Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 313, Marzo 1999

1. 244. In a communication dated 11 August 1998, the Bütün Belediye Memurlari Birli i Sendikasi -- All Municipalities Public Servants' Trade Union (BEM-BIR-SEN) presented a complaint of violations of freedom of association against the Government of Turkey. It submitted new allegations in a communication dated 25 September 1998.
2. 245. The Government furnished its observations in communications dated 23 and 26 November 1998.
3. 246. Turkey has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 247. In its complaint dated 11 August 1998, BEM-BIR-SEN states that it is active in the local government branch of industry and represents the salaried staff having the status of public servants and contract personnel in local government institutions. It contends that the Government hampered its collective bargaining activities and impeded the implementation of already concluded collective agreements thereby violating Convention No. 98.
2. 248. BEM-BIR-SEN then proceeds to explain the background to its complaint. It indicates that it was established on 10 January 1994 and currently has a membership of 32,000. It is also affiliated with the Confederation of Public Servants' Trade Unions (MEMUR-SEN), an umbrella organization established in 1995. It stresses that the Government is obligated through various domestic and international legal instruments -- including ILO Conventions Nos. 87 and 98, the Turkish Constitution and the Public Servants' Act No. 657 -- to allow public servants' unions the right to carry out their activities freely in order to defend the interests of their members. However, the Government has in the past made it very difficult for public servants to organize and bargain collectively and has imposed various restrictions on organizations of public servants, including BEM-BIR-SEN. Moreover, the Government continues to violate its domestic and international obligations as illustrated by the decision of the Conference Committee on the Application of Standards in June 1998 to discuss the case of Turkey for its non-observance of Convention No. 98.
3. 249. Despite these serious obstacles, BEM-BIR-SEN points out that there have been some developments concerning the rights of public servants' unions although these are still very limited. BEM-BIR-SEN itself has been able to organize in several municipalities with whom 26 "Social Balance Agreements" (SBA), have been concluded following collective negotiations. These SBAs which grant economic and social rights to union members are comparable to collective bargaining agreements but are referred to as SBAs in order to overcome obstacles put in the way of public servants' unions by the Government which still does not grant these organizations an explicit right to bargain collectively.
4. 250. BEM-BIR-SEN contends that a concrete example of the Government's attitude is reflected in the Ministry of the Interior's decision to prohibit the implementation of the SBA concluded between the employer (Elazi Municipality) and BEM-BIR-SEN and which entered into force on 15 January 1998 (a copy of this SBA is attached to the complaint). Pursuant to investigations carried out by inspectors from the Ministry of the Interior, the latter concluded that payments made to BEM-BIR-SEN members pursuant to the SBA were in violation of domestic legislation and would have to be paid back. BEM-BIR-SEN asserts that in the inspection report the inspectors state that "it is not possible for a municipality to sign a contract with a trade union to make extra payments which are not specified in the Public Servants' Act No. 657". The inspectors conclude that since the salaries of public servants are regulated by this law, "public servants cannot obtain extra payments and benefits outside their salaries for their duties ..." and that pursuant to the SBA "... some extra wages were paid unlawfully to the staff of the Bus and Water Administration of the Municipality of Elazi" (a copy of the inspection report is attached to the complaint).
5. 251. The report accordingly concludes that the payments made should be given back to the municipality. BEM-BIR-SEN indicates that for the re-collection of these payments, the Ministry of the Interior has forwarded the necessary orders to the employer, and the Elazi governorship has been entrusted with the task of implementing this process. Apart from these actions, a penal investigation has been initiated by the Ministry of the Interior against the Mayor of the Elazi Municipality for having concluded this collective agreement as an employer. BEM-BIR-SEN asserts that all these practices constitute a violation of the right to bargain collectively.
6. 252. In its subsequent communication dated 25 September 1998, BEM-BIR-SEN alleges that the Ministry of the Interior has once again prevented the implementation of an SBA concluded recently between the employer (Suluova Municipality) and BEM-BIR-SEN pursuant to investigations carried out by inspectors from the Ministry (a copy of the relevant SBA as well as the inspection report is attached to the communication by BEM-BIR-SEN).

