Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee takes note of the information provided in the report communicated by the Government as well as the observations, attached to the report, made by the following organizations: the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Public Employees of Turkey (TURKIYE KAMU-SEN), the Confederation of Turkish Trade Unions (TURK-IS), and the Turkish Confederation of Employers’ Associations (TISK). The Committee also notes the responses of the Government to the observations made by DISK, by the International Confederation of Free Trade Unions (ICFTU) and by the Confederation of Public Employees Trade Unions (KESK). The Committee requests the Government to transmit its comments on the observations sent by the ICFTU and TURKIYE KAMU-SEN on the collective bargaining process both in the public and the private sectors, in their communications dated 15 December 2003 and 11 November 2004, respectively.

In its previous comments, the Committee examined the conformity with the Convention of the following laws: Act No. 4688 on public employees’ trade unions, the Unions Act No. 2821, the collective labour agreements, strike and lockout Act No. 2822 and Act No. 3218 imposing, under provisional section 1, compulsory arbitration in export processing zones. The Committee notes that certain sections of Act No. 4688 have been amended by Act No. 5198 and a draft comprising further modifications to Act No. 4688 is under preparation. With respect to Acts Nos. 2821 and 2822, the Committee notes that two draft bills have been prepared. Regarding Act No. 3218, the Committee notes with satisfaction that Act No. 4771 has repealed provisional section 1. Finally, the Committee takes note of the entry into force of the New Labour Act No. 4857. The Committee requests the Government to transmit the second text amending Act No. 4688 with its next report as well as an updated version of the texts amending Acts Nos. 2821 and 2822.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that its previous comments related to section 18 of Act No. 4688; while this provision generally provides for a prohibition of acts of anti-union discrimination, this guarantee is not accompanied by sufficiently effective and dissuasive sanctions. The Committee notes that in its most recent observations, the ICFTU points out to a number of instances in which public employees, as trade union members or officers, suffered various acts of anti-union discrimination. The Committee also notes that the Committee on Freedom of Association has recently examined, in Case No. 2200, allegations of anti-union discrimination in the public service (see 330th Report, paragraphs 1077-1105, and 334th Report, paragraphs 722-762). In its report, the Government indicates that, it is currently considering the introduction of sanctions to ensure effective prohibition of anti-union discrimination. Recalling that legal standards are inadequate if they are not coupled, notably, with sufficiently dissuasive sanctions to ensure their application, the Committee requests the Government to submit with its next report the text of any amendment introducing sufficiently dissuasive sanctions to ensure the effectiveness of the prohibition set out in section 18.

Article 4. Free and voluntary collective bargaining. 1. With respect to the dual criteria to determine the representative status of a union for the purpose of collective bargaining set out in section 12 of Act No. 2822, in its previous comments (see the 2002 observation), the Committee expressed the firm hope that the Government would take the necessary measures to ensure the conformity of the draft Bill amending Act No. 2822 with the requirements of the Convention. The Committee notes that in its report, the Government points out that the draft bill reduces one of the criteria: the requirement that a union represents at least 10 per cent of the employees engaged in a given branch of activity will now be lessened to 5 per cent. The Committee takes due note of this amendment but notes at the same time that the other requirement - that the union should represent over half of the workers employed in the workplace - is maintained, as is the combination of the two criteria. The Committee must therefore once again point out that the numerical requirements in section 12 of Act No. 2822, even as amended, are not in accordance with the principle of voluntary collective bargaining. Thus, unions representing the majority of workers in a workplace but not having membership strength of more than 50 per cent of the workers cannot enter into collective bargaining with the employer. The Committee considers that at the enterprise level, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions, at least on behalf of their own members. Similarly, the Committee notes that a trade union meeting the 50 per cent criterion cannot bargain if it does not represent at least 5 per cent under the draft bill (10 per cent under the current legislation) of employees engaged in a given branch of activity. The Committee expresses the hope that the Government will take the necessary measures to remove the two numerical requirements from the national legislation in order to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4. In addition, the Committee notes that according to comments submitted directly by DISK, the Ministry of Labour and Social Security did not mention this organization in its statistics published on 17 July 2003, although it had reached the 10 per cent requirement in its branch of activity, and thus prevented the organization from participating in the collective bargaining process. In its comments attached to the Government’s report, DISK makes similar representations concerning some of its affiliates. The Committee notes that in its reply the Government refers only to the statistics published in respect of one of DISK’s affiliates (Sosyal-IŞ), and which were eventually rectified by the Ministry of Labour and Social Security as a result of an objection raised by the union concerned before the courts. The Committee requests the Government to transmit information in respect of DISK and the other cases raised in its comments attached to the report, so as to enable the Committee to draw its conclusions on the matter.

