Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

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 from the Confederation of Public Employees Trade Unions (KESK), received on 31 August 2020 and the Government’s reply thereto received on 4 November 2020. Furthermore, the Committee notes the observations of the Confederation of Turkish Trade Unions (TÜRK-IS) transmitted by the Government on 3 November 2020.

The Committee also notes the observations of the Turkish Confederation of Employer Associations (TİSK) received on 31 August 2017, which were supported by the International Organisation of Employers (IOE) and the Government’s reply thereto. The Committee also notes the observations of Education International (EI) and the Education and Science Workers’ Union of Turkey (EGITIM SEN) received on 1 September 2017 and the Government’s reply thereto. It further notes the observations of the Turkish Confederation of Public Workers Associations (Türkiye Kamu-Sen) and the TÜRK-IS which were attached to the Government’s report.

Articles 1 and 4 of the Convention. Discrimination based on political opinion. Activities prejudicial to the security of the State. In its previous comments, the Committee noted with deep regret that the Government had not provided any 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. Noting that it did not provide the required information, the Committee firmly urges 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, as well as on all the cases brought before the courts against them, indicating the charges brought and the outcome.

Massive dismissals in the public sector: Civil servants, teachers and members of the judiciary. The Committee notes the observations of EGITIM SEN alleging the arbitrary dismissals of hundreds of its members (1,546 as of August 2017) from their teaching positions without any proof and without any court hearing; more than 300 were dismissed from their university positions because they had been critical of the Government and signed a petition in this regard. It also notes that, according to Türkiye Kamu-Sen, in 2015, 75,000 head teachers lost their jobs overnight (50,000 of these were members of EGITIM SEN). The Committee notes the Government’s indication in its report that the dismissals of civil servants, members of the judiciary and teachers took place after the coup attempt in July 2016, “on the grounds of membership, affiliation or connection with a terrorist organization”. The Government adds that under the Penal Code and the Public Servants Law (Law No. 657), public officials who have been under investigation on charges of membership of a terrorist organization or an offense against constitutional order can be suspended from their posts, because “their conducting public duties constitutes a major threat to the security of public services, causing the disruption of it”. The Government emphasizes that the criteria of loyalty to the State has to be met by civil servants. It also indicates that it has adopted several state of emergency decrees, including Decree-Law No. 667 on measures taken within the scope of state of emergency stating that “members of the judiciary, including the Constitutional Court, and all State officials shall be dismissed from the profession or the public service, if they are considered to have an affiliation, membership, cohesion or connection to terrorist organizations or to groups, formations or structures determined by the National Security Council to be engaged in activities against the national security of the State”. Members of the judiciary who have been expelled from the profession can file a complaint before the Council of State. The Government adds that, pursuant to Emergency Decree-Law No. 6851, a commission to review the actions taken under the scope of state of emergency (hereafter the Inquiry Commission) has been established for a term of two years to assess and decide upon applications lodged by public servants, through the governorates or the last institution in which they were employed, against expulsion from their profession, cancellation of fellowship, dissolution of organizations, or the reduction in ranks in the case of retired personnel. According to the Government, the examination of complaints takes place on the basis of the documents that are in the file, and the decision of the Inquiry Commission is subject to review by the courts. In this regard, the Committee notes the KESK’s allegations that, although 4 years passed, as of 3 July 2020 there were still 18,100 cases pending in front of the Inquiry Commission. It further alleges that: (1) there is no transparent mechanism through which public officers, who have no idea of the reason for their dismissal, can challenge any so called evidence against them; (2) there is no clear criteria that the Inquiry Commission adopted in its procedure; and (3) the selection of cases to be examined is arbitrary since there is no chronological or other order. The KESK also indicates that, according to a press statement issued by the Inquiry Commission, 96,000 of the applications were rejected and 12,200 public officers were reinstated, which shows that 89 per cent of the applications were rejected. It further underlines that even if public officers whose applications are rejected have a chance to apply to administrative courts, it will take several years.

