Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee takes note of the report of the High Level ILO Mission which visited the country on 28–30 April 2008, pursuant to a request by the Conference Committee on the Application of Standards in June 2007.

The Committee notes the Government’s report which contains, inter alia, a reply to the comments made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2008 (forwarding a communication by TURK-IS dated 12 August 2008). It also notes the Government’s reply to the ITUC communication dated 28 August 2007 (Government communications dated 9 January, 28 March and 17 June 2008) and the communication of the Confederation of Public Employees Trade Unions (KESK) dated 31 August 2007 (Government communication dated 9 January 2008).

The Committee also notes the comments made by the ITUC in a communication dated 29 August 2008, the KESK in a communication dated 1 September 2008 and the Confederation of Progressive Trade Unions of Turkey (DISK) dated 2 September 2008. The Committee requests the Government to provide full observations on these comments.

Civil liberties. In its previous comments, the Committee, taking note of several communications by workers’ organizations referring to violent repression of peaceful demonstrations, raised the issue of measures to give 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. The Committee had noted in this context that according to Circular No. 2005/14 published on 2 June 2005 (Official Journal No. 25883), the representatives of public service trade unions and confederations at the province or district level, as well as the officers of trade union and confederation branches, will not face disciplinary proceedings by reason of press statements made in the exercise of their trade union activities outside the scope of their functions as public servants. Moreover, their activities (meetings and demonstrations) organized under the provisions of the Act on Meetings and Demonstrations No. 2911 will be facilitated. In addition, various other circulars of the Prime Minister order 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 notes that TURK-IS, in a communication forwarded through ITUC, refers to the decision to prohibit workers from entering Taksim Square in Istanbul on May Day 2008, due to security reasons and to a violent repression of a peaceful demonstration by the TURK-IS affiliated Food, Beverage, Tobacco, Alcohol and Allied Workers’ Union (TEKGIDA-IS) on 19 February 2008. The Committee also notes that KESK refers to disproportionate force used by police on May Day 2008 against the workers who had gathered in front of the DISK offices in order to take part in the abovementioned demonstration organized by the three major confederations, TURK-IS, DISK and KESK. The Committee notes moreover that the ITUC and KESK refer to several instances of restrictions of trade union activities, especially demonstrations and publications, including through prison sentences, judicial inquiries opened and proceedings instituted against trade union members and officials. With regard to the public sector in particular, the ITUC refers in its 2007 comments to interference in the activities of public sector trade unions by the Government as employer. In particular, according to the ITUC, in the course of 2006, 15 public employees were transferred, 402 were subjected to “disciplinary inquiries”, four were given prison sentences, 131 were prosecuted in court and nine were fined; in 14 different workplaces, the unions were prevented from using their offices, and in three other cases, union offices were emptied by force during legitimate trade union activities. ITUC adds that unions must obtain official permission to organize meetings or rallies and must allow the police to attend their events and record the proceedings.

The Committee notes from the Government’s report that trade unions are not above the law and should respect the provisions of the national legislation, in particular, the Act on Meetings and Demonstrations No. 2911 as every other natural or legal person. Unlawful activities of the trade unions totally disrespecting the provisions of the applicable legislation cannot claim protection against police interference. Furthermore, judicial means of recourse are available to the trade unions and their members to contest both the actions of the police and the constitutionality or compliance of the provisions of the national legislation with international human rights instruments to which Turkey is party and which prevail over the national legislation (article 90 of the Constitution). The Government also provides data according to which trade unions conducted 1,247 activities in the first five months of 2008 and all these activities, except two, were conducted lawfully and ended in general without any incident. In reply to the comments made by the ITUC in 2007, the Government indicates that out of 1,149 activities organized by KESK in 2006, 66 persons had been taken into custody as a result of five meetings; out of 722 activities in the course of 2007 and until October of that year, 12 persons had been taken into custody as a result of one meeting. The Government adds that all the cases of violent suppression of demonstrations and strikes by the police reported by the ITUC (including a protest organized by KESK on 30 May 2006 referred to in the Committee’s previous comments) did not concern peaceful demonstrations and that the trade union leaders and members resisted and attacked the police, causing injuries; the police used force partly and gradually exercising the authority vested in it by the law. The Government finally indicates that unions do not have to obtain prior permission to organize meetings or rallies but rather, as provided in section 10 of Act No. 2911, should submit a notification signed by all the members of the organization committee to the provincial or district governor’s office 48 hours before the meeting. The Committee requests the Government to respond to the comment by ITUC that trade unions must allow the police to attend their events.

The Committee recalls that trade union rights include the right to organize public demonstrations, especially to celebrate May Day, provided that the trade unions respect the measures taken by the authorities to ensure public order. At the same time, the authorities should strive to reach agreement with the organizers of a demonstration to enable it to be held without disturbances and should resort to the use of force only in situations where law and order is seriously threatened; the intervention of the forces of order should be in due proportion to the danger to law and order that they are attempting to control.

