Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the discussion in the Conference Committee on the Application of Standards in June 2007.

The Committee notes the Government’s reply to the comments made by: the Confederation of Public Employees Trade Unions (KESK) in communications dated 2 September 2006 and 31 August 2007 (government communications of 16 February and 24 October 2007); the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) in communications dated 12 July and 10 August 2006 (government communication of 2 January 2007); the Confederation of Progressive Trade Unions of Turkey (DISK) dated 9 and 24 April 2007 (government communication dated 16 October 2007). The Committee finally notes the comments made by the ITUC in a communication dated 28 August 2007 with regard to continuing government interference in trade union affairs. The Committee requests the Government to provide its observations thereon.

Civil liberties. The Committee notes that the Conference Committee deeply regretted that the Government had still not provided any information in reply to the serious allegations made by workers’ organizations with regard to police violence and arrests of trade unionists and government interference in trade union activities, including the banning of union-related booklets, posters, etc. The Committee emphasized that respect for basic civil liberties is an essential prerequisite to the exercise of freedom of association and requested the Government to take all necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention.

The Committee recalls that the allegations in question (made by the ICFTU, KESK and the Turkish Confederation of Public Workers Association (Türkiye Kamu-Sen) concerned the following issues: (i) the violent repression by Istanbul police of two peaceful demonstrations on 8 March 2005 to mark International Women’s Day; (ii) the violent suppression by the police of a peaceful demonstration organized by Egitim Sen (affiliate of the KESK) on 26 November 2005 to demand a re-evaluation of overtime and better sanitary inspections, leading to the injury of 17 demonstrators and, as indicated in the communication by the KESK dated 31 August 2007, the conviction of 11 of its trade union executive members to prison sentences of 15 months; according to the KESK, its President Ismail Haki Tombul and the former President of YAPI-YOL SEN, Fehmi Kutan, risk imprisonment as they cannot have their sentences suspended because they were previously convicted; the issue depends on the outcome of their appeal, which is currently pending; (iii) violent police dispersion of a demonstration by the KESK on 30 May 2006, in protest of the social security reform under discussion in Parliament; (iv) the ban of union-related posters, advertisements and calendars in some public institutions.

The Committee notes that according to the Government, the holding of demonstrations in conformity with the law does not fall under the mandate of the Ministry of Labour and does not seem to involve trade union rights in the framework of the Constitution, the Trade Union Act No. 2821 and international standards on freedom of association. The prosecution of officials of the KESK and its affiliated trade unions after the demonstration organized by Egitim Sen on
26–27 November 2005, was due to the non-respect of the formalities for the staging of demonstrations, the closing by the demonstrators of central highways to traffic and attacks by the demonstrators on the police with clubs and stones. With regard to the comments by the KESK, the Government refers to Circular No. 2005/14 which provides that there shall not be any disciplinary inquiry into press statements of province and district representatives of unions and confederations as well as officials of union branches, unions and confederations, in the context of their union activities, provided that these statements are not related to their duties (as public employees). Moreover, in the same Circular, it is envisaged that meetings and demonstrations organized by the province and district representatives of the unions and confederations and the officials of union branches, unions and confederations under the provisions of the Act on Meetings and Demonstrations No. 2911 will be facilitated. Finally, the Government also makes reference to various Circulars of the Prime Minister ordering the administration to observe the relevant provisions of the legislation and not to obstruct union activities (circulars dated 6.6.2002, 12.6.2003 and 2.6.2005).

The Committee recalls that police intervention should be limited to cases where there is a genuine threat to public order and should be in due proportion to such threat. Governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations. The Committee requests the Government to indicate in its next report measures taken with a view to giving the police adequate instructions so as to ensure that police intervention is limited to cases where there is a genuine threat to public order and to avoid the danger of excessive violence in trying to control demonstrations.

Legislation adopted. 1. The Committee notes the text of Act No. 5672 of 26 May 2007 communicated by the Government. The Act amended section 14(14) of Act No. 2821 by lifting the requirement of ten years’ employment in order to enjoy eligibility for trade union office (restrictions remain with regard to election to the General Council of trade unions). The Committee notes moreover from the statement of the Government representative to the Conference Committee, that the lawsuit brought in 2001 against the DISK in respect of the election of its representatives was rejected in the final instance on 22 December 2004.

2. The Committee notes the text of Act No. 5620 of 4 April 2007 communicated by the Government. It notes that section 4(2) of this Act amends section 3(a) of Act No. 4688 so that public employees working under fixed-term contracts are now entitled to join public employees’ unions.