B. The Government's reply

1. 253. In its initial reply of 23 November 1998, the Government states that following Turkey's ratification of Convention No. 151 concerning the protection of the right to organize and procedures for determining conditions of employment in the public service in 1993, the relevant provisions of the Constitution were amended in 1995 by Act No. 4121 so as to recognize the right to organize and collective bargaining of public servants as a constitutional right. Article 53 of the Constitution, as amended by Act No. 4121, reads as follows:
   • Workers and employers have the right to conclude collective labour agreements in order to regulate reciprocally their economic and social position and conditions of work.
   • The procedure to be followed in concluding collective labour agreements shall be regulated by law.
   • The unions and their higher organizations, which may be established by the public employees mentioned in the first paragraph of article 128 and which do not fall under the scope of the first and second paragraphs of this article and also article 54, may appeal to judicial authorities on behalf of their members and may negotiate collectively with the administration in line with their objectives. If an agreement is reached as a result of collective negotiations, the text of the agreement shall be drawn up and signed by the parties. Such text shall be presented to the Council of Ministers so that administrative and legislative arrangements can be made. If such a text cannot be concluded by collective negotiations, the agreed and disagreed points shall also be submitted for the consideration of the Council of Ministers by the relevant parties. The regulations for the execution of this article shall be stipulated by law.
   • More than one collective labour agreement at the same workplace for the same period shall not be concluded and put into effect.
2. 254. The Government explains that in line with the aforementioned constitutional amendment of 1995, the Public Servants' Act No. 657 was also amended in 1997 so as to allow public servants to form and join their unions and higher level organizations in accordance with the principles set forth in the Constitution and pertinent legislation. As the final phase of the endeavours to bring the legislation into conformity with the provisions of the relevant international labour standards, the Government submitted a draft bill concerning public servants' unions to the Grand National Assembly for its enactment. The draft bill has been debated extensively in the Assembly and half of its proposed articles have been approved. However, due to the demands of the opposition parties and some public servants' unions, legislative process is pending for the re-evaluation and revision of some of the remaining articles, hence leaving the public servants' unions without a legal framework in which to conduct negotiations and to conclude agreements with the administration. Nevertheless, to facilitate the functioning of the public servants' unions, the Office of the Prime Minister issued a circular dated 20 November 1997, information on which was given in Turkey's previous report on Convention No. 98 under article 22 of the ILO Constitution.
3. 255. The Government points out that public servants in Turkey organized themselves into unions and confederations even before the constitutional amendment of 1995 as was the case with the establishment of BEM-BIR-SEN (All Municipalities Public Servants' Union trade union affiliated to the Confederation of MEMUR-SEN, which is one of the three confederations of public servants' unions). Given the aforementioned legislative and administrative arrangements and efforts shown to that end, the allegations made against the Government questioning its good faith are misguided.
4. 256. The Government concludes that since negotiations and agreements between the public servants' unions and the administration (including local administrations) involve budgetary, legal and administrative arrangements to be made, procedures for the functioning of such unions and regulations governing their relations with the administration should first be legislated. Although such a legal framework is lacking, the Government does not interfere with the collective agreements reached as was indicated by the existence of 26 agreements between BEM-BIR-SEN and municipalities so long as they do not entail payments not stipulated in annual budgets or in the framework legislation such as the Public Servants' Act No. 657/1965. However, in this case, the collective agreement contains provisions of payments which have no legal basis and no budgetary allocation.
5. 257. In its second communication dated 26 November 1998, the Government refers to the allegation that the Ministry of the Interior prevented the implementation of the Social Balance Agreement (SBA) concluded between the Municipality of Suluova and BEM-BIR-SEN through investigations of the said Ministry's inspectors. The Government contends that BEM-BIR-SEN encloses the original inspection report together with its incorrect and misleading translation. According to the Government, the 59th paragraph of the inspection report recalls that section 146 of the Public Servants' Act No. 657 contains the following provision: "Public servants cannot be remunerated for the duties given by law, statutes, regulations and their superiors save the rights as provided by this Act. No advantage can be granted". The report states that, under the provision of this section, the payments listed there above have no legal basis; it adds that, aware of this, the accountant's office secured at the time of payments written contracts with all the officials who received such payments to the effect that if the payments were considered as personal debts, they would be paid back.
6. 258. In fact, the inspection report does not make any statement on, or question the validity of, the SBA concluded between the Municipality of Suluova and BEM-BIR-SEN. Contrary to its translation as provided by BEM-BIR-SEN, the original text of the 59th paragraph of the report, also provided by the said organization, does not contain the following sentences or any similar statement: "According to the State Public Servants' Law No. 657, the social and economic payments of the municipalities to their officers are also mentioned and some explanation of their regulation is given. It is not possible for a municipality to sign a contract with a trade union and to make some extra payments". In addition, it does not order the prevention of the SBA's implementation.

