Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 327, Marzo 2002

1. 805. In a communication dated 17 April 2001, the International Metalworkers’ Federation (IMF) and Dok Gemi-Is submitted a complaint of violations of freedom of association and of collective bargaining rights against the Government of Turkey.
2. 806. The Government sent its observations in a communication dated 26 October 2001.
3. 807. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 808. In a communication dated 17 April 2001, the International Metalworkers’ Federation (IMF) and Dok Gemi-Is jointly submitted a complaint for the denial of fundamental trade union rights in Turkey. The complainants state that the earthquake which devastated much of northern Turkey in August 1999 caused considerable damage to the main naval shipyard at Golcuk. As a result, the work previously undertaken at the Golcuk shipyard, to maintain and service naval vessels, was partially transferred to the Pendik shipyard and the rest was transferred to the Alaybey shipyard, which previously operated in the commercial sector. Thus part of the workforce from the Golcuk shipyard, many of whom were members of the Harb-Is union (which under current Turkish law had sole representation rights in the naval shipyards), was subsequently transferred to the Pendik shipyard.
2. 809. The management of the Pendik and Alaybey shipyards, pressed by the Ministry of National Defence, disputed the right of Dok Gemi-Is (the trade union with almost 100 per cent membership amongst the workforce in the commercial operations at the Alaybey shipyard and over two-thirds of the workforce at the Pendik shipyard), to continue to represent their members in these two shipyards. Meanwhile, the management of these two shipyards and officials of the Harb-Is union, pressed Dok Gemi-Is members to transfer their membership to Harb-Is.
3. 810. Dok Gemi-Is appealed to the Minister of Labour in November 1999 to uphold its right to represent its members in the Pendik and Alaybey shipyards. Initially the Minister agreed that Dok Gemi-Is should continue to represent the interests of its members at these two shipyards, at least until the current collective agreement expired on 31 December 2000. However, the complainant alleges that the management of the two shipyards and the Minister for National Defence refused to accept this decision and, in collusion with Harb-Is, continued to pressure the members of Dok Gemi-Is to resign from their union and join Harb-Is. Furthermore, they jointly pressed the Government to pass a special decree in order to transfer the two shipyards into the Ministry of National Defence sector which, under Turkish law, would preclude Dok Gemi-Is from representing the workers at these two shipyards.
4. 811. The complainants further allege that Dok Gemi-Is was subsequently threatened by the Privatization High Committee established by the Prime Minister that the Haliç and Camialti shipyards could also be transferred to the Ministry of National Defence sector. It has been suggested that this was in retaliation to Dok Gemi-Is’ opposition to the attempt to wrest control over the Pendik and Alaybey shipyards.
5. 812. The Turkish Government subsequently passed a Special Decree in October 1999, transferring the Pendik and Alaybey shipyards to the Ministry of National Defence sector. Furthermore, the management of the two shipyards and the naval authorities continued to refuse to recognize either the full-time or local Dok Gemi-Is officials, despite the fact that they continued to be the democratically elected and legally appointed spokespersons for the workers in these two shipyards.
6. 813. Faced with the challenge to its right to represent its members, Dok Gemi-Is submitted an appeal to the First Ankara Labour Court in November 1999, claiming that:
   • (a) the labour contract concluded between the parties continued to be valid until its expiry date December 2000;
   • (b) there had been no change in the type of activities operated in the shipyards after the takeover and the sector should still be considered to be in the shipbuilding sector, as listed by the Ministry of Labour.
7. 814. At the first hearing in May 2000, the union’s right to continue to represent its members was upheld until a final decision was taken. It was decided that a second hearing would take place on 30 May 2000, at which an expert mission of scholars with the appropriate academic background would be established to provide advice and guidance to the court.
