Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee notes the Government's report. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1981 (see 313th Report, paragraphs 244-269, approved by the Governing Body at its March 1999 session). Finally, the Committee notes the comments made by the Turkish Confederation of Employer Associations (TISK), the Confederation of Turkish Trade Unions (TURK-IS) and the Confederation of Progressive Trade Unions of Turkey (DISK).

Articles 1 and 3 of the Convention. Further to its previous comments on the protection against anti-union discrimination under Trade Union Act No. 2821, the Committee takes note of the copies of judicial decisions sent by the Government which show that compensation in case of various acts of anti-union discrimination is granted quite frequently. The Committee further notes the Government's statement that section 31 of Act No. 2821 provides compensation of not less than the total amount of the worker's annual salary; this is not a fixed amount and may be increased by contract or collective agreement or by court decision. The Committee would nevertheless request the Government to keep it informed of any progress made in the adoption of new legislation, mentioned by the Government in it previous report.

Article 4. With regard to a number of limitations on collective bargaining mentioned by TURK-IS in its observations, the Government furnishes the following detailed comments.

On the issue of the prohibition of collective bargaining for confederations, the Committee notes the Government statement to the effect that the heterogeneous structure of confederations makes it difficult to conclude agreements along vertical lines. However, active involvement of the confederations in the bargaining process and even their leading role in the negotiations on behalf of their affiliated unions particularly in the public sector, is a widely accepted practice.

The requirement of one collective labour agreement at a given level has been imposed by the Constitution which has provided that no more than one agreement may be concluded for an establishment or enterprise at a given time span. The dual system of industry versus establishment level bargaining which existed before 1983 had led to various difficulties and abusive practices involving the conclusion of successive local agreements under the pretext of industry-wide authorization. In addition, industry-wide bargaining does exist in practice and collective labour agreements covering whole branches of activity are concluded in such industries as banking, sea transport, railway transport and national defence, etc.

With regard to ceilings imposed on indemnities, the Committee notes that the minimum levels imposed by Act No. 2821 and the Labour Act may be increased in favour of the worker by agreement. The only ceiling imposed is on the severance pay under the Labour Act. The severance pay that amounts to 30 days' salary for each year of the past service may also be increased in favour of the worker by contract or collective agreement but for one year and may not exceed the annual maximum retirement bonus to be paid to the public servant of the highest rank when retired.

Regarding the issue of the 60-day time limit for bargaining, the Government reiterates that following the 60-day negotiations stage, the parties are free to continue negotiating during the mediation stage as well as during the strike action which is entirely open ended.

On the issue of the dual criteria contained in legislation for determining the representative status of trade unions for collective bargaining purposes, the Committee notes that according to the Government this is a major issue which should be dealt with on a tripartite basis without giving way to the spread of "yellow" unions at the workplace level under the domination of the employer.

The Committee notes that the above-enumerated legislative limitations on collective bargaining do not appear to be observed by organizations of workers which, in practice, are free to pursue free collective bargaining. The Committee therefore requests the Government to indicate, in its next report, the measures taken to remove these restrictions with a view to promoting collective bargaining in accordance with Article 4 and national practice.

On the issue of the right to organize for public servants, the Government indicates that it was not able to secure the passage of the draft Bill on public servants' trade unions that had already been discussed by the Parliament due to the requests of opposition parties for its revision. The draft Bill was resubmitted by the new Government during the current session of the Parliament. The Committee once again expresses the firm hope that the Bill on public servants' unions will grant collective bargaining rights to public servants with the sole possible exception of those engaged in the administration of the State. The Committee requests the Government to provide information in this regard in its next report.

With regard to the issue of the collective bargaining rights of workers in export processing zones (EPZs), the Committee had previously noted that if negotiations failed, Act No. 3218 of 1985 imposes compulsory arbitration in EPZs for the settlement of collective labour disputes. The Committee notes the Government's statement that the ten-year period laid down by Act No. 3218 of 1985 expired in the Mersin and Antalya zones in 1997 and will come to an end in the Aegean and Atatürk Airport zones in 2000.

The Committee would nevertheless recall that the imposition of such compulsory arbitration runs contrary to the principle of the voluntary nature of negotiations established in Article 4. It therefore requests the Government to take the necessary measures to ensure that all workers in all EPZs enjoy the right to negotiate freely their terms and conditions of employment.

Finally, the Committee notes the Government's statement that in order to remove any discrepancy that might exist between the national legislation and the ILO Conventions that have been ratified by Turkey, the Government and the social partners decided in March 1999 to establish a tripartite committee of experts with a mandate to examine the labour legislation and to propose amendments where necessary.

The Committee trusts that this tripartite committee of experts will take account of the Committee's comments when proposing amendments to labour legislation. The Committee requests the Government to send information in this respect. It once again requests the Government to consider availing itself of the assistance of the Office with a view to removing the obstacles which prevent the Convention from being fully applied.