The Committee notes from the Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the impact of the state of emergency on human rights in Turkey (January–December 2017), that “following the coup attempt [July 2016] at least 152,000 civil servants were dismissed, and some were also arrested, for alleged connections with the coup, including 107,944 individuals named in lists attached to emergency decrees” and over “4,200 judges and prosecutors were dismissed”. The OHCHR’s report also indicates that “an additional 22,474 people lost their jobs due to closure of private institutions, such as foundations, trade unions and media outlets” (paragraph 8). The Committee notes that the OHCHR observed that “dismissals were accompanied by additional sanctions applied to physical persons dismissed by decrees or through procedures established by decrees”, including a lifelong ban from working in the public sector and in private security companies and the systematic confiscation of assets and the cancellation of passports (paragraph 68). According to the OHCHR’s report, “[d]ismissed people lost their income and social benefits, including access to medical insurance and retirement benefits”. Finally, the Committee notes the concern expressed by the OHCHR that “the stigma of having been assessed as having links with a terrorist organization could compromise people’s opportunities to find employment” (paragraph 70).

The Committee also refers the Government to its 2018 observation, under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), on the massive dismissals that took place in the public sector under the state of emergency decrees, and to the discussion that took place in the Conference Committee on the Application of Standards (CAS) in June 2019 on the application by Turkey of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and to its current observation under Convention No. 98.

The Committee recalls that, under Article 1(1)(a) of the Convention, discrimination on the basis of political opinion is prohibited in employment and occupation. It also recalls that in paragraph 805 of its General Survey of 2012 on the fundamental Conventions, the Committee indicated that protection against discrimination on the basis of political opinion implies protection in respect of the activities of expressing or demonstrating opposition to established political principles and opinions and in respect of political affiliation. The Convention allows for exceptions, including measures warranted by the security of the State under Article 4, which are not deemed to be discrimination and must be strictly interpreted to avoid any undue limitations on the protection against discrimination. The Committee also recalls that it indicated in paragraphs 833–835 of its General Survey of 2012 that such measures “must affect an individual on account of activities he or she is justifiably suspected or proven to have undertaken” and they “become discriminatory when taken simply by reason of membership of a particular group or community”. As “the measures refer to activities qualifiable as prejudicial to the security of the State[,] [t]he mere expression of opinions or religious, philosophical or political beliefs is not a sufficient basis for the application of the exception. Persons engaging in activities expressing or demonstrating opposition to established political principles by non-violent means are not excluded from the protection of the Convention by virtue of Article 4. […] [A]ll measures of state security should be sufficiently well defined and precise to ensure that they do not become instruments of discrimination on the basis of any ground prescribed in the Convention. Provisions coached in broad terms, such as ‘lack of loyalty’, ‘the public interest’ or ‘anti-democratic behaviour’ or ‘harm to society’ must be closely examined in the light of the bearing which the activities concerned may have on the actual performance of the job, tasks or occupation of the person concerned. Otherwise, such measures are likely to entail distinctions and exclusions based on political opinion […] contrary to the Convention.” In addition, the Committee recalls that “the legitimate application of this exception must respect the right of the person affected by the measures ‘to appeal to a competent body established in accordance with national practice’”. The Committee also recalls that “it is important that the appeals body be separate from the administrative or governmental authority and offer a guarantee of objectivity and independence” and “be competent to hear the reasons for the measures taken against the appellant and to afford him or her the opportunity to present his or her case in full”.

The Committee urges the Government to take appropriate steps to ensure that the requirements of the Convention are fully adhered to, taking into account the various criteria explained above. The Committee asks the Government to continue to provide information on the number of dismissals in the public sector, including teachers, that have taken place for reasons linked to the security of the State. The Committee further asks the Government to continue to provide information on the total number of appeals reviewed by the Inquiry Commission or by the courts, and their outcome, and to indicate whether in the course of the proceedings dismissed employees have the right to present their cases in person or through a representative. The Committee asks the Government to provide its comments regarding the KESK’s allegations on the length of judicial reviews. The Committee further asks the Government to provide information on the number of complaints brought by dismissed employees alleging discrimination on the ground of political opinion.