2. With respect to collective bargaining in the public service, in its previous comments (see 2002 observation), the Committee had requested the Government to provide details on the role and functions of the Supreme Administrative Committee, the Institution Administrative Committees and the Public Employers’ Committee during collective bargaining. The Committee had pointed out also that the scope of conditions of employment to be negotiated should not be restricted to the economic conditions mentioned in section 28 of the Act but should also cover all questions concerning conditions of work. The Committee notes that the Government has not addressed the issue of the scope of the negotiations. The Committee notes that the Government has given some explanations about the role and function of the Supreme Administrative Committee and the Institution Administrative Committees but not about the Public Employers’ Committee. Thus, the first two committees have been established with a view to enable, both within a particular institution or at the inter-institutional level, public employees to voice their opinion on their conditions of work and the application of the relevant laws and regulations. The Supreme Administrative Committee submits proposals to the Public Employers’ Committee in relation to conditions of work, and rights and duties of public employees, which form the basis of collective negotiation. The Supreme Administrative Committee monitors the application of the agreed text, which will result from the negotiations. The Government underlines that meetings were held with social partners notably on the functioning of the committees. Both the representatives of the confederations and the public employers suggested that the Supreme Administrative Committee should be abolished, as it has no real function.

The Committee takes note of the explanation provided by the Government regarding both the Supreme Administrative Committee and the Institution Administrative Committees. It notes that the parties to the negotiation are, on the one hand, the Public Employers’ Committee, and on the other, unions and the confederations to which they are affiliated. The Committee notes that the Public Employers’ Committee is composed of representatives of the Prime Minister, the Ministry of Finances and of the Treasury, as well as of the public employers’ organization. The Committee recalls that legislative provisions which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 263). The Committee therefore once again requests the Government to explain the role and function of the Public Employers’ Committee and, in particular, to explain the manner in which the direct employer participates in the negotiations alongside the financial authorities.

Further, the Committee recalls that measures taken unilaterally by the authorities to restrict the scope of the negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see General Survey, op. cit., paragraph 250). While noting the Government’s indications that discussions at the level of the Supreme Administrative Committee and the Institutions Administrative Committees relate to conditions of work and the rights and duties of public employees, the Committee underlines that section 28 quite clearly limits the scope of the negotiations to financial issues. It therefore requests the Government to take the necessary measures to amend section 28 in a manner compatible with Article 4.

Article 6. Public servants engaged in the administration of the State. In its previous comments, the Committee noted that sections 3(a) and 15 of the Public Employees’ Trade Unions Act No. 4688 deny several categories of public servants the right to organize, and consequently the right to collective bargaining. The definition of a public employee in section 3(a) refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees (such as lawyers, civilian civil servants at the Ministry of National Defence and the Turkish armed forces, employees at penal institutions, etc.) who are prohibited from joining trade unions. The Committee requested the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than those engaged in the administration of the State, are fully ensured the right to collective bargaining in accordance with the Convention. The Committee notes with interest that the Government indicates that the draft bill amending Act No. 4688 will remove the reference to the "trial period" and that the definition of "public employees" will be revised so as to include in particular, special security personnel. Nevertheless, it seems that public employees holding positions of trust will remain outside the scope of Act No. 4688. The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff) who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). The Committee expresses the firm hope that the revision of sections 3(a) and 15 of Act No. 4688 will take into account the comments made above and requests the Government to submit with its next report the text of the relevant amendments.

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