8. 815. In the period of time between the first and second hearings, the Turkish Government, without any prior notification or consultation with the workers or their union, suddenly announced the closure of both the Haliç and Camialti shipyards, resulting in the impending dismissal of some 1,100 workers, virtually all of whom were Dok Gemi-Is members. Apart from the Pendik and Alaybey shipyards, the Haliç and Camialti shipyards were the only remaining shipyards where Dok Gemi-Is had membership. Consequently the threatened closure of the Haliç and Camialti shipyards, following the transfer of the Pendik and Alaybey shipyards to the Ministry of National Defence sector would, if upheld, result in the dissolution of Dok Gemi-Is, given that this would constitute the virtual loss of the union’s entire membership base.
9. 816. Furthermore, during the intervening period, those Dok Gemi-Is members who had refused to transfer to Harb-Is were subjected to ongoing harassment and intimidation, with management dismissing the maximum number of workers (nine per month) allowed under Turkish law. In the meantime, Harb-Is has been encouraged by the employers and the naval authorities to continue to poach Dok Gemi-Is members unchecked.
10. 817. At the second hearing, on 30 May 2000, the judge, contrary to what was expected, did not establish an expert mission, but simply dismissed Dok Gemi-Is’ claim without providing any reason or explanation for his decision at that time. It was stated that his reasoning would be made available at a later date and it has subsequently been suggested that his decision was the result of intense political pressure from both government and military authorities. It should be noted in this regard that the Minister of Defence in the current Government is a member of the Nationalist Movement Party (NMP), which is the second largest political group within the current coalition Government, and Harb-Is strongly supports and has very close ties with the NMP.
11. 818. The published reason for dismissing the case merely stated that the Special Decree had transferred the two shipyards into the military service sector and, as a result, Dok Gemi-Is was no longer able to represent the workers in the Pendik and Alaybey shipyards.
12. 819. Dok Gemi-Is lodged an appeal with the Turkish Supreme Court to contest the legality of this decision in July 2000, including a strong plea to allow a full hearing to take place, in order to ensure that all necessary evidence was made available to the Court of Appeal. In this submission it was argued that in determining the appropriate sectoral classification, instead of the name and or the title of the plants being seen as the decisive factor, it is the type of activities that are operated in the plant which should be taken into account, as stated in Turkish Labour Law (Act No. 2821). Mindful of the international implications of this case, the International Metalworkers’ Federation presented an independent submission to the Supreme Court of Appeal.
13. 820. The Supreme Court of Appeal met to consider Dok Gemi-Is’ appeal for a full hearing. Despite the fact that both Dok Gemi-Is and the IMF submitted strong grounds for ensuring that all the necessary evidence was made available, the five-judge panel rejected the request. Instead the appeal was restricted to simply review the evidence presented to, and the decision reached by the lower Court. The five-judge panel then voted, by a majority of three to two, to uphold the earlier decision. The two dissenting judges, however, explained that the majority decision was contrary to Turkish law and ignored the requirement to take cognizance of accepted international norms in establishing various economic or industrial sectors.
14. 821. The complainants point out that the artificial and unnecessary separation of the commercial and naval shipyards in Turkey is without precedent in any other democratic country and results in a deliberate denial of Turkish shipyard workers’ freedom of association. Furthermore, the refusal to recognize Dok Gemi-Is officials as legitimate representatives of the workers at the Pendik and Alaybey shipyards constitutes a denial of the right to collective bargaining. The infringements of freedom of association in Turkey have had, and will continue to have, significant and lasting implications for industrial relations in the country, while the actions of the Turkish Government and military authorities will, if allowed to proceed unchecked, likely result in the dissolution of Dok Gemi-Is.
15. 822. Further proof of the Turkish Government’s failure to observe and ensure that their citizens were able to enjoy the right of freedom of association, was evident in their refusal to intervene when requested to by Dok Gemi-Is, following the dismissal of some 200 workers at the ship-scrapping site at Aliaga, the day after they had agreed to join Dok Gemi-Is. When Dok Gemi-Is appealed to the Government for assistance to ensure the right to trade union membership was not denied to the workers at Aliaga, the Government refused their request, informing them that as ship-scrapping activities were in the private sector they were unable to intervene. At the present time none of the workers at the Aliaga ship-scrapping site are members of a trade union.
