Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee takes note of the information provided in the report communicated by the Government, as well as the comments attached to the report made by the Confederation of Turkish Trade Unions (TÜRK-IS), the Confederation of Progressive Trade Unions of Turkey (DISK) and the Turkish Confederation of Employers’ Associations (TISK). The Committee also notes the response of the Government to the observations made by the Confederation of Public Servants’ Trade unions (KESK) and by the Energy-Building and Road Construction-Union (EYYSEN), dated 1 June and 10 September 2001, respectively. The Committee also notes that observations were communicated by the Independent Public Sector Communication Employees’ Union (BAGIMSIZ HABER-SEN), the Turkish Union of Public Employees in the Education, Training and Science Services (TÜRK EGITIM-SEN), as well as by the International Confederation of Free Trade Unions (ICFTU). The Committee requests the Government to transmit its comments thereon.

In its previous comments, the Committee had examined particular provisions of the following laws: Act No. 4688 on public employees trade unions, the Unions Act No. 2821, the Collective Labour Agreements, Strike and Lockout Law No. 2822 and Act No. 3218 imposing compulsory arbitration in export processing zones. The Committee had asked the Government to take the necessary measures: (a) to ensure that public servants, other than members of the armed forces and the police, fully enjoy the right to organize (sections 3(a) and 15 of Act No. 4688); (b) to enable workers’ organizations to determine freely whether union officers may remain in their posts during their candidacy or election to local and general elections (section 37 of Act No. 2821 and section 10 of Act No. 4688); (c) to ensure the right of workers’ organizations to organize their activities without interference by the public authorities (sections 29, 30 32 and 54 of Act No. 2822); (d) to ensure that those public servants who are not exercising authority in the name of the State and who cannot be deemed to be carrying out essential services in the strict sense of the term may have recourse to industrial action without penalty (Act No. 4688); (e) to ensure that workers in export processing zones have the possibility of taking industrial action in defence of their interests (provisional section 1 of Act No. 3218); and (f) to ensure that public officials’ organizations may organize their administration and activities without any undue interference by the public authorities (section 10 of Act No. 4688).

The Committee notes that according to the information provided by the Government in its report, the review of Acts Nos. 2821, 2822 and 4688 will be undertaken by a tripartite commission, in light of the provisions of the Convention and that the relevant comments of the Committee have been communicated to the commission.

The Committee also notes with interest, from the Government’s report, that by virtue of an Act adopted by Parliament on 3 August 2002, provisional section 1 of Act No. 3218 has been repealed. It requests that the Government communicate a copy of this Act with its next report, as well as a copy of the recent Labour Security Law which, the Committee understands, is due to take effect in March 2003.

The Committee requests that the Government keep it informed of the progress made in the review of Acts Nos. 2821, 2822 and 4688 and in this regard refers the Government to its previous comments made thereon. In light of the Government’s report, the Committee would especially like to draw the Government’s attention to the following points.

Article 2 of the Convention

Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. The Committee notes the Government’s comments in respect of sections 3(a) and 15 of Act No. 4688. The Committee would like to recall that, in light of the broad wording of Article 2 of the Convention, all public servants and officials should have the right to establish occupational organizations (see paragraphs 48 and 49 of its General Survey on freedom of association and collective bargaining, 1994). The only admissible exception is that specified in Article 9 of the Convention in respect of members of the armed forces and the police. It follows, and to address specifically the point raised by the Government concerning public officials holding managerial positions or positions of trust, that under the Convention, to exclude totally these public officials from the right to organize is not compatible with its provisions. On the other hand, the Committee recalls that to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: (a) the officials concerned are entitled to establish their own organizations; and (b) the legislation should limit the category of officials concerned to those exercising senior managerial or policy-making responsibilities (see General Survey, op. cit., paragraph 57). While duly noting the Government’s indications that Act No. 4688 is a significant development in the legislative reforms engaged by it, the Committee once again requests that the Government take the necessary measures to amend sections 3(a) and 15 of Act No. 4688 so as to ensure that all workers without distinction whatsoever fully enjoy the right to organize in accordance with Article 2 of the Convention.