Recruitment in the public sector. The Committee notes the Government’s indications regarding the recruitment of personnel in the public sector, in reply to its request regarding the previous allegations made by the KESK regarding discrimination against civil servants (the recording in personnel files of inappropriate data, discriminatory use of promotion and appointments, and of the rewards system) and to the lack of adequate sanctions in the event of discrimination. The Committee notes that the Government indicates that, for a first appointment or a reappointment in the public sector, a “security investigation” and an “archive screening” have to be conducted in strict confidentiality at every stage. According to the Government, it is therefore not possible to give information to individuals or institutions other than the institution requesting the investigation. The Government adds that recruitment in public institutions and organizations is made through a merit-based central examination and placement procedure. The Committee notes from the observations made by Türkiye Kamu-Sen that appointment and promotion practices by way of oral examination or interviews work in favour of unions close to the Government and subject members of other unions to discrimination. The union adds that “while it has been recorded in court judgments […] that the interviews were not a fair means of evaluation”, “the Government still does not implement these court decisions and continues to discriminate”. In addition, the Committee notes that the KESK, in its 2020 observations, reiterates its concerns about the impartiality, neutrality and independency of the majority of those who serve in committees in charge of making decisions about new public officers’ suitability to the public sector and alleges that oral exams are used to select those who are loyal to the Government rather than eligible for public services. The organization alleges that there is a broad and vague interpretation of the Penal Code and the Anti-Terrorism Act as regards the recruitment of new public officers and working life of public officers. The KESK also alleges that Presidential Decree No. 225 published on 25 October 2018 requires that “candidates shall be subjected to a ‘security investigation’ and ‘archive screening’ in a way that covers also family members”. According to the organization, dozens of people were not recruited on the ground that there had been a judicial investigation against them in the past, even if they had been acquitted since. The KESK further states that: (1) the Decree was taken to the Constitutional Court that ruled that it was contrary to articles 13 and 20 of the Constitution and was therefore abolished; and (2) a draft law regulating the same issues would be discussed at the Parliament in October 2020. The Committee notes the Government’s statement in its reply that, further to the annulment of the existing regulation on “security investigation” and “archive screening” by the Constitutional Court, and in line with the Constitutional Court decision, works are under way to submit a new piece of legislation to the Parliament as of October 2020, and the objections put forward by the KESK lack any legal basis. The Committee notes that the Government recalls that, in accordance with article 3(3) titled “Basic principles” of the Law No. 657 on Civil Servants, “the State is to base the entry into public service duties, the progress and promotion within the classes and the termination of duty on the merit system and to ensure that the civil servants have security in the implementation of this system with equal opportunities” and that entering the public office and promoting to senior management is based on merit. The Committee takes due note of the abolishment of Presidential Decree No. 225 published on 25 October 2018 and firmly hopes that the new piece of legislation announced by KESK and the Government will ensure that recruitment in the public sector is taking place without discrimination based on the grounds set out in the Convention, in particular political opinion. The Committee asks the Government to provide information on any development in this regard in law and in practice, including any procedure of “security investigation” and “archive screening” put in place by the future regulation. The Committee also asks the Government to ensure that persons alleging discrimination in recruitment and selection in the public sector have effective access to adequate procedures to review their case and to appropriate remedies. The Government is asked to provide information on any existing procedure allowing for an appeal against a negative decision in the recruitment process, the number and outcome of such appeals, and the effective implementation of court decisions relating to discrimination in recruitment and selection in the public sector.