The Committee notes that in its conclusions, the Conference Committee, while noting the above steps towards the fuller application of the Convention, regretted that these steps were insufficient in light of the numerous occasions on which that Committee and the Committee of Experts had urged the Government to take rapid steps to bring its law and practice into conformity with the Convention.

3. The Committee notes the text of the Associations Act No. 5253 of 4 November 2004. The Committee notes that according to section 35 of the Act, certain specific sections of this Act apply to trade unions, employers’ organizations as well as federations and confederations if there are no specific provisions in special laws concerning these organizations. Thus, the Committee observes that section 19 (which is applicable to workers’ and employers’ organizations), enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours notice. The Committee considers that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee observes, moreover, that section 26 of the abovementioned Act (which is applicable to workers’ and employers’ organizations) establishes a requirement of permission by the civil administration authority in order for an organization to open student dormitories and boarding houses linked to education and teaching activities. The Committee recalls that according to Article 3 of the Convention, workers’ and employers’ organizations have the right to organize their activities, such as, for instance, training, without interference which would restrict this right or impede its lawful exercise. The Committee requests the Government to indicate in its next report the measures taken or contemplated to amend sections 19 and 26 of Act No. 5253 of 2004 so that: (i) verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members; and (ii) activities of workers’ and employers’ organizations, such as the opening of training centres, is not subject to permission from the authorities.

Draft bills. The Committee has been commenting for a number of years on draft bills to amend Act No. 4688 on public employees’ trade unions (as amended by Act No. 5198), Act No. 2821 on trade unions, and Act No. 2822 on collective labour agreements, strike and lockout. In its previous observation, the Committee took note of several improvements to the draft bills amending Acts Nos 2821 and 2822: (1) the removal of the condition of nationality for eligibility to election as trade union officer; (2) the abrogation of the provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37, paragraph 3); (3) the abrogation of the provision under which the Governor is entitled to appoint an observer at the general congress of a trade union (Act No. 2821, section 14, paragraph 1); (4) the removal from the list of activities where strikes are prohibited of the following activities: the production of lignite coal for thermal plants; public notaries; sea and land transport or railway, and other rail transport (Act No. 2822, section 29); urban public transportation on land, sea or rail; lignite production to feed power plants; exploration, production, refining and distribution of petroleum; petrochemicals the production of which is based on naphtha or natural gas; (5) the removal of the prohibition of unions’ television and radio stations which results from Act No. 3984; (6) the exclusion of unions from the scope of section 43 of Associations Act No. 2908, which provides that associations are allowed to invite any foreigner to Turkey or send one of their members abroad, provided due notification is given in advance to the Governor.

While noting the positive steps taken so far, the Committee is bound to observe that the draft bills in question have still not been finalized and passed into law and that the Government gives no specific indication of the timetable for their adoption, so as to translate the provisions of these draft instruments into tangible progress on the ground. The Committee requests the Government to indicate in its next report a specific timetable for the adoption and enactment of the draft bills amending Acts Nos 4688 on public employees’ trade unions, Act No. 2821 on trade unions, and Act No. 2822 on collective labour agreements, strike and lockout. The Committee expresses the firm hope that the bills in question will be finalized and passed into law without further delay and that these bills as well as the future legislation will fully take into account all the comments made by the Committee with a view to bringing national law into conformity with the Convention. The Committee enumerates once again these comments below.

Article 2 of the Convention. 1. The exclusion from the right to organize of a number of public employees (sections 3(a) and 15 of Act No. 4688). The Committee notes that, although the abovementioned Act No. 5620 of 4 April 2007 amended section 3(a) of Act No. 4688 so that public employees working under fixed-term contracts are now entitled to join public employees’ unions, no change has been introduced with regard to the prohibition of the right to organize of public employees under probation (section 3(a) of Act No. 4688) and with regard to the exclusion from the right to organize of several categories of public employees including prison guards, civilian personnel in military installations, senior public employees, magistrates, etc. amounting, according to the KESK, to 500,000 public employees (section 15 of Act No. 4688). It further notes that, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union.

The Committee underlines that Article 2 of the Convention provides that workers without distinction whatsoever, including prison guards, civilian personnel in military installations, senior public employees and magistrates, should have the right to form and join organizations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. As regards public employees “in positions of trust”, the Committee recalls once again that it is not compatible with the Convention to exclude totally these public officials from the right to organize. On the other hand, 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: first, that the officials concerned have the right to form their own organizations to defend their own interests; and, second, that the category of the employees concerned is not so broadly defined as to weaken the organizations of other public employees by depriving them of a substantial proportion of their actual or potential membership. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so that, in the framework of the legislative reform under way, all workers, without distinction whatsoever, are guaranteed the right to establish and join organizations of their own choosing.