Article 3 of the Convention

In its previous comments, the Committee had pointed out, in respect of several provisions of Acts Nos. 2821, 2822 and 4688, that the national legislation unduly regulated trade union internal matters and that it could give rise to undue interference by public authorities in the functioning and the activities of trade unions. The Committee takes note of the indications given by the Government in respect of several provisions of Act No. 4688 (sections 9, 10, 13, 18, 23, 25) and that, in particular, the aim of these provisions is either to facilitate the internal functioning of the unions or to encourage the emergence of powerful unions. The Committee must recall, however, that Article 3 of the Convention, guarantees the free functioning of workers’ and employers’ organizations by recognizing four basic rights: to draw up their constitutions and rules; to elect their representatives in full freedom; to organize their administration and activities; and to formulate their programmes without interference by the public authorities (see General Survey, op. cit., paragraph 108). The Committee considers that the abovementioned Acts overly regulate the functioning, the organization and the activities of trade unions. It refers the Government to its previous comments in this regard.

With reference to the observations made by the Confederation of Progressive Trade Unions of Turkey (DISK), the Committee notes from section 43 of Act No. 4688 that, when a matter is not regulated by the Act, the provisions of the Law on Associations No. 2908, shall apply. Further, under section 63 of Act No. 2821, unions are subject, in particular, to the provisions of the Law on Associations, which are not contrary to Act No. 2821. The Committee asks the Government in its next report to specify the matters relating to the functioning and the activities of trade unions which are governed by the law on associations and the practical implications for trade unions of these provisions.

1. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes free from government interference - public servants. In its previous comments, the Committee had noted that section 35 of Act No. 4688 made no mention of the circumstances in which strike action may be exercised in the public service. It had also noted the comments made by the Government on the specificity of the status of public servants in respect of the right to strike. Noting the absence of comments from the Government on this particular issue and the observations made by the Turkish Confederation of Employer Associations (TISK), the Committee would like to reiterate the following: the restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State (see General Survey, op. cit., paragraph 158). The Committee would also like to recall that restrictions to the right to strike by the imposition of compulsory arbitration can only be justified in respect of this limited category of public servants and those working in essential services in the strict sense of the term. Further, where the right to strike may be prohibited or limited, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity. In these circumstances, the Committee must once again request the Government to take the necessary measures to ensure that those public servants who are not exercising authority in the name of the State and who may not be considered to be carrying out essential services in the strict sense of the term have the right to engage in industrial action. For those public servants who may be restricted in the exercise of industrial action, the Committee requests the Government to indicate the measures taken or envisaged to ensure that these workers have the full benefit of compensatory guarantees.

In its previous comments, the Committee had noted that, under section 10 of Act No. 4688, upon application to a labour court by an official of the Ministry of Labour and Social Security, a union executive committee can be removed if it does not comply with the requirements set out in the law in respect of the timing of the general assembly meetings, the majority needed to summon an extraordinary general assembly or in respect of other meetings of the general assembly. In its report, the Government indicates that it is the labour court which decides on the removal of the union executive committee and that the appointment of a temporary administrator is provided to ensure continuity in the most important activities of the union. The Committee recalls that the removal of union executive bodies should be motivated solely by considerations related to protecting the members of organizations and should only be possible through normal judicial proceedings (see General Survey, op. cit., paragraphs 122 and 123). Section 10 provides for the removal of the executive bodies in case of non-respect of requirements set out in the law, whereas the Committee has considered that the requirements referred to should be left to the free determination of the occupational organizations and their members in their constitution and rules. The Committee therefore once again requests the Government to take the necessary measures to repeal section 10 of the Act so as to ensure that workers’ organizations may organize their administration and activities without interference by the public authorities.

2. The Committee further recalls the need to amend the following provisions:

-  Act No. 2821: section 37 (suspension and termination of the mandate of a union officer in case of candidacy to local and general elections or election);

-  Act No. 4688: section 10 (suspension and termination of the mandate of a union officer in case of candidacy to local and general elections or election - public service);

-  Act No. 2822: sections 25 and 70 (prohibition of protest and sympathy strikes and penal sanctions applicable for participation in "unlawful strike" not determined in accordance with the Convention); sections 29 and 30 (imposition of compulsory arbitration in respect of services which cannot be considered to be essential in the strict sense of the term); sections 21 to 23 as well as sections 27, 28, 35 and 37 (excessively long waiting period of nearly three months from the start of negotiations before a decision to call a strike may be taken); and section 48 (severe limitations on picketing).

The Committee asks the Government to indicate in its next report the measures taken to bring its legislation and practice on all outstanding points into full conformity with the Convention.

The Committee is raising a number of other points in a request addressed directly to the Government.