C. The Committee's conclusions

1. 259. The Committee notes that the allegations in this case concern restrictions on the right of organizations of public servants to bargain collectively through government intervention resulting in the non-implementation of previously concluded collective agreements or "Social Balance Agreements" (SBAs).
2. 260. Although the complainant (BEM-BIR-SEN) has concluded SBAs with 26 different municipalities, it alleges that the Government has impeded the implementation of two of these SBAs despite the conclusion of these agreements between BEM-BIR-SEN on the one hand and the Municipalities of Elazi and Suluova on the other hand. The Government, for its part, contends that although a legal framework -- within which public servants' unions can conduct negotiations and conclude agreements with the administration -- is lacking, it does not interfere with already concluded collective agreements so long as they do not entail payments not stipulated in the Public Servants' Act No. 657/1965 or in annual budgets.
3. 261. The Government points out, however, that with regard to the two cases at hand, the SBAs concerned contain provisions of payments which have no legal basis and no budgetary allocation. The Committee notes therefore the implicit acknowledgement in the Government's reply that the extra wages paid to the staff of the Bus and Water Administration of the Municipality of Elazi as well as to the staff of the Bus Administration of Suluova Municipality have to be paid back to the municipalities concerned, as alleged by BEM-BIR-SEN and as attested to by the respective inspection reports. Moreover, although the Government contests the translation of the contents of the inspection report on the SBA concluded between the Municipality of Suluova and BEM-BIR-SEN, the Committee notes that this is somewhat in contradiction with the Government's non-refutal of the translation of the first inspection report on the SBA concluded between Elazi Municipality and BEM-BIR-SEN, which has the same contents as the second one.
4. 262. The Committee is therefore led to understand that one of the reasons why the Government, through the intermediary of inspectors from the Ministry of the Interior, would not allow the two above-mentioned SBAs to be implemented is that the extra wages stipulated therein for the staff of the two municipalities concerned are not provided for by law, namely the Public Servants' Act No. 657.
5. 263. In this respect, the Committee is bound to remind the Government that public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 793). In view of the fact that the staff of the Elazi and Suluova Municipalities -- in this case staff of the Bus and Water Administration -- cannot be considered as public servants engaged in the administration of the State, legislation should not constitute an obstacle to the collective bargaining rights of the above-mentioned public servants. In these circumstances, the Committee considers that in preventing the implementation of the SBAs freely entered into by BEM-BIR-SEN and the Elazi and Suluova Municipalities, respectively, the Government violated the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98.
6. 264. The Government further states that it has submitted a draft bill concerning public servants' unions to the Grand National Assembly. Half of this draft bill's proposed articles have been approved and when enacted it would provide a legal framework in which public servants' unions may conduct negotiations and conclude agreements. The Government nevertheless indicates that the legislative process is pending due to conflicting demands of the opposition parties and some public servants' unions. In this respect, the Committee also notes the information given by the Government in its reports on Conventions Nos. 98 and 151 under article 22 of the ILO Constitution that although the draft bill concerning public servants' unions was initially submitted to Parliament on 14 March 1994, there has been considerable delay with regard to the adoption of this bill due to the various changes in government that have taken place since 1994. In the light of the above factors, the Committee considers that the possibility cannot be ruled out that the bill concerning the trade union and collective bargaining rights of public servants may not be enacted for a considerable period of time. In the interim, public servants' unions cannot be expected to wait till the enactment of this bill to exercise their right to bargain freely their terms and conditions of employment in the public service, a right which is guaranteed for public service workers who are not engaged in the administration of the State by Article 4 of Convention No. 98, ratified by Turkey in 1952. While the Government also maintains that there was no budgetary allocation to make the extra payments to the public servants concerned, the Committee is of the view that it is the employer's responsibility -- in this instance, the Elazi and Suluova Municipalities -- to make that determination. Since both these employers decided, in their respective SBAs, to grant extra payments to their employees, the Committee considers that the decision by the Government to alter the contents of those SBAs which were freely entered into, and already negotiated by the parties was in violation of the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners.
7. 265. For all the above-mentioned reasons, the Committee regrets that the Government did not give priority to collective bargaining as a means of determining the employment conditions of the public servants employed in the Elazi and Suluova Municipalities; it would request the Government to refrain from having recourse to measures of intervention in the collective bargaining process and its outcome in the future for these categories of workers.
8. 266. Accordingly, the Committee requests the Government to ensure that the employees are not obliged to return the extra payments that were provided for in the SBAs concluded between BEM-BIR-SEN and the Elazi and Suluova Municipalities. It requests the Government to keep it informed of developments in this regard.
9. 267. Finally, noting that a penal investigation has been initiated by the Ministry of the Interior against the Mayor of the Municipality of Elazi for having concluded the collective agreement as an employer, the Committee would insist that the Mayor not be penalized for having exercised collective bargaining rights under Convention No. 98. It therefore requests the Government to stop forthwith the penal investigation initiated by the Ministry of Interior.
10. 268. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.