Rapport définitif - Rapport No. 6, 1953

A. Analysis of the Complaint

1. 814. The complainants allege that trade union rights are violated in Turkey by the legislation in force. The separate allegations may be grouped as follows:
   • Restrictions on the Right to Organise of Certain Categories
2. 815. Article 1 of the Labour Code 1936 and Article 2 of the Trade Unions Act, 1947 prevent non-manual employees from forming trade unions, and the latter Act also does not apply to the owners of small businesses or their employees. The Associations Act, 1938, as amended in 1946, prohibits persons receiving salaries or wages from the State, local administrations or municipalities or institutions attached to the State from forming associations for the occupation in which they are employed. These provisions discriminate against various categories of workers contrary to Article 2 of International Labour Convention No. 87 concerning freedom of association and protection of the right to organise.
   • Restriction of the Right to Form Trade Union Federations
3. 816. The right of trade unions to form federations is strictly limited. To form a federation the Trade Unions Act requires the consent of two-thirds of the members of the unions concerned. The Associations Act limits the amount of dues which a member union may pay to a federation to 120 Turkish pounds a year, and it is alleged that in view of the unions concerned this sum is less than is reasonable or necessary for the operation of the federation.
   • Affiliation with International Organisations.
4. 817. The Trade Unions Act, 1947 makes the affiliation of a trade union with any international organisation dependent on the consent of the Council of Ministers, contrary to Article 5 of Convention No. 87.
   • Governmental Supervision of Trade Unions.
5. 818. Subject to the provisions of Sections 28, 29, 31 and 32 of the Associations Act, the Trade Unions Act provides that every trade union shall be liable to supervision by the Ministry of Labour. In accordance with these provisions in the Associations Act, transactions, registers and accounts of trade unions may be inspected and investigated by the Government. Police authorities may enter the premises of trade unions at any time upon a written order of the competent authority. Representatives of the public authorities may attend all general meetings. In support of this group of allegations the complainants state that according to the report of the I.L.O Mission to Turkey in 1949 " in practice supervision of occupational associations is carried out by the labour inspectors. Since January 1948 the 74 trade unions of workers and of employers have been inspected 132 times. In the industrial centres that inspection is made monthly, and less frequently elsewhere. The labour inspectors attend all meetings of the unions and submit a report of the proceedings to their supervisor, who may call the attention of the competent authorities to any improper activity. Punitive measures, if any, are undertaken by the public prosecutor through the judiciary." The report goes on, state the complainants, to emphasise that one of the principal objects of this inspection is " to keep the authorities advised of the internal activities of the associations ". These provisions and practices are claimed to be contrary to Article 3 of Convention No. 87.
   • Conformity of Trade Union Rules with the Trade Unions Act, 1947
6. 819. The principle that trade unions have the right to draw up their own rules is violated by a provision in the Trade Unions Act, 1947 requiring trade unions and workers' associations to bring their rules into conformity with the Act.
   • Denial of the Right to Strike and Non-participation of Trade Unions in Arbitration Procedure
7. 820. The right to strike does not exist in Turkey. The Labour Code provides for compulsory conciliation and arbitration and the trade unions take no part in the arbitration procedure. Article 7 of the Trade Unions Act, 1947 provides that in the event of incitement by a member of the committee of management or responsible officer of a union to declare a strike or of any attempt at such an act, " the trade union may by order of the court be suspended for a period of from three months to one year or abolished outright, without prejudice to the imposition of any penalties which may be appropriate. The examining magistrate or court may in such cases, at any stage in the examination or trial, order the trade union to suspend its activities ; the Attorney-General of the Republic may also apply to the court or the magistrate for such order.... The members of the committee of management of a trade union which has been abolished by a judgment and any persons implicated in any attempt to commit such acts or in participation in such acts shall be disqualified for membership of a trade union for one year."