Articles 1 and 2. Protection of workers against discrimination in recruitment. Legislation. 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 notes with satisfaction the adoption, in April 2016, of the Law on the Human Rights and Equality Institution of Turkey (Law No. 6701) which, in article 6, prohibits discrimination on the basis of gender, race, colour, language, religion, faith, sect, philosophical or political opinion, ethnic origin, wealth, birth, civil status, medical condition, disability or age, during the application, recruitment and selection processes, in employment and for termination of employment, and with respect to job advertisements, working conditions, vocational guidance, access to vocational training, retraining, on-the-job training, “social interests and similar subjects”. According to article 6(3) of the Law, it is prohibited for employers or their representatives to reject a job application due to pregnancy, motherhood or childcare. The Committee notes that labour contracts or contracts for services which are excluded from the scope of labour legislation, and self-employment are covered by the provisions of article 6 of Law No. 6701. The Committee also welcomes the inclusion of employment in public institutions and organizations within the scope of this article. The Committee asks the Government to provide information on the application in practice of article 6 of Law No. 6701 and, in particular, to indicate if any complaints by workers or any labour inspection reports were made under article 6, and their outcome.

Article 2. Non-discrimination. Equality between men and women. Vocational education and training and public and private employment. The Committee recalls that in its previous comments, it underlined the need to promote the access of women to adequate education and vocational training and to increase their participation in the labour force and in the public sector. With respect to the employment of women in the public service, the Committee notes the Government’s indication that their participation has substantially increased due to temporary arrangements regarding working time and unpaid leave made available to mothers and fathers. As regards the private sector, it further notes that, according to the labour force statistics of February 2019, the labour force participation rate for women was 34 per cent (against 33.3 per cent in February 2018). The Committee welcomes the detailed information provided by the Government in its report, on the numerous programmes, projects, measures and activities developed and implemented with a view to promoting gender equality, including awareness-raising initiatives to fight against gender stereotypes and violence against women, strategies to reconcile work and family responsibilities such as the development of kindergartens and the provision of support for child care, vocational training programmes for women in non-traditional fields, and on-the job and entrepreneurship training programmes. The Committee notes that the Government also mentions the adoption of a Women’s Employment Action Plan (2016–18) within the framework of the programme entitled “More and better jobs for women: Women’s empowerment through decent work in Turkey” implemented jointly by the ILO and the Turkish Employment Agency (ISKUR) and financed by the Swedish International Development Agency (SIDA). The Government adds that the Action Plan aims to increase women’s vocational skills and their means of access to the labour market and that 81 Provincial Gender Representatives, who received gender training, were appointed to monitor and report on its implementation together with the staff of ISKUR. The Committee also notes from the observations made by the TİSK that, according to the labour statistics, “one of the issues that needs to be addressed in order to facilitate the access of women to the labour market is education”. The TİSK adds that, given the large number of women employed in the informal economy – in particular in agriculture – “priority must be given to the policies which will decrease undocumented work or informal employment of working women”. The TİSK further points out that one of the main obstacles for women entering employment and on progressing in their career is the difficulties they face in reconciling work and domestic duties and that, despite the efforts made, there are not enough childcare institutions. The Committee notes the TÜRK-IS’s allegations that, despite all the legal measures and policies put in place against discrimination, examples of differential treatments are still reported in practice. According to the TÜRK-IS, while the rights of pregnant women are regulated by law, women face the threat of dismissal from their employers when they fall pregnant or when they request to use lawful maternity leave, in particular in the private sector. The organization also raises concern regarding the new post-natal leave that would directly turn the way women work into long-term low paid jobs or part time working. In addition, the Committee notes the allegations by the KESK that equality between men and women is still a problem in the public sector since current policies and practices lead to discrimination and the Government’s policies affect women very deeply, with an objective to keep them away from public, social, economic and professional life. It further alleges that the participation rate of women in the public sector is 38 per cent while it is 62 per cent for men, and women are channelized into some positions and sectors, such as health, social services and education that are considered suitable for women. Moreover, being a woman public officer means there are certain social and professional barriers and, as a result, only 8 per cent of higher and managerial posts are held by women. There are about 650,000 women teachers but only 25 women out of 1,299 senior managers in the Ministry of Education (1.9 per cent). The KESK adds that, according to official figures, the participation rate of