The Committee requests the Government to indicate in its next report any proceedings instituted and decisions rendered in relation to the exercise of trade union activities, as well as any additional measures taken or contemplated with a view to ensuring that police intervention in demonstrations is limited to cases where there is a genuine threat to public order and avoiding the danger of excessive violence in trying to control demonstrations.

Draft bills. The Committee has been commenting for a number of years  on draft bills to amend Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strike and lockout. In its previous observation, while taking note of the improvements made to the draft bills amending Acts Nos 2821 and 2822, the Committee had requested the Government to indicate in its next report a specific timetable for the adoption and enactment of the draft bills amending these Acts in respect of the following issues: (i) the criteria for determining the branch of activity covering a worksite (unions must be constituted exclusively on a branch of activity basis); (ii) several detailed provisions in respect of the internal functioning of unions and their activities; (iii) severe restrictions of the right to strike (limitations on picketing; prohibitions and compulsory arbitration going beyond essential services in the strict sense of the term; excessively long waiting period before a strike can be called; heavy sanctions including imprisonment for participating in “unlawful strikes” the definition of which goes beyond what is acceptable under the Convention; prohibition of political strikes, general strikes and sympathy strikes).

The Committee notes from the Government’s report that pursuant to the 2008 High-Level ILO Mission and as a result of several meetings held within the framework of the Tripartite Consultation Board and its Working Group, two draft bills amending Acts Nos 2821 and 2822 were amalgamated into one draft bill and submitted to the Parliament (Turkish Grand National Assembly) on 20 May 2008 by a group of Members of Parliament belonging to the Government Party. The Parliamentary Committee on Health, Family, Labour and Social Affairs reviewed and amended the draft text from 23 to 24 May 2008 with the active participation of the social partners and submitted the draft bill to the Turkish Grand National Assembly on 27 May 2008. The text of the bill will be duly communicated to the ILO when enacted into law.

The Government adds that legislative provisions that were reported on previous occasions as requiring prior constitutional changes – i.e., section 25 of Act No. 2822 prohibiting strikes for political purposes, general strikes and sympathy strikes as well as the prohibition of occupation of work premises, go-slow strikes and other forms of obstruction provided for in article 54 of the Constitution – were not included for amendment in the draft bill.

The Committee notes with interest from the report of the High-Level ILO Mission, that there was consensus among the social partners and the Government on some amendments to be made to Acts Nos 2821 and 2822 so as to respond to the comments of the ILO supervisory bodies. The Committee notes with interest that a Bill amending Acts Nos 2821 and 2822 was introduced in Parliament on 27 May 2008. The Committee also recalls that the Conference Committee emphasized in 2007 the need for rapid steps to bring the law and practice into harmony with the Convention. The Committee requests the Government to indicate progress made in relation to the enactment of the Bill amending Acts Nos 2821 and 2822 and to communicate the relevant text so that the Committee may examine its conformity with the Convention. The Committee expresses the firm hope that the bill in question will fully take into account the consensus noted by the High-Level ILO Mission, as well as the comments previously made by the Committee with a view to bringing national law and practice into conformity with the Convention.

With regard to the prohibition of political strikes, general strikes and sympathy strikes which according to the Government, are not included in the reform as they require a constitutional revision, the Committee once again recalls that trade unions should be able to stage action in support of social and economic matters affecting their members’ interests, as well as sympathy strikes provided the initial strike they are supporting is itself lawful, and requests the Government to continue to indicate steps taken or contemplated to enable trade unions to take such action.

The Committee has been commenting for a number of years on a draft bill to amend Act No. 4688 on Public Employees’ Trade Unions (as amended by Act No. 5198). The Committee notes that according to the Government, consultations were held with the social partners but no information is provided on a timetable for the adoption of this Bill. The Committee requests once again the Government to transmit a copy of the current text of the draft bill to amend Act No. 4688.

Furthermore, the Committee recalls that for a number of years it has been referring to the following:

The exclusion from the right to organize of a number of public employees including public employees under probation (section 3(a) of Act No. 4688), prison guards, civilian personnel in military installations, senior public employees, magistrates, etc. (section 15 of Act No. 4688) amounting, according to the previous and latest communication by KESK, to 500,000 public employees; furthermore, 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 notes that according to the Government, it is envisaged to lift the prohibition of trade union membership for the civilian personnel of the Ministry of Defence and the police as well as the prison guards. 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, with the only possible exception contained in Article 9 of the Convention, are guaranteed the right to establish and join organizations of their own choosing.