2. The criteria under which the Ministry of Labour determines the branch of activity covering a worksite (unions must be constituted on a branch activity basis) and the implications of such determination on the workers’ right to form and join organizations of their own choosing (sections 3 and 4 of Act No. 2821). The Committee notes that the statement of the Government representative to the Conference Committee did not provide any new information in this regard and, in particular, did not specify the criteria on which a particular worksite may be classified in a given branch of activity, as previously requested by the Committee. In previous reports, the Government had indicated that classification of the work under a branch of activity takes into account international standards and the views of workers’ and employers’ confederations and that the relevant decision of the Ministry of Labour may be appealed against at the local labour court and the court of cassation. According to the Government, the draft bill on trade unions would envisage fewer branches of activity in order to make a more rational classification and pave the way for much stronger trade unions.

In this respect, the Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2537 (347th Report, paragraphs 1–26) which concerned allegations that as a result of the provisions limiting trade union organization by branch of activity, YAPI-YOL SEN automatically lost members who, pursuant to an administrative reorganization, were transferred from the General Directorate of Village Services to local governments (according to the Government, they were taken out of the branch of activity entitled “Public works, construction and village services” and were transferred to the branch relevant to local governments). According to YAPI YOL SEN, regardless of the fact that these workers continued to perform identical tasks under a new administrative authority, they automatically lost their membership in YAPI-YOL SEN; thus, membership fees are no longer deducted and the check-off system is considered invalid, leading the trade union to financial difficulties. The Committee on Freedom of Association observed with regret that this is the second case concerning Turkey where the Ministry of Labour and Social Security modified the branch of activity classification on the basis of questionable criteria – which do not relate to the nature of activity carried out but to the authority under which work is performed – with very serious consequences for the trade unions concerned (loss of membership and representation rights) [see Case No. 2126, 327th Report, paras 805–847]. The Committee notes the further observations made by the Committee on Freedom of Association according to which, the duties of trade union officers are automatically terminated under section 16 of Act No. 4688 where changes occur in branch classifications.

The Committee deeply regrets the recurrent unilateral interference by the Government in trade union membership and activities, in particular through the narrow determination of categories of workers that may come together in a single trade union, which could, as a consequence, lead to excessive fragmentation of trade unions in the pubic sector. The Committee recalls once again that, while it considers that the setting up of broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions is not in itself incompatible with the Convention, this classification and its modification should be determined according to specific objective and pre‑established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee therefore requests the Government to provide in its next report information on steps taken or contemplated so as to:

(i)    amend section 5 of Act No. 4688 as well as the Regulation on the Determination of Branch of Activity of Organizations and Agencies, which determine the branches of activity according to which public employees’ trade unions may be established, so as to ensure that these branches are not restricted to any particular ministry, department or service, including local governments;

(ii)   amend the Regulation of 2 August 2005 (which amends the Regulation on the Determination of Branch of Activity of Organizations and Agencies) so as to maintain Yapi-Yol Sen members within the branch of activity entitled “Public works, construction and village services” in conformity with the nature of their functions and their willingness to remain affiliated to Yapi-Yol Sen; more generally, the Committee requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2 of the Convention,

(iii) amend section 16 of Act No. 4688 so as to ensure that trade union office is not terminated by reason of the transfer of a trade union leader to another branch of activity, or his/her dismissal or simply the fact that a trade union leader leaves the work.

Article 3. 1. The detailed provisions of Acts Nos 4688, 2821 and 2822 in respect of the internal functioning of unions and their activities. The Committee notes that the statement of the Government representative to the Conference Committee reiterates previously provided information according to which the rationale behind the detailed provisions of Acts Nos 4688, 2821 and 2822 is to ensure the democratic functioning of the unions and to protect the rights of their members while draft Bills Nos 2821 and 2822 will make legislation less detailed.

The Committee notes of the comments made by the KESK and ITUC with regard to repeated interference by the authorities into the statutes of the KESK and five of its affiliates (Egitim Sen, Kültür-Sanat Sen, ESM, Haber-Sen and SES); the Government interventions aim to make these trade unions amend their aims as stated in their statutes, with regard to terms such as “collective bargaining”, “collective agreement”, “job security”, “collective dispute” which are being considered as contrary to Act No. 4688; in 2006, Egitim Sen had to amend its statutes by eliminating reference to “the right to receive education in one’s mother tongue”, in order to avoid being dissolved. The Government indicates that this is in conformity with section 6 of Act No. 4688, which provides that in case of divergencies between the law and the statutes of trade unions, the relevant governorship should request the union to correct its statutes.