women in the labour force was 29.7 per cent in May 2020 while it was 34.4 per cent one year before, corresponding to 1.3 million fewer women. According to the KESK, although it is a fact that there was a decrease in the employment rate due to the COVID-19 pandemic, this deeply affects women. The Committee notes the Government’s statement in its reply that it is of great importance that women become individually and socially stronger, have more qualified education opportunities, enhancing their efficiency in decision-making mechanisms, increasing their employment level by facilitating their entry into the labour market, providing their social security, increasing the number of women entrepreneurs and creating more added value in the economy. The Government adds that empowering women in the labour market and increasing their participation in working life are among its main priorities and recalls the investments made in the private sector in crèches, day-care centres and pre-school education. The Committee welcomes the information provided by the Government regarding the quantitative targets established in the “Women section” of the 11th Development Plan (2019–2023). Through the provision of guidance services and subsidies to female entrepreneurs, the development of digital environments and cooperatives and the promotion of training in non-traditional fields, it is expected to increase: (1) the female labour force participation rate to 38.5 per cent; (2) the female employment rate to 34 per cent; (3) the rate of women in self-employment to 20 per cent; and (4) the rate of women employers to 10 per cent. The Committee also welcomes the adoption of the “Strategy Paper and Action Plan on Women’s Empowerment” to cover the period 2018–2023, which is built on the following five elements: awareness of women of their own value; the right to have options and to choose among them; the right to access opportunities and resources; the right to have the power to control their own lives inside and outside the home; and their ability to influence the direction of social change in order to create a fairer social and economic order at national and international level. The Committee notes that it is envisaged in this framework to conduct an assessment of the legislation on the labour market in a way to ensure women’s empowerment and making necessary improvements for effective implementation as well as studies for the employment of women in professions that are not limited to traditional employment areas and more generally various measures to tackle occupational segregation. The Government also emphasizes the improvement of the female labour force participation and the female employment rates between 2002 and 2019 (respectively from 27.9 to 34.4 per cent and from 25.3 to 28.7 per cent). The Committee notes that, in its concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern about “the persistence of deep-rooted discriminatory stereotypes concerning the roles and responsibilities of women and men in the family and in society”, which “overemphasize the traditional role of women as mothers and wives, thereby undermining women’s social status, autonomy, educational opportunities and professional careers”. The CEDAW also noted with concern that “patriarchal attitudes are on the rise within State authorities and society” and expressed concern “about the high dropout rate and under-representation among girls and women in vocational training and higher education, in particular in deprived rural areas and refugee communities” (CEDAW/C/TUR/CO/7, 25 July 2016, paragraphs 28 and 43). Noting the encouraging developments regarding the promotion of gender equality in employment but also the very slow increase in the labour force participation rates of women, the Committee asks the Government to step up its efforts and continue taking specific proactive measures, including within the framework of the “Strategy Paper and Action Plan on Women’s Empowerment” (2018–2023), the 11th Development Plan (2019–2023) and the ILO–ISKUR–SIDA programme, to promote the access of women to adequate education and vocational training and to formal and paid employment, including to higher level positions. The Committee also asks the Government to provide information on the implementation of the quantitative targets in the “Women section” of the 11th Development Plan and the results of any assessment of the legislative framework concerning women’s employment and the conclusions of any studies conducted in the field of gender occupational segregation. The Committee asks the Government to adopt proactive measures to actively combat persistent gender stereotypes and stereotypical assumptions regarding women’s aspirations, preferences and capabilities and “suitability” for certain jobs or their interest or availability for full-time jobs and their role in society. The Committee also asks the Government to continue to take steps to enable both men and women to reconcile work and family responsibilities, including through the development of childcare and family facilities and support and by the removal of administrative obstacles to which the Government refers in this regard. Finally, the Committee asks the Government to provide its comments in reply to the TÜRK-IS’ allegations regarding dismissal or threats of dismissal of pregnant women because of their pregnancy or taking full maternity leave.

Dress code. The Committee welcomes the Government’s indication that further to the amendment in 2013 and 2016 of the Regulations on the dress code of personnel employed in public institutions, security organizations and armed forces, women working in these institutions and organizations are now allowed to work with a headscarf. The Committee hopes that the Government will continue to ensure that all persons working in public institutions, security organizations and armed forces continue to enjoy protection against religious discrimination on the basis of a dress code.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.