The criteria under which the Ministry of Labour determines the branch of activity in the public sector and the implications of such determination on the workers’ right to form and join organizations of their own choosing. The Committee notes that according to the Government, the branches of activity determined in section 5 of Act No. 4688 are only 11 and therefore, they are not “narrow” and “leading to excessive fragmentation of trade unions in the public sector”, as previously indicated by the Committee. This criticism, which is based on the complaint of Yapi Yol Sen [see the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2537 (347th Report, paragraphs 1–26)], stems from the closure of an administrative unit (General Directorate of Village Affairs) which belonged to the branch of “Public works, construction and village services” and transfer of its personnel to the local administration and therefore, the branch of “Local governments”. Public servants exercise their right to organize according to the branch of service to which the public institution in which they work belongs and have the right to form or join organizations of their choice established in the relevant branch of service. Closure of an administrative unit within the framework of an administrative restructuring and transfer of its personnel to other units because of their status under public law rather than making them redundant, should not and cannot be considered as unilateral interference by the Government in trade union activities. Many trade unions have been established in the branches of services; for example 16 trade unions exist in the branch of education and the smallest number of trade unions in a branch is five.

The Committee takes due note of the Government’s comments concerning the number of branches of activity and the reasons for the particular change in branch as a result of an administrative restructuring. It regrets, however, the consequences of this transfer for the free exercise of the right to organize of the public servants in question who automatically lost their membership in Yapi Yol Sen, leading the union to face financial difficulties, as well as the fact that trade union officers automatically lost their office. It notes that the difficulties in this case arise from the fact that one branch in particular concerns an administrative authority, i.e. “Local governments”, while the other branches are thematic e.g. “Public works, construction and village services”, “Education”, etc.). Thus, the trade union membership was automatically lost, although the members continued to perform the same tasks under a different administrative authority. The Committee therefore once again 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.

Detailed provisions of Act No 4688 in respect of the internal functioning of unions and their activities. The Committee notes the comments made by the KESK and ITUC in their 2007 and 2008 communications 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) so as 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 Committee notes that, according to the Government, internal rules of trade unions and confederations are a source of legal obligations and therefore, all the members are expected to abide by them. Thus, they are examined on the basis of the provisions of the Constitution, the Civil Code, the Associations Act, Acts Nos 2821 and 4688. The control is carried out after each general assembly and this makes it possible to observe the contradictions even if they had not been previously noticed. In case of divergences from the legal provisions, the workers’ organizations are requested to harmonize the provisions. Consequently, it would not be appropriate to interpret this type of control as pressure exercised on unions. Terms like “collective bargaining”, “strike” etc., are not criticized as long as these activities do not take place in practice. With regard to Egitim Sen in particular, the Government indicates that by reason of the statement in the statute of this union demanding education in one’s mother tongue, a criminal complaint was filed by the Chief Public Prosecutor’s Office claiming breach of articles 3 and 42 of the Constitution and a case for dissolution was filed in the Ankara Labour Court. In the decision of the said court dated 27 October 2005, it was found that this provision of the statute is contrary to the Constitution which provides that the Republic of Turkey is a unitary State and an indivisible entity with Turkish as its language and that no language other than Turkish shall be taught as the mother tongue to Turkish citizens at any institutions of training or education. Egitim-Sen amended its statute and the case against it was dropped. Trade unions should carry out their activities in loyalty to the Constitution.

The Committee recalls once again, 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 and that legislative provisions which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, 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. With regard to the inclusion of terms like “collective bargaining” and “strike” in the statutes of public sector trade unions, which according to the Government are allowed as long as these activities do not take place in practice, the Committee recalls that the prohibition of strikes is only acceptable in the case of public servants exercising authority in the name of the State and essential services in the strict sense of the term and that trade unions representing public servants who are not engaged in the administration of the State should be able to engage in collective bargaining on behalf of their members, as one of the fundamental activities in which trade unions are involved. The Committee recalls that under Article 8 of the Convention, while trade unions are expected to respect the law of the land, this law should not be such as to impair the guarantees provided for in the Convention. With regard to the statute of Egitim Sen, the Committee recalls that in the conclusions and recommendations reached in Case No. 2366 (342nd Report, paragraphs 906–917) the Committee on Freedom of Association noted that on the one hand, 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, and on the other hand, 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 requests the Government to indicate in its next report the measures taken or contemplated, including amending the detailed provisions of Act No. 4688, so as to allow trade unions in the public service to draft their rules without undue interference.

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 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.

The right to strike in the public service. 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. It recalls that in the past, the Government indicated that 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. The Committee once again 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 and that in such cases, 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., paragraphs 158, 159 and 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.

Associations Act. In its previous comments, the Committee noted that, as provided in section 35 of the Associations Act No. 5253 of 4 November 2004, 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. 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 notes that according to the Government, section 19 of the Associations Act applies only if there are no provisions in the relevant special law, i.e., Act No. 2821 on Trade Unions sections 47–51 of which concern the auditing of trade unions. Noting that section 19 of the Associations Act only applies in a subsidiary manner, the Committee recalls nevertheless, 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, op. cit., paragraph 125).

The Committee recalls, 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 notes 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, 26 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure 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.

The Committee invites the Government to avail itself of the technical assistance of the Office if it so wishes.

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