Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 135) concernant les représentants des travailleurs, 1971 - Türkiye (Ratification: 1993)

Autre commentaire sur C135

Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC) and the report of the Confederation of Progressive Trade Unions of Turkey (DİSK) attached to it, received on 1 September 2017 concerning issues examined by the Committee in its present observation, and the Government’s reply thereto. The Committee also notes the observations of the Turkish Confederation of Employers’ Associations (TİSK) and the International Organisation of Employers (IOE) received on 31 August 2017, as well as the observations of the Confederation of Public Servants’ Trade Unions (MEMUR SEN) and the Turkish Confederation of Public Workers Associations (Türkiye Kamu-Sen) communicated with the Government’s report. The Committee takes due note of the detailed reply of the Government to the 2016 observations of the KESK and TÜRK-İŞ, and the observations of TÜRK-İŞ communicated with the Government’s report.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards, in June 2017, concerning the application of the Convention by Turkey. It takes note in particular of the conclusions of the Conference Committee in which it called upon the Government to ensure that workers’ representatives in the undertaking are protected from prejudicial acts including dismissal and arrest, based on their status or activities as a workers’ representative in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements, in particular during emergency situations, to respond to the allegations of the trade unions concerning the dismissal, arrest and discrimination against workers’ representatives following the proclamation of the state of emergency, and to provide detailed information in response to these conclusions to the Committee of Experts at its next meeting in November 2017.

Article 1 of the Convention. Massive dismissals of public servants. The Committee notes that in the course of the discussion at the Conference Committee, the Worker members referred to the dismissal and ban from public service of more than 100,000 employees under emergency decrees. They indicated that trade union officials in public institutions were systematically targeted by allegations leading to their suspension and dismissal; that the grounds for dismissal were always general, alleging membership, connection to, or communication with a terrorist organization, without any individualized justification and evidence being provided or any opportunity given to the concerned persons to defend themselves. The Committee further notes the observations of the Türkiye Kamu-Sen, indicating that a total of 48 representatives and 37 directors of its affiliate unions were dismissed under the state of emergency decrees.

The Committee notes the Government’s indication that the state of emergency was declared by the Council of Ministers and approved by Parliament on 21 July 2016 following the coup attempt of 15 July. The Government refers to the obligation of loyalty of public servants and indicates that the dismissal and suspension of the public servants deemed to be linked with terrorist organizations and structures, entities or groups operating against the national security, is conducted in accordance with the law and the decrees with the force of law. The Government emphasizes that as the coup attempt posed a serious and actual threat to the democratic constitutional order and the national security, it was necessary to take extraordinary measures to eliminate the threat as a matter of urgency. With regard to the review mechanisms available to the dismissed public servants, the Committee notes the Government’s indication that the State of Emergency Actions Review Commission was set up pursuant to Decree No. 685 dated 2 January 2017, to review the state of emergency decisions. This Commission will review the dismissals of the public servants who claim they are dismissed unfairly by a decree with the force of law. Those dismissed before 17 July 2017 – the date on which the Commission started taking applications – could apply until 14 September, and public servants dismissed after 17 July will have 60 days as of their dismissal date to apply. The decisions of the Commission are open to judicial review in competent administrative courts in Ankara and the last resort will be the European Court of Human Rights. The Government further adds that the public servants who were dismissed by an administrative decision of the public institutions or organizations have the right to apply to the administrative courts. The Committee notes the Government’s indication that there have been 35,000 cases where dismissal decisions were revised or suspension orders lifted as a result of ongoing investigations, but notes that it is not indicated which review mechanisms have been used. The Committee further notes the indications in the reports of the DİSK and Amnesty International, transmitted by the ITUC, with regard to the capacity and resources of the Review Commission. In particular it notes the indication that the Commission has seven members and a two-year mandate, and that, in order to process the caseload in that time limit, it will have to take hundreds of decisions per day.