The Committee recalls the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2366 (342nd Report, paragraphs 906–917) concerning the statute of Egitim Sen. In particular, while noting that limits may be placed on the right of trade unions to draw up their constitutions and rules in full freedom where the manner in which they are expressed may imminently jeopardize national security or the democratic order, the Committee on Freedom of Association expressed serious concerns that references in a union’s by-laws to the right to education in a mother tongue had given and could give rise to the call for dissolution of a trade union. The Committee emphasizes that trade unions should have the right to include in their statutes the peaceful objectives that they consider necessary for the defence of the rights and interests of their members. It recalls that legislative provisions which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey of 1994, op. cit., paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. The Committee requests the Government to cease its interference in the statutes of the KESK and its affiliates and to indicate in its next report the outcome of the court proceedings pending on this issue. It also once again requests the Government to indicate in its next report the measures taken or contemplated with a view to amending the detailed provisions of Acts Nos 4688, 2821 and 2822 so as to avoid interference with the internal functioning of unions and their activities.

2. The removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688). The Committee notes that the statement of the Government representative to the Conference Committee did not provide any new information in this respect. It once again emphasizes that workers’ organizations may organize their administration and activities without any interference by public authorities on grounds which are incompatible with Article 3. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend section 10 of Act No. 4688 to enable workers’ organizations to determine freely whether union officials may remain in their post during their candidacy or election in local or general elections.

3. The right to strike in the public service (section 35 of Act No. 4688). The Committee recalls that section 35 of Act No. 4688 makes no mention of the circumstances in which strike action may be exercised in the public service and that, according to the statement of the Government representative to the Conference Committee, a constitutional amendment is required for the review of restrictions on the right to strike of public servants; however, the Government is planning to launch a personnel reform in the public sector whereby “public servants” in the narrow sense of the term, i.e. those exercising authority in the name of the State, would be defined first and then carefully distinguished from other public employees; work on this reform programme was continuing as a priority. The Committee underlines that 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 and those working in essential services in the strict sense of the term (see General Survey, op. cit., paragraphs 158 and 159). Where the right to strike is prohibited or limited in a manner compatible with the Convention, 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 (see General Survey, op. cit., paragraph 164). The Committee requests the Government to indicate in its next report the measures taken, including the possible personnel reform in the public sector, so as to bring section 35 of Act No. 4688 into conformity with the above. Furthermore, the Committee requests once again the Government to transmit a copy of the new draft modifying Act No. 4688.

4. The right to strike under Act No. 2822. The Committee recalls that it has commented on several occasions on certain provisions of Act No. 2822 concerning the right to strike and which are incompatible with the Convention: section 25 prohibiting strikes for political purposes, general strikes and sympathy strikes (furthermore, article 54 of the Constitution, which contains similar prohibitions further prohibits occupation of work premises, go-slow strikes and other forms of obstruction); section 48 placing severe limitations on picketing; sections 29 and 30 prohibiting strikes in many services which cannot be considered to be essential in the strict sense of the term and section 32 under which compulsory arbitration at the request of any party may be imposed in the services where strikes are prohibited; sections 27 (referring to section 23) and 35 providing for an excessively long waiting period before a strike can be called; sections 70–73, 77 and 79 providing for heavy sanctions, including imprisonment, for participating in “unlawful strikes” the prohibition of which, however, is contrary to the principles of freedom of association. In this respect, the Committee notes that the statement of the Government representative to the Conference Committee reiterates previously provided information according to which some of the restrictions on the right to strike, such as those mentioned in section 25, require a constitutional amendment; however, several restrictions will be lifted with the amendment of Act No. 2822; for instance, in addition to the revision of the list of activities where strikes may be prohibited (noted above), the waiting period for the staging of a strike has been shortened in the draft bill amending Act No. 2822, to a maximum of 30 days or 45 days if the parties have recourse to mediation. The Committee once again requests the Government to indicate in its next report the tangible progress made in amending the above provisions so as to bring them in line with the Convention.

Noting that the Conference Committee requested the Government to accept a high-level ILO mission with a view to assisting it in rapidly taking the necessary measures to bring its legislation into conformity with the Convention, the Committee trusts that this mission would take place in the near future and that it will be able to assist the Government in bringing its law and practice into full conformity with the Convention.

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