Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report.

Article 2 of the Convention. 1. The Committee recalls that, under article 51 of the Constitution, the right to establish and join a union can be restricted on the following grounds: national security, public order, prevention of crime, general health and morals and the protection of the freedom of others. The Committee notes the Government’s indication that the restrictions on these grounds are ultimately for the protection of public order and not considered as prejudicial to the spirit of the right to organize; moreover, exercise of the right to organize was not restricted on the grounds of article 51.

2. (a) The Committee recalls that several categories of workers are denied the right to organize either because they are not covered by Act No. 2821 or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, contract personnel and apprentices (the Committee had noted that Act No. 5188 repealed Act No. 2495 concerning private security personnel and requested the Government to provide a copy). The Committee notes that the Government reiterates that, with the enactment of Private Security Personnel Act No. 5188 replacing Act No. 2495, private security personnel may now form or join trade unions. The Committee requests once again the Government to provide a copy of Act No. 5188 that repeals Act No. 2495 concerning private security personnel, and to indicate in its next report the measures taken or envisaged so as to ensure that the other categories of workers mentioned above enjoy the right to organize, in accordance with Article 2.

(b) Regarding foreign workers, the Committee recalls that section 5 of Act No. 2821 provides that a worker must be a Turkish citizen in order to be a founding member of a union. The Committee notes that the draft bill amending Act No. 2821 no longer refers to the condition of nationality but requires that a person must be in full possession of civil rights in order to establish a trade union. The Committee had requested the Government to clarify the meaning of civil rights. In its report, the Government indicated that, under the Civil Code, to be in full possession of civil rights means having the faculty of judgement recognizing good and evil and not being placed under the care of a guardian, as well as being of majority of age. According to the Government, when the draft bill amending Act No. 2821 is enacted, foreign nationals who have the capability to exercise civil rights will have the right to be founding members of trade unions. The Committee takes note of the Government’s indications and requests the Government to keep it informed of the progress made in the adoption of the Bill.

(c) The Committee recalls that, under paragraph 3 of section 22 and paragraph 2 of section 25 of Act No. 2821, a number of formalities, and in particular the intervention of a public notary, are required to become a member of a trade union or to resign from it. The Committee notes that the draft bill amending Act No. 2821 strengthens the observance of these provisions since members of the union executive boards who have not complied with the formalities shall be sentenced to a term of imprisonment. In its comments, the Confederation of Progressive Trade Unions of Turkey (DISK) also refers to the compulsory intervention of a notary for the members’ affiliations and resignations as one of the restrictions to the right to organize. The Committee had requested the Government to remove the required intervention of a notary from sections 22 and 25. The Committee notes that in its report the Government indicates that the draft bill amending Act No. 2821 will abolish the requirement of the intervention of a notary. The Committee requests the Government to ensure the withdrawal of the corresponding sanctions from the draft bill so as to fully guarantee the free exercise of the right to organize and to keep it informed of the progress made in this regard.

(d) The Committee recalls that section 14 of Public Employees’ Trade Union Act No. 4688 prohibits public employees from belonging to more than one trade union. The Government indicates in its report that this prohibition, as well as the prohibition in section 22 of Act No. 2821, applies to employees belonging to more than one trade union in the same branch activity at the same time.

(e) As regards restriction on the level of representation in section 3 of Act No. 2821 and section 4 of Act No. 4688, the Committee notes the Government’s report indicating that the aim of this restriction is to promote powerful unions representing branches of activities or services. Recalling that the right to join the organization of one’s own choosing includes the free determination of the level of representation, the Committee requests once again the Government to repeal the prohibition concerning the establishment of trade unions on an occupational or workplace basis in section 3 of Act No. 2821 and section 4 of Act No. 4688.

Article 3. The Committee notes that, under section 33 of Act No. 2822, the Council of Ministers can suspend for 60 days a lawful strike for public health and national security reasons. Appeals can be lodged with the Council of State. The Committee notes that, in accordance with section 34, if the parties have not been able to reach a settlement upon the expiry of the suspension period, the Ministry of Labour refers the matter to compulsory arbitration. The Committee notes from the government report that the draft bill amending Act No. 2822 modifies section 33 in order to provide for the advisory opinion of the High Board of Arbitration (a tripartite body), rather than the Council of State as was previously considered, before the suspension is decided by the Council of Ministers. In this respect, the Committee considers that the responsibility for suspending a strike under section 33 should lie with an independent body which has the confidence of all the parties concerned. In these circumstances the Committee requests the Government to amend section 33 of Act No. 2822 accordingly.

Article 4. The Committee recalls that section 37 of Act No. 4688 provides for the dissolution of a union or a confederation ordered by the labour court and, at the same time, makes reference to section 54 of the Law on Associations, which, according to KESK, empowers Governors to dissolve a union or a confederation without any court decision. The Committee notes from the Government’s report that, under the new Associations Act, administrative authorities do not have the power to dissolve an association or suspend its activities and that other relevant laws do not empower the administrative authorities in this respect and that, according to Civil Code No. 4721, a court verdict is necessary to dissolve an association or suspend its activities.

Article 5. The Committee recalls that, under section 3(g) of Act No. 4688, a confederation must be constituted of at least five unions from different sectors. The Committee requests the Government to provide information on the practical application of section 3(g) and to amend it in case it restricts the right of public employees’ unions to join confederations of their own choosing, including those which also group together organizations from the private sector. The Committee underlines that its request also applies to section 2 of Act No. 2821 which provides for a similar definition of a confederation.