16. 823. The complainant adds that before a trade union can obtain official representation rights under Turkish law, they have to be able to prove that they have organized a majority of the workforce at each and every plant or workplace, that is: 50 per cent plus one, as well as representing 10 per cent of the entire workforce in that particular sector. Furthermore, a trade union is not allowed to receive any financial subscriptions from its members unless or until they have negotiated a collective agreement on their members’ behalf. Such stringent restrictions constitute a severe restriction on the right to freedom of association.
17. 824. As noted above, the Turkish economy is divided into various industrial or economic sectors, and trade unions are restricted from recruiting or accepting members from sectors other than those for which they have been granted specific representation rights. As a result, reflecting the impending loss of membership and thus income, Dok Gemi-Is was required to issue termination notices to its employees in June 2000, in order to provide the required period of notice. Finally, the complainant asserts that a further difficulty arises from the fact that those trade unions with membership in the Ministry of National Defence sector have to rely, for the settlement of any disputes, on a government-provided arbitration service.

B. The Government's reply

1. 825. In a communication dated 26 October 2001, the Government observes that in the wake of the massive earthquake, Golcuk Naval Shipyard, which belongs to the Turkish Navy, had been damaged so heavily as not to continue functioning properly. As the reconstruction was considered to be very difficult and costly, the decision was taken to transfer the Pendik and Alaybey shipyards, both of which belonged to the Turkish Ship Industry A.S., to the Ministry of National Defence, with a protocol signed in October 1999 between the contracting parties.
2. 826. Within the framework of the restructuring activities of the newly transferred units, many workers from other units of the Ministry of National Defence were transferred to these shipyards in order to increase the efficiency of the workplaces according to the needs of the new employer. Neither the transfer of the two shipyards nor the transfer of workers has anything to do with the trade union affairs. These are solely the requirements of the current conditions indispensable for the Turkish Navy after the damages of the earthquake.
3. 827. As regards the allegations of pressure on the members of Dok Gemi-Is to join another trade union, previously organized in the branch of national defence, the Government states that upon the transfer of the shipyards some of the workers may have joined another trade union but adds that this only depicts the exercise of free choice by the workers. The Government asserts that it did not and does not interfere with the free choice of workers. Existing laws and regulations stipulate that the workers have the right to join organizations of their own choosing in accordance with Conventions Nos. 87 and 98.
4. 828. In relation to the allegations on the administrative procedure followed during and after the transfer, the Government asserts that before the transfer there existed a collective agreement concluded between the Public Employers’ Association of Turkish Heavy Industry and Service Sector (TÜHIS) and Dok Gemi-Is, which had a validity period from 1 January 1999 to 31 January 2000. At the date of the transfer this agreement maintained its validity. The Ministry of National Defence applied to the Ministry of Labour and Social Security in November 1999 demanding its opinion whether the collective agreement, concluded previously in the newly transferred shipyards, was applicable when the change in the branch of activity was taken into consideration. In its response, the Ministry of Labour and Social Security informed the applicant that the collective agreement should continue until the end of its expiry date 31 December 2000. Having examined Dok Gemi-Is’ application, the First Ankara Labour Court also decided that the collective agreement should continue to be valid until the end of its expiry date.
5. 829. Dok Gemi-Is later appealed to the Ministry of Labour and Social Security demanding the determination of branch of activity for the two newly transferred workplaces in accordance with section 4, of Trade Unions Act No. 2821. Having examined the situation, the Ministry of Labour and Social Security decided that activities carried out in both shipyards fell into the Branch of National Defence and a formal decision of the Ministry of Labour and Social Security was published in the Official Gazette dated 25 February 2000.
6. 830. Dok Gemi-Is appealed the decision to the First Ankara Labour Court which rejected the complainant’s application and approved the decision of the Ministry of Labour and Social Security. The decision was upheld by the Court of Appeal in July 2000.