B. Analysis of the Government's Reply

1. 821. In its reply dated 12 September 1952 the Government presents the following arguments:
   • Restrictions on the Right to Organise of Certain Categories
2. 822. Although purely non-manual workers are not covered by the Trade Union Act, 1947 or by the definition of " employees " in Article 1 of the Labour Code of 1936 they are not denied trade union rights. Section 70 of the Constitution guarantees the freedom of association of all citizens-employed persons as well as employers. They can form associations for any purpose except for certain matters not within the trade union sphere and, therefore, for the purpose of protecting and promoting common economic and social interests. Nothing in Turkish law prohibits non-manual workers from forming associations under the Civil Code which may have the nature of a trade union. The Trade Unions Act covers only associations formed by manual workers or persons whose work is both manual and intellectual and recognises certain powers of such associations and limits their activities on certain points in the interests of public order. Non-manual workers' associations are outside this Act but they have the character of a trade union within the meaning of Convention No. 87. The Civil Code entitles them to conclude collective agreements. It follows from this that they have power to take part in conciliation and they are not precluded from signing arbitration agreements with employers or from resorting to voluntary arbitration to settle disputes. So far as non-manual employees are concerned, the Government concludes, they do in fact enjoy full freedom of association and the legal difference between their position and that of other workers is purely technical. There is now a tendency for non-manual workers' associations to be brought within the Trade Unions Act, 1947-thus the Journalists Act provides that journalists' trade unions shall be governed by the 1947 Act. Finally, the amendment of the 1947 Act is being considered with a view to broadening the definition of "trade union" therein so as to cover non-manual workers' organisations.
3. 823. Persons in receipt of salaries or wages paid from the Government budget or from budgets of local administrations, municipalities or Government establishments are prohibited, by Section 12 of the Associations Act, from "forming associations relating to the nature and title of occupation in which they are employed". This does not prevent "workers" from establishing organisations having the character of trade unions for protecting their occupational and economic interests. The Government lists 97 organisations of this kind which exist in practice in the State Railways and State Monopolies Administrations and other State enterprises. Civil servants may not form associations relating to the occupations in which they are employed because their status depends on public law and not on contracts of employment. But there is a tendency to repeal Section 12 of the Associations Act and the possible extension of freedom of association to civil servants as well is being considered.
4. 824. The Trade Unions Act, 1947 does not apply to small undertakings, but Section 70 of the Constitution recognises freedom of association for all citizens. In practice there exist many associations formed by employees of small undertakings to protect their common interests. The Government is considering extending the coverage of the Trade Unions Act to such persons.
   • Restriction of the Right to Form Trade Union Federations
5. 825. The requirement of the consent of two-thirds of the members of the unions concerned when a federation is formed is not a restriction but a procedural requirement intended to ensure that the majority shall not be dominated by a minority. The requirement is not contrary to Convention No. 87.
6. 826. Individual unions may not pay more than 120 Turkish pounds a year each to federations, but individual members of unions may pay additional dues to the federations. In practice this dual system of federation revenue is being tried.
   • Affiliation with International Organisations
7. 827. It is true that affiliation of a union with an international organisation requires the consent of the Council of Ministers. This policy is intended to protect freedom of association and the Turkish trade union movement, still in an early stage of development, from the " domineering political and ideological trends " abroad manifested in certain international organisations. The Government states that when the draft of Convention No. 87 was being considered at San Francisco the Brazilian Government proposed an amendment to Article 5 designed to give Governments discretion to require governmental approval before a trade union affiliated with an international organisation, but that this amendment was considered to be redundant and was withdrawn, having regard to the proviso in Article 8 that trade unions shall respect the law of the land. They are not denied the right of international affiliation in Turkey, the procedure implies recognition of the right but its exercise must be in accordance with the law of the land. So far no request by a Turkish union for permission to affiliate with an international organisation has been refused.
   • Governmental Supervision of Trade Unions
8. 828. Governmental supervision of unions is designed exclusively to avoid certain offences, such as abuse of revenues by the officers, and is limited to only a few instances. Control of unions in fact rests with their general assemblies. The right of governmental supervision prescribed by Section 11 of the Trade Unions Act, exercised in accordance with Article 8 of Convention No. 87, gives the Government no occasion to exercise it so as to impair freedom of association. When labour inspectors attend union meetings it is generally at the invitation of the unions with the intention of informing the inspectors of their problems.
