Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Türkiye (Ratification: 1967)

Autre commentaire sur C111

Observation

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The Committee notes the observations of the Turkish Confederation of Employer Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IS), which were attached to the Government’s report.

Articles 1 and 2 of the Convention. Discrimination based on political opinion. For a number of years the Committee has been requesting the Government to provide information on the practical application of the Anti Terrorism Act and the Penal Code in cases involving journalists, writers and publishers expressing their political opinions. The Committee notes that according to TÜRK-IS, hundreds of journalists have been arrested or convicted because of their views; they also face lawsuits due to their political opinions. The Committee notes with regret that once again the Government has not provided any information on this issue and recalls that when protecting workers against discrimination with regard to employment and occupation on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles and opinions – since the protection of opinions which are neither expressed nor demonstrated would be pointless (see General Survey on equality in employment and occupation, 1988, paragraph 57, and General Survey on fundamental Conventions, 2012, paragraphs 805, 832 and 833). The Committee requests the Government once again to provide information on the number and outcome of cases against journalists, writers and publishers, including a brief summary of the facts and specific charges brought. The Committee also requests the Government to take the necessary measures, including legislative measures, to ensure that no journalist, writer or publisher is restricted in the exercise of their employment or occupation because of the political opinions expressed by them.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes the information provided by the Government according to which the Prime Ministry Circular No. 2010/14 on increasing women’s employment and achieving equality of opportunity has the objective of strengthening the socio economic status of women, achieving equality of men and women in social life, increasing the employment of women and ensuring equal wages for men and women, and creates a National Monitoring and Coordination Committee on the Employment of Women. The Committee further notes the establishment of the Parliamentary Commission on Equality of Opportunities for Women and Men and the adoption of the National Action Plan on Gender Equality (2008–13) which has the objectives of improving the employability of women, ameliorating the situation of rural women workers and fighting against gender discrimination, and which contains various strategies to improve women’s employment situation. The Government further indicates that in the context of the Strategic Plan 2008–12 prepared by the Directorate General on the status of women, “women-men equality and social gender equality training programmes” have been implemented, regional workshops were organized in 2009 and 2010, and a survey on the impact of already executed projects on employment and entrepreneurship for women by public institutions and non-governmental organizations is being carried out. The Government indicates that measures have also been taken in order to ensure that the Turkish Employment Organization provides a more efficient public employment service and facilitates access to more and better jobs for women. The Committee further notes the various projects and activities organized in order to raise awareness and to provide women with training mentioned by the Government in its Fourth National Report on the Implementation of the Revised European Social Charter submitted to the Committee on Social Rights of the Council of Europe on 16 February 2012 (RAP/RCha/TU/IV(2012)). The Committee further notes that the Bill concerning parental leave is currently before the National Assembly. Furthermore, the Committee notes that according to TISK 30,986 women benefited from the incentives provided by the Government in 2009.

According to the statistical information submitted by the Government with respect to education, the Committee notes that the rate of school attendance by girls and boys at primary school was similar to the rate in 2010. However, the enrolment of girls in secondary school was 62.21 per cent in 2010 compared to 67.55 per cent of boys in the same period. The Committee also notes the information concerning the high participation of women in university studies.

While taking due note of the range of policies and measures adopted by the Government, the Committee observes that the Government provides scarce information on the concrete impact of these measures in increasing the participation of women in the labour market. Indeed, according to the statistics provided, it continues to be very low (for example 32,513 men and 6,668 women in the manufacture of leather and related products, 27,192 men and 6,658 women in the manufacture of paper and related products). The Committee notes that TÜRK-IS refers to the fact that traditional gender roles restrict women’s choice of employment and occupation and segregates them in low paid and intensive working jobs. In this regard, the Committee observes that, according to the information provided by the Government, women appear to be concentrated in the education and health services sectors, the only sectors where their participation is higher than that of men. Furthermore, although the participation of girls in education has considerably increased in the last years, this does not seem to have had a consistent impact in their inclusion in the labour market.

The Committee highlights the importance of the Government continuing to take proactive policies and measures in order to overcome the persistent inequality between men and women in employment and occupation and to ensure that the girls that enrol in the education system today will be able in the future to participate fully in all economic sectors and occupations without discrimination. The Committee requests the Government to provide concrete information in accordance with Article 3(f) of the Convention on the results achieved by all the programmes and measures adopted, including those adopted in the framework of the National Action Plan on Gender Equality (2008–13). Please include specific information concerning women in rural areas and women over 45 years of age. The Committee further requests the Government to continue to provide detailed statistical information on the situation of men and women in the labour market, including their participation in the various sectors and occupations.

In its previous comments, the Committee requested the Government to provide information on the number of female students expelled from universities for wearing headscarves on university premises, and to report on the measures taken to assess and review this matter. The Committee notes that the Government refers to the authorities responsible for dealing with the admission and registration as well as the expulsion of students but does not provide the information requested previously. The Committee understands that, according to the information from the website of the National Assembly, the Committee on Equality of Opportunities for Women and Men has examined a bill concerning freedom of dressing in the universities. The Committee once again recalls that while the existing prohibition of head coverings includes all forms of coverings and applies to men and women, these measures may have a discriminatory effect on women with regard to their access to university education. The Committee therefore requests the Government to take more active steps to obtain information on the number of female students expelled from universities for wearing headscarves on university premises, and to report on the measures taken to assess and review this matter. Please also provide information on any bill concerning freedom of dressing examined and discussed by the Committee on Equality of Opportunities for Women and Men, the result of such examination and any follow up thereto.