7. 831. After the transfer of the Alaybey and Pendik Shipyards came into effect, Dok Gemi-Is appealed to the Ministry of Labour and Social Security for the determination of the branch of activity covering nine naval shipyards in the activity branch No. 26 (national defence) in which the Harb-Is (trade union) was competent to conclude collective labour agreements. Having examined the case, the Ministry of Labour and Social Security decided that military workplaces (including the disputed two) fell into the branch of national defence, enumerated in Row No. 26 of section 60 of the Trade Unions Act. Dok Gemi-Is once again objected to this decision, appealing to the Fourth Ankara Labour Court which rejected the applicants demand and approved the decision of the Ministry of Labour and Social Security. This verdict was also approved by the Court of Appeal in November 2000.
8. 832. Regarding the branch of activity, section 3 of Act No. 2821 reads as follows: "Workers’ trade unions shall be constituted on an industrial basis by workers employed in establishments in the same branch of activity with the purpose of their activity widespread throughout Turkey. ... More than one trade union may be constituted in the same branch of activity." On the issue, section 4 of the same Act reads: "The branch of activity covering an establishment shall be determined by the Ministry of Labour and Social Security. This decision of the Ministry of Labour and Social Security shall be published in the Official Gazette. The parties concerned may lodge an appeal against this decision with the local court having jurisdiction in labour matters within 15 days of the publication. The Court shall give a ruling on the appeal within two months. Where this ruling is appealed, a final ruling shall be given by the Court of Appeal within two months." So, all the abovementioned administrative procedures during and after the transfer of the two shipyards were in conformity with the stipulations of the Trade Unions Act No. 2821 and the Collective Labour Agreement, Strike and Lockout Act No. 2822 and further supported by the Court decisions.
9. 833. As regards the allegation about Haliç and Camialti shipyards, no evidence could be found supporting the complainants allegations. On the contrary, Dok Gemi-Is has been considered to be competent to conclude collective labour agreements in the workplaces which belong to the Turkish Ship Industry A.S General Directorate (including Haliç and Camialti shipyards). The decision of the Ministry of Labour and Social Security related to competency was communicated to Dok Gemi-Is in February 2001. Another trade union, Limter-Is, organized in the same branch of activity, contested the decision of the Ministry of Labour and Social Security, appealing to the Istanbul Second Labour Court. The Court dismissed the demand of Limter-Is and the competency certificate for Dok Gemi-Is was issued by the Ministry of Labour and Social Security in July 2001 and communicated to Dok Gemi-Is. According to the records of the Ministry of Labour and Social Security, the total number of workers employed in these workplaces is 803 (not 1,100 as claimed by Dok Gemi-Is) and 467 of them are members of Dok Gemi-Is. The Ministry of Labour and Social Security is not aware of any information concerning the closing down of the workplaces. On the other hand, it is the reality of Turkey that some of the workplaces may be closed down because of the economic situation, leaving their workforce jobless and hence resulting in large-scale lay-offs. It is not reasonable to attribute all these occurrences to trade union activities. Furthermore, there is no information or document which substantiates any prevailing pressure on the workers or on the trade unions. On the contrary the decision of the Ministry of Labour and Social Security and the court decision are in favour of the complainant and Dok Gemi-Is continues to represent its members in these two workplaces. This development itself reflects the supremacy of the judiciary in Turkey.
10. 834. Regarding the allegations of pressure on the courts, it should be emphasized that the Turkish Constitution, as confirmed once again by the abovementioned fact, recognizes the supremacy of the judiciary, the independence of the courts and the separation of powers. Independence and impartiality of the courts and judges are ensured by law, so all the allegations about the decisions of the courts are not substantiated. It should also be added that the decisions of the courts do not contradict the objectives and provisions of Conventions Nos. 11, 87, 98, 100, 105, 111 and 135, which Turkey has ratified. Furthermore, dissenting opinions are a common practice of courts while giving their decisions. It should be taken as the concrete proof of the independence of judges rather than the indication of the pressure on the judges, as was alleged by the complainant.
11. 835. As for the allegation about the dismissal of 200 workers when they became members of Dok Gemi-Is, the Government states that no such complaint has yet been lodged with the Ministry of Labour and Social Security. The complainant makes allegations without any proof. However, whenever any complaint reaches the Ministry of Labour and Social Security on this matter, it will be examined thoroughly by the relevant institutions, in accordance with the legislative and administrative procedure.