   • Conformity of Trade Union Rules with the Trade Unions Act, 1947
9. 829. The Government merely refers to but does not comment on the merits of the allegation that the Trade Unions Act, 1947 requires trade unions to bring their rules into uniformity with the Act.
   • Denial of the Right to Strike and Non-participation of Trade Unions in Arbitration Procedure.
10. 830. In the Government's view, nothing in Convention No. 87 implies any principle that prohibition of strikes should be abolished. However, the Government has prepared a draft Bill recognising the workers' right to strike for non-political purposes " within the framework of compulsory conciliation and voluntary arbitration ". With its enactment the penal provisions concerning strikes contained in the Labour Law and Trade Unions Act " will be automatically repealed ".
11. 831. Regarding the complainants' contention that Turkish unions play no part in arbitration procedure in the case of industrial disputes, the Government thinks it probable that their source of information is the report of the I.L.O Mission to Turkey in 1949, but points out that in 1950, since the date of the report, the law was amended and trade unions have power to be parties in the conciliation and arbitration stages of disputes if they have as members a majority of the workers employed in the undertaking concerned.
12. 832. The Government states in conclusion that its ratification of Convention No. 98 concerning the application of the principles of the right to organise and to bargain collectively shows how much value and significance it attaches to freedom of association. When contemplated legislative reforms are realised freedom of association in Turkey will " find a still larger field of application than at present ".

C. Conclusions

1. 833. Both the complainants and the Government refer explicitly to the provisions of the Freedom of Association and Right to Organise Convention, 1948 (hereafter referred to as Convention No. 87). Although Turkey has not ratified this Convention and is not, therefore, legally bound by its provisions, the Committee, in view of the Government's comparison of its own legislation on many of the points in issue with the terms of the Convention, has considered it appropriate to bear in mind the principles laid down in the Convention when examining the various aspects of this case.
   • Alleged Restrictions on the Right to Organise of Certain Categories
2. 834. The complainants allege that restrictions are placed on the right to organise of non-manual employees, employees of small businesses and State employees respectively.
   • Non-manual Employees and Employees of Small Businesses
3. 835. The complainants allege, without further explanation, that Article 1 of the Labour Code 1936 and Article 2 of the Trade Unions Act, 1947 make it clear that non-manual employees may not form trade unions and that employees of small businesses are also excluded from the 1947 Act. The Government agrees that the 1947 Act relates only to " employees " as defined in Article 1 of the 1936 Code, i.e., workers whose work is wholly manual or partly manual and partly intellectual, and that therefore the Act does not apply to non-manual employees, nor does it apply to employees of small businesses ; but the Government states that exclusion from the 1947 Act does not mean denial of freedom of association and that in fact Section 70 of the Turkish Constitution gives all persons the right to form associations for any purpose except certain purposes defined by law. Section 70 of the Constitution in fact provides that " the right ... to meet and associate and incorporate forms part of the rights and liberties of Turkish citizens ", but Section 79 of the Constitution provides that " the limits imposed on the liberty ... of meeting and associating and of incorporating shall be determined by law ". Purposes for which citizens may not associate are laid down in Section 9 of the Associations Act of 1938, as amended by Act No. 4919 of 1946, which prohibits associations designed to undermine the territorial integrity and political and national unity of the State, associations based on religion or religious sects or orders, associations based on or organised on behalf of a family or religious community or race, secret associations or associations with undisclosed aims, political organisations with regional aims or regionalist names. The Government states that there is nothing in these restrictions to prevent non-manual employees or employees of small businesses exercising their right to associate, guaranteed by Section 70 of the Constitution, to protect and promote common economic and social interests. This right is also recognised under the Associations Act, 1938 and the Civil Code. Under all these laws, states the Government, such employees form associations, in the sense envisaged in the Freedom of Association and Protection of the Right to Organise Convention (No. 87), to protect the rights and interests of their members. These associations have the character of trade unions although not within the definition of " trade union " for the purposes of the Trade Unions Act, 1947.
