Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its 2007 observation which read as follows:

The Committee notes the Government’s report for the period ending May 2006, which included observations from the Confederation of Turkish Trade Unions (TÜRK-IŞ) and the Turkish Confederation of Employers’ Associations (TISK). It would appreciate receiving in the Government’s next report copies of relevant updated legislation which gives effect to the provisions of the Convention as well as relevant decisions issued by the courts on the matters covered by the Convention (Parts I and II, IV and V of the report form).

Follow-up to a representation submitted under article 24 of the ILO Constitution. The Committee recalls the conclusions adopted in 2000 by the committee set up by the Governing Body to examine a representation made by the Confederation of Turkish Trade Unions (TÜRK-IŞ) alleging non-observance by Turkey of Convention No. 158, which concluded that sections 14(1) and 16 of the Maritime Labour Act (No. 854) and section 6 of the Journalists Labour Act (No. 5953) do not require a valid reason for dismissal. TÜRK-IŞ reiterates that these categories of workers are still not able to benefit from the provisions of the Convention. The Committee notes that the Government indicates in its report that several provisions, in particular section 18 of the new Labour Act No. 4857 on valid grounds for dismissal are applicable by analogy to journalists. It further notes that the provisions of the Maritime Labour Act (No. 854) on dismissal were not modified. The Committee thus asks the Government to provide further information on the manner in which it is ensured in practice that workers who are subject to the Maritime Labour Act (No. 854) are not dismissed without a valid reason, as required by the Convention.

Article 2, paragraphs 2 and 3, of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. TÜRK‑IŞ indicates that workers on fixed-term contracts of employment or in temporary or seasonal employment, and those with less than six months’ service at a workplace do not benefit from the provisions of the Convention. The Committee asks the Government to indicate what safeguards have been provided against recourse to contracts of employment for a specified period of time, the aim of which is to avoid protection resulting from the Convention.

Article 2, paragraphs 4–6. Undertakings excluded from the Convention. In reply to previous comments, the Government refers to section 18 of the new Labour Act No. 4857 of 2003 which provides that dismissal must be based on a valid reason only when the worker is employed in an establishment with 30 or more workers. The Government also refers to Article 2(5) of the Convention, and indicates that establishments with fewer than 30 workers are excluded from the application of the Convention. TISK indicates that this exclusion is based on the premise that these businesses would not be able to afford the burden of “job security” provisions and a lengthy termination procedure. TISK also indicates that the limit of 30 workers is very low and is preventing the improvement of employment, as businesses in labour-intensive sectors of industry try not to exceed 30 workers as they do not want to fall within the scope of the “job security” provisions for employees. The Committee observes that the categories of workers that may be excluded pursuant to Article 2(5) must be identified and listed by the member State ratifying the Convention in its first report submitted under article 22 of the ILO Constitution following ratification, in accordance with Article 2(5)(6). It notes in this respect that the Government’s first report received in December 1997 contained no indication that workers employed in establishments with fewer than 30 workers were to be excluded from the application of the Convention under the terms of Article 2(5). The Committee therefore requests the Government to indicate how workers employed in establishments with fewer than 30 workers are covered by the protection afforded by Article 4 of the Convention.

Other categories of workers excluded. The Committee also notes that several provisions of the new Labour Act do not apply to employers’ representatives and their assistants authorized to manage the entire enterprise and those who are also authorized to recruit and terminate the employment of employees (last paragraph of section 18 of the Labour Act). The Committee asks the Government to indicate the manner in which the protection afforded by the provisions of the Convention is ensured in respect of employers’ representatives and their assistants.

Article 4. Valid reason for termination. TÜRK-IŞ indicates that it is not clear what type of conduct or lack of capacity would constitute a valid reason for termination or what requirements of the workplace or the business would be regarded as sufficient ground for termination of employment. TISK indicates that, although the employer is free to determine the content and objectives of its operational decisions, it has to demonstrate that the termination of employment had become necessary as a consequence of the operational decision. Referring to section 25 of the Labour Act respecting termination of employment due to “a situation incompatible with good will or the code of ethics or other similar situations”, TISK indicates that the worker will be entitled neither to seniority pay nor to unemployment benefits. The Committee asks the Government to provide details on relevant court decisions which give effect to Article 4, which constitutes the “cornerstone” of the Convention (paragraph 76 of the 1995 General Survey on protection against unjustified dismissal). It reiterates its interest in being informed about the manner in which a “situation incompatible with good will or the code of ethics or other similar situations” is considered by the courts as a valid reason for termination of employment.

Article 10. Remedies in case of invalid termination. TÜRK-IŞ indicates that court decisions do not result in the reinstatement of workers as the employer has the right to choose reinstatement or the payment of compensation. TÜRK-IŞ also indicates that these difficulties arise because the worker does not have the right to choose between reinstatement or compensation. In this respect, TISK notes that due to the backlog of judicial cases which are taking a year to conclude, an establishment which dismisses a worker may be compelled by a court decision to
re-employ the worker a year later and that establishments which do not want to do so face paying large sums in compensation. TISK refers to section 21 of the Labour Act and indicates that it is not possible to waive or to change the amount of compensation or other entitlements specified in that section, either to the detriment or the benefit of the employee. The Committee asks the Government to provide information on the effect given in practice to Article 10 of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.