12. 836. With respect to the issue of dual criteria for determining the representative status of trade unions for collective bargaining purposes, the Government has proposed to the social partners in two draft bills the lifting of the 10 per cent membership requirement of the union in the relevant branch of industry. The work on two draft bills proposing amendments mainly to the Trade Unions Act and the Collective Labour Agreement, Strike and Lockout Act has not been finalized yet due to continuing consultations with the social partners to reach a consensus on the question of dual criteria in particular. If the proposal is accepted by the social partners, a trade union that has the majority of the workers at the workplace will have representative status as the bargaining agent. Further information can be obtained from the reports of the Government concerning Conventions Nos. 87 and 98.
13. 837. Consequently, the Government considers that the allegations are unfounded and lacking of evidence. It is obvious that there is a dispute and challenge between two trade unions. The Government stands impartial and would like to stress again that no efforts will be spared in catching up with the standards set forth in the ILO Conventions to which Turkey is a party.

C. The Committee's conclusions

1. 838. The Committee notes that the allegations in this case concern the classification of certain shipyards as falling within the purview of the Ministry of National Defence sector resulting in the loss of representation rights for the Dok Gemi-Is trade union on behalf of workers involved in what were previously considered as commercial operations at the various shipyards. The complainants further allege threats, harassment and intimidation of Dok Gemi-Is members, as well as numerous anti-union dismissals in several shipyards.
2. 839. The Committee notes that the facts presented by the complainants and the Government in respect of the transfer of operations from the Golcuk shipyard to the Pendik and Alaybey shipyards and the corresponding representation rights at that time for the Harb-Is and the Dok Gemi-Is trade unions do not present any contradictions. The complainants’ main contention concerns the fact that, following the transfer of the Golcuk shipyard operations, the Government used its powers under the relevant national law to change the branch of activity classification of the Pendik and Alaybey shipyards from "shipbuilding" to "national defence". This decision was subsequently upheld by the relevant appeals courts and resulted in the loss of representation rights for Dok Gemi-Is, which asserts that it had almost 100 per cent of the membership of the workforce in the commercial sector at the Alaybey shipyard and over two-thirds of the workforce at the Pendik shipyard.
3. 840. The Committee notes the Government’s indication that the decision to classify these two shipyards under the national defence sector was not based on trade union concerns but rather on a need to restructure the shipyards due to the earthquake damage which had occurred at the Golcuk naval shipyard. In particular, the Government asserts that, within the framework of the restructuring activities, many workers from other units of the Ministry of National Defence were transferred to the Pendik and Alaybey shipyards in order to increase the efficiency of the workplaces according to the needs of the new employer. In light of these circumstances, the Ministry of Labour and Social Security decided that the activities of the two shipyards fell into the national defence branch and published a formal decision in the Official Gazette to this effect in February 2000.
4. 841. Act No. 2821 on trade unions (hereinafter, the Trade Unions Act) addresses questions of trade union formation and classification of branches of activity. Section 3 of the Trade Unions Act provides that trade unions may be formed at industrial level by workers employed in establishments in the same branch activity. The branch of activity covering an establishment is to be determined by the Ministry of Labour and Social Security, and the parties concerned may appeal the decision to the competent courts (section 4, of the Trade Unions Act). Section 60 of the Act sets out the various branches of activity along the lines of which workers and employers may organize.
5. 842. While the law permits more than one trade union in a given branch activity, it appears that a trade union can only represent workers in respect of one single branch of activity. Harb-Is is the trade union which has had sole representation rights in the naval shipyards classified as being in the national defence sector and Dok Gemi-Is has traditionally represented the workforce in shipyards with commercial operations, establishments which had been classified as pertaining to the shipbuilding sector. The result of the change in the classification of the Pendik and Alaybey shipyards is that, while the type of operations carried out has apparently not changed, the entire workforce is now considered as falling within the national defence sector; thus the workers who were members of Dok Gemi-Is may no longer be represented by this trade union.