4. 836. It is necessary to consider whether exclusion from the 1947 Act places non-manual workers and employees of small businesses and their organisations under such comparative disadvantage as to amount to a restriction of their trade union rights.
5. 837. The 1947 Act specifically empowers " trade unions " to enter into collective contracts in the name of their members. However, non-manual workers' associations and associations of employees of small businesses may also make collective agreements by virtue of Sections 316 and 317 of the Civil Code. It would appear, therefore, that such associations enjoy collective bargaining rights.
6. 838. The 1947 Act, however, specifically grants other powers to " trade unions ", notably in connection with arbitration procedure, legal aid and representation of members in cases arising out of collective contracts, establishment of mutual assistance funds, representation on organisations formed under the Workers' Insurance (Administration) Act and other Acts, formation of co-operative societies, etc. The Government implicitly admits that " trade unions " under the 1947 Act do have more powers than have other employees' associations. With regard to arbitration, the Government states that there are " no legal provisions precluding the latter from signing arbitration agreements with their employers and from resorting to machinery of voluntary arbitration in settling, under the Civil Code, industrial disputes which may arise. ". Moreover, they have power to take part in conciliation " because they enjoy the right to enter into collective agreements ". But the right to submit views and offer suggestions to arbitration bodies and to apply to such bodies " in the event of any combination of employers or employers' trade unions against workers seeking employment with a view to reducing wages " is a more concrete right reserved to " trade unions " in the sense of the 1947 Act. It would also appear that the non-guarantee to workers' associations outside the 1947 Act of the other powers of trade unions mentioned above does result in some disadvantage, as the Government states that " the fact that any association which may be formed by non-manual workers [or employees of small businesses] is not entitled to engage in the same activities as the trade unions ... is a matter which concerns the extent to which present labour legislation applies to these persons and not their union rights ".
7. 839. Nevertheless the Government states that the amendment of the Trade Unions Act, 1947 is contemplated with a view to broadening the definition of " trade union " so as to bring all associations formed by both manual and non-manual workers, as well as by employees of small businesses, within the coverage of the Act.
8. 840. To sum up, therefore, it would appear that non-manual workers and employees of small businesses do in fact have the right to form associations of the character of trade unions for the protection of their economic interests and for determining their wages and conditions of employment by means of collective agreements, but that these associations may be at some disadvantage in certain other respects compared with unions already within the 1947 Act ; the amendment of this Act is, however, contemplated.
   • State Employees
9. 841. The complainants allege and the Government admits that Section 12 of the Associations Act, 1938 prohibits persons in receipt of salaries or wages paid from the Government budget, as well as the budgets of local administrations and municipalities or Government establishments, from forming " associations relating to the nature and title of the occupation in which they are employed ".
10. 842. The Government states, however, that this does not prevent any category of workers from establishing organisations having the character of trade unions for the purpose of protecting their occupational and economic interests, and gives the names of 97 organisations so established.
11. 843. Under the existing law, which in their case limits the effect of Section 70 of the Constitution, as permitted by Section 79 of the Constitution, civil servants are not allowed to form associations relating to their occupations because they come within the framework of the public law and are not bound, as are " workers ", by contracts of employment.
12. 844. It would appear, therefore, as if Section 12 of the Associations Act is enforced in fact only in respect of civil servants in the narrower sense, i.e., not including Government manual employees.
13. 845. The Government declares, moreover, that there is " a tendency to repeal the restrictive Section 12 of the Associations Act " and that the present Government's policy is " designed to make a reform extending freedom of association to civil servants as well ".
    • Alleged Restriction of the Right to Form Trade Union Federations.
14. 846. These allegations relate, first, to the legal requirement of the consent of a majority of union members before a federation may be formed and, secondly, to the limit placed on the amