than two-thirds of the trade union contributions paid by workers of the same class and skill in the same establishment who belong to the organisation that is a party to the agreement. The Committee considers that such a system in the present case, while not covered by international labour standards, would not in itself seem to be incompatible with the principles of freedom of association. The Committee, accordingly, recommends the Governing Body to decide that this aspect of the case does not call for further examination.