The Committee notes that a great number of workers in the public sector, including an unknown number of trade union representatives, were dismissed on the basis of emergency decrees issued in July, August and September 2016. While some of these public servants were dismissed or suspended by administrative decisions, which were subject to review in the administrative courts, many others were dismissed directly as a result of the publication of their names in lists annexed to the state of emergency decrees. The dismissals of the latter group were not reviewable in courts and no review mechanisms existed in their regard until an ad hoc Review Commission was established and started receiving applications as of July 2017. The Committee recalls that Article 1 of the Convention requires the effective protection of workers’ representatives against dismissals based on their activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. The Committee further recalls that Paragraph 6 of the Workers’ Representatives Recommendation, 1971 (No. 143), enumerates measures that can be taken to ensure such an effective protection, including a special recourse procedure open to workers’ representatives who consider that their employment has been unjustifiably terminated, and effective remedies in respect of unjustified dismissals. The Committee recalls that there is no provision in the Convention allowing the invocation of a state of emergency to justify exemption from the obligations arising under it, and that the occurrence of circumstances such as an attempted coup does not justify the violation of the right of workers’ representatives to enjoy effective protection against acts prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities. In circumstances of extreme gravity, however, certain guarantees may be temporarily suspended on the condition that any measures affecting the application of the Convention be limited in scope and duration to what is strictly necessary to deal with the situation in question. Once the acute emergency has subsided, measures taken under the state of emergency should be immediately lifted. The Committee notes that the dismissed public servants, including trade union representatives, were definitively banned from public service, and that those who were dismissed as a result of the inclusion of their names in the lists annexed to decrees, did not initially have access to any means of defence or review mechanism. While noting that the situation in Turkey after the coup attempt was one of acute national crisis, the Committee considers that in view of the absence of minimal due process guarantees for the sanctioned workers’ representatives and the ensuing deprival of their right to access public office, the abovementioned decrees do manifestly not allow to guarantee, as provided for in the Convention, that the dismissals of workers’ representatives have not been decided by reason of their status or activities as a workers’ representative or on union membership or participation in union activities. The Committee notes that the Government has since established an ad hoc Commission which is competent to review the dismissals directly based on the state of emergency decrees and will have to deal with all cases in two or even three years, a period of time during which the dismissed trade unionists will remain deprived of their employment and of their right to access public office. While the Committee notes that the sensitive character of certain public service functions, such as the intelligence services and the armed forces, can justify more drastic measures as a matter of urgency, it considers that, with regard to other branches of public service, measures should be taken to ensure the minimal guarantees of due process. While duly noting that Turkey was in a state of acute national crisis following the coup attempt, in view of the renewal of the state of emergency for the fifth time on 16 October 2017, the Committee requests the Government to ensure that workers’ representatives are not dismissed on the basis of their status or activities as a workers’ representative or of their union membership or participation in union activities, in so far as they act in conformity with existing laws. In case of existence of grounds to believe that a workers’ representative has been involved in illegal activities, the Committee requests the Government to ensure that all guarantees of due process are fully afforded. The Committee further requests the Government to provide statistical information on the number of union representatives affected by the dismissals and suspensions based on emergency decrees.

As regards the Review Commission, the Committee notes with concern that it will have to deal with a very significant caseload in two years, which is a relatively short period of time. Recalling that compliance with Article 1 of the Convention requires that workers’ representatives who consider that their employment has been unjustifiably terminated have access to effective recourse procedures, the Committee requests the Government to ensure that the Review Commission is accessible to all dismissed workers’ representatives who desire its review, and that it is endowed with the adequate capacity, resources and time to conduct the review process promptly, impartially and expeditiously. The Committee further requests the Government to ensure that the dismissed workers’ representatives do not bear alone the burden of proving that the dismissals were discriminatory, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was justified based on other grounds. Finally, the Committee requests the Government to provide statistical information on the number of applications lodged and processed in the Review Commission and administrative courts by affected workers’ representatives and to indicate the outcome of those procedures.

Arrest of trade union representatives. The Committee notes the allegations of arrest of trade union representatives both before and after the coup attempt in the statement of Worker members before the Conference Committee, as well as in the latest observations of the ITUC. The Committee observes that these allegations pertain more closely to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and will examine them in its comments on the application of this Convention in 2018.

[The Government is asked to reply in full to the present comments in 2019.]