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

Articles 1 and 3 of the Convention. With reference to its observation, the Committee notes the comments made by the ICFTU to the effect that while Act No. 2821 and Act No. 4857 provide for rules under which freedom of association is safeguarded, it is generally considered that these Acts do not provide sufficient protection of trade union leaders against transfer and dismissal. There is no obligation to reinstate trade unionists discriminated against (with the exception of shop stewards). Further, the fines to be imposed in case of anti-union discrimination are very small and not dissuasive enough. With reference to Act No. 4857, in particular, the ICFTU underlines that while trade union membership and participation in trade union activities cannot be considered as a just motive for dismissing an employee, the minimum number of employees at a given workplace has been increased, from ten to 30, for the application of the law. It thus gives employers the possibility of avoiding the application of Act No. 4857 by employing fewer than 30 workers at a plant or by employing workers on fixed-term contracts. The ICFTU points out that as of 2000, 95 per cent of the workplaces in Turkey employed less than 30 employees.

The Committee notes that the Government refers in its report to section 5 of Act No. 4857 under which any kind of discrimination on the basis of language, race, sex, religion, political thought or other similar grounds is illegal. In case of infringement by an employer of this provision, a worker can claim compensation. The Government adds that if the discrimination is based on anti-union grounds, the worker can also claim compensation, which cannot be inferior to his annual salary, in accordance with section 31 of Act No. 2821. Further, any employer infringing section 5 will be subject to a fine of 50 million TL for each of the workers concerned. The Government confirms that under Act No. 4857 a valid reason must be given for the termination of the contract of employment and that participation in trade union activities, in particular as a union representative, cannot be considered as such a valid reason.

The Committee notes that both Act No. 2821 and Act No. 4857 provide for protection against acts of anti-union discrimination. At the same time, the Committee notes that questions arise as to whether section 31 of Act No. 2821 is applicable in all cases of dismissals for anti-union reasons. The Committee requests therefore the Government to provide clarifications in respect of the following instances:

-  The dismissal on anti-union grounds of a worker fulfilling the conditions set out in section 18 of Act No. 4857; the Committee notes in this respect that the compensation afforded to the worker can be inferior (even if accrued wages are paid) to that provided under section 31 of Act No. 2821;

-  An employer’s refusal to reinstate a trade union officer upon the cessation of his mandate for anti-union reasons and the resulting termination of the trade union officer’s contract; the Committee notes that the applicable provision, section 29 of Act No. 2821, as amended under the draft bill, does not specify the amount of compensation which can therefore be in certain cases inferior to the minimum provided under section 31.

With respect to sanctions applicable to anti-union discrimination, the Committee notes the ICFTU’s observations on the insufficient protection against anti-union discrimination. The Committee notes that in case of anti-union discrimination upon dismissal or in the course of employment, in violation of section 31, Act No. 2821 does not provide for any sanction. The same holds true for the prohibition of dismissal on anti-union grounds set out in section 18 of Act No. 4857. Recalling that legal standards prohibiting anti-union discrimination are inadequate if they are not accompanied with sufficiently dissuasive sanctions to ensure their application, the Committee requests the Government to take the necessary measures so that the prohibitions set out in the two provisions mentioned above are accompanied with dissuasive sanctions. Finally, the Committee notes that the amount of the sanctions provided under section 59(2) (non-reinstatement of trade union officer) and section 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 have apparently not been reviewed for a long time and are thus clearly inferior to the sanctions provided under Act No. 4857. The Committee therefore requests the Government to revise the amounts of the sanction provided under sections 59(2) and (3) of Act No. 2821 so that they constitute sufficiently dissuasive sanctions.

The Committee requests the Government to keep it informed on the points raised above. It further requests the Government to provide copies, along with its next report, of any judicial decisions granting compensation for acts of anti-union discrimination and applying the corresponding sanctions to employers.

Article 4. The Committee notes that, according to KESK, Act No. 4688 is based on consultative talks that result in a non-binding text. The Committee notes also the comments made by TURKIYE KAMU-SEN in this respect. The Committee notes that under section 34, collective consultative talks shall be concluded, at the latest, within 15 days. If the parties have reached an agreement within this time limit, an agreed text signed by them shall be submitted to the Board of Ministers for any appropriate measures, including legislative measures. If the parties have not reached an agreement within the required time limit, under section 35, one of them can refer the matter to the Reconciliation Committee. The Reconciliation Committee takes a decision which, if accepted by both parties, will become the agreed text to be submitted to the Board of Ministers. If the decision is not accepted by the parties, all the points of agreement, as well as those unresolved, shall be submitted to the Government in the form of an official report signed by the parties.

While the specification of a time limit within which the negotiations should be concluded is not in itself incompatible with the Convention, the Committee considers that this time limit should be reasonable so as to ensure that the parties are in a position to hold full and meaningful negotiations. The time limit of 15 days set out in section 34 seems rather short to achieve such a purpose. The Committee therefore requests the Government to take the necessary measures to amend this provision in order to enable the parties to negotiate for a longer period. Finally, the Committee requests the Government to provide practical information on the outcome of the negotiation process and in particular, on the number of negotiations, which have resulted in agreed texts and those which have resulted in a report to the Board of Ministers following the parties’ refusal of the decision of the Reconciliation Committee. In addition, the Committee requests the Government to specify whether the agreed texts automatically result in measures being taken by the Board of Ministers and, if the latter has refused to take measures, the number of such instances.