Articles 1, 2 and 3. Discrimination in respect of recruitment and selection. For a number of years, the Committee has been referring to the fact that section 5(1) of the Labour Code which prohibits any discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or similar reasons in the employment relationship, does not prohibit discrimination at the recruitment stage. The Committee had noted, notwithstanding that pursuant to section 122 of the Turkish Penal Code a person practising discrimination on grounds of language, race, colour, sex, disability, political opinion, philosophical beliefs, religion, creed or other grounds, who makes the employment of a person contingent on one of these grounds or who prevents a person from carrying out an ordinary economic activity, shall be sentenced to imprisonment for a term of six months to one year or a judicial fine. The Committee previously requested the Government to provide information on the number, nature and outcome of criminal proceedings undertaken under section 122 of the Penal Code and to indicate whether persons considering themselves victims of discrimination in recruitment could bring complaints under section 122 of the Penal Code and whether they could obtain compensation or other remedies. The Committee observes that the Government provides no concrete information on this issue. However, according to the TISK there is no possibility for persons who are victims of discrimination to claim compensation on the basis of section 122 of the Penal Code. While recognizing the important role of penal sanctions against those employers responsible for acts of discrimination, as they can be an effective deterrent for these kind of acts, the Committee highlights that discrimination causes material and moral harm to those that have been discriminated against, it is important that the victims of discrimination have access to judicial proceedings and benefit from suitable remedies (see General Survey, 1988, paragraphs 227 and 228, and General Survey, 2012, paragraphs 884–886). The Committee requests the Government to take measures so as to ensure that victims of discrimination in respect of recruitment and selection have access to adequate procedures and remedies and to provide information thereon. Please also provide information on the number, nature and outcome of criminal proceedings under section 122 of the Penal Code.

Enforcement. In its previous comments the Committee referred to the persistent discrimination denounced by trade unions and requested the Government to provide information on whether the labour inspectorate had dealt with any cases under section 5 of the Labour Code as well as to indicate whether the courts had decided any such cases. The Committee notes that according to the latest comments from TÜRK-IS the only remedies available for discrimination are in the context of lengthy and expensive legal proceedings. It further indicates that the burden of proof falls on the worker and that obtaining reinstatement in cases of dismissal is very difficult. The Committee notes that the Government provides no concrete information in this respect. The Committee highlights the importance of raising awareness of the relevant legislation, enhancing the capacity of the competent authorities, including judges, labour inspectors and other public officials, identifying and addressing cases of discrimination and also examining whether the applicable substantive and procedural provisions, in practice, allow claims to be brought successfully. The Committee also stresses the need to collect and publish information on the nature and outcome of discrimination complaints and cases, as a means of raising awareness of the legislation and of the avenues for dispute resolution, and in order to examine the effectiveness of the procedures and mechanisms (see General Survey, 2012, paragraph 871). The Committee requests the Government to provide information on the complaints related to the implementation of section 5 of the Labour Code dealt with by the Labour Inspectorate as well as the cases brought before the judicial authorities. Please indicate the number, nature and outcome of such cases, including the number of reinstatements, and provide information on any assessment carried out on the effectiveness of the existing procedures, including the impact of the burden of proof, as well as any awareness-raising or capacity-building measures adopted.

Articles 1, 2 and 3(d). Application of the Convention in the civil service. The Committee notes that the Government reiterates that civil servants are appointed on the basis of results of a centralized examination throughout the country. The Government further indicates that this selection is carried out in the framework of the “General Regulation on the examinations to be executed from those who shall be appointed to the public services for the first time” and the “Procedures and principles of the recruitment of workers in the public institutions and establishments” of 1 November 2009. According to the Government, this recruitment is done without any discrimination on the ground of sex, and career promotions are decided on the basis of prior examination. Furthermore, the Government indicates that positive measures are taken in favour of women to give them preference in certain posts related to “child improvement” and social services. The Committee notes, notwithstanding, that according to statistics provided by the Government in its latest report, there were 1,148,001 men and 592,923 women in the public service. The Committee considers that where measures are adopted in order to overcome the low participation of women in the public service, these measures should permit women to have access to all jobs at all levels including high-level jobs and those with career prospects. Moreover, measures that respond to historical attitudes and stereotypes regarding women’s and men’s aspirations, preferences and capabilities which increase or accentuate the existing sex segregation in the labour market should be avoided. The Committee requests the Government to take proactive measures to encourage women’s participation in the civil service and to address any allegations of gender discrimination in designations for positions or career promotion in the civil service and to report on the results achieved. It also requests the Government to ensure that both women and men can participate in practice in the examinations for different positions in the civil service on an equal footing. Please provide detailed information, disaggregated by sex, on how many people participate in these examinations and for which position and how many are designated for the different positions in the civil service.

In previous comments, the Committee referred to security investigations and expressed concern that they might lead to exclusions from civil service employment. The Committee understands from the Government’s reply that although the administrative courts may adopt a decision regarding exclusions from the civil service, these decisions constitute a mere statement that will not necessarily have an impact on the recruitment of a candidate. Noting that the Government does not provide information on the number of administrative decisions concerning security investigations on candidates for civil service positions, the number of administrative appeals against these decisions by those allegedly excluded from civil service on the basis of security investigations and the outcomes of those proceedings, the Committee reiterates its request to the Government to provide detailed information in this regard.

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