6. 843. The Committee first recalls that the right of workers to establish and join organizations of their own choosing is one of the basic tenets of freedom of association. While the fact that trade unions at industrial level may only affiliate members from one single given branch of activity may be purely a matter of form, particularly in the light of the fact that these first-degree organizations appear to be free to establish and join federations and confederations, the Committee notes that, in the case at hand, the sudden change of the branch classification of the Pendik and Alaybey shipyards has, for a significant number of workers, resulted in the immediate loss of their right to be represented by the organization which they had freely chosen. While not calling into question the approach of setting up broad bands of classification relating to branches of activity for the purposes of clarifying the nature and scope of industrial level unions, the Committee considers that the fine distinction made between shipbuilding in the commercial sector and that carried out for naval purposes borders on the illogical, particularly given the identical nature of the functions carried out by the workers and the fact that there is no distinction between their status as "employee" falling within the scope of the Trade Unions Act. The radical impact of this decision in respect of the Dok Gemi-Is trade union and its members constitutes a clear violation of the right of workers to form and join organizations of their own choosing. In this respect, the Committee stresses that the right of workers to form and join organizations of their own choosing also implies the right to determine the structure of such organizations.
7. 844. In conclusion, the Committee considers that the classification of the Pendik and Alaybey shipyards as part of the national defence sector, with the resulting loss of trade union membership and representation, constitutes a violation of both the organizational and the representational rights of the workers affiliated to Dok Gemi-Is, in contravention of Convention No. 87 (ratified by Turkey). The Committee therefore requests the Government to take the necessary measures to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards and to ensure that any resulting lost membership in the Dok Gemi-Is trade union is immediately restored.
8. 845. As concerns the allegations related to the threatened change in classification of the Haliç and Camialti shipyards, the Committee notes the Government’s indication that no evidence could be found in this respect. Given that Dok Gemi-Is remains the representative union for the workers in these shipyards, and in the light of its above conclusions concerning the classification of commercial operations at shipyards, the Committee considers that this point does not call for further examination. On the other hand, the Committee regrets that the Government has not provided any specific information concerning the impending dismissal of 1,100 workers (virtually all of whom, according to the complainant, were Dok Gemi-Is members) as a result of the threats of closure of these two shipyards. The Committee therefore requests the Government to take the necessary measures to institute an independent investigation into these allegations and, if any dismissals have occurred due to anti-union discrimination, to take the necessary measures to ensure that these individuals are reinstated in their jobs with compensation for lost wages or that they be guaranteed adequate compensation for the damages suffered. Similarly, the Committee requests the Government to institute independent investigations into the allegations of harassment and intimidation of Dok Gemi-Is members by management, including the dismissal of the maximum number of workers allowed by law (nine per month), and the dismissal of some 200 workers at the ship-scrapping site at Aliaga the day after they had agreed to join the union. Again, the Government is requested to take the necessary remedial steps if these allegations are proven to be true and to keep the Committee informed in this regard.
9. 846. Finally, the complainants refer to the heavy burden of the dual criteria -- representation of at least 10 per cent of the workers in a given branch of activity and more than half of the workers in the establishment or in each of the establishments to be covered by the collective agreement -- necessary to obtain recognition rights (section 12 of the Collective Agreement Act No. 2822). The Committee recalls that it has already commented on this provision and requested the Government to take the necessary measures to amend it so that it would not constitute an obstacle to the right of workers’ organizations to represent their workers [see 303rd Report, para. 57]. While noting with interest the Government’s indication that it has proposed draft bills which would lift the requirement that a union represent 10 per cent of the workers in the relevant branch of industry, the Committee also notes that the Committee of Experts on the Application of Conventions and Recommendations, in its most recent observation (2002) concerning the application of Convention No. 98 in Turkey, has taken note of the Government’s indication that the Bill to amend Act No. 2822 has not been finalized due to continuing consultations with social partners in order to reach a consensus on the question of dual criteria and that these amendments are specified in the National Programme as having medium-term priority. The Committee therefore expresses the firm hope that the necessary measures will be taken to amend this provision in the near future to bring it into conformity with Conventions Nos. 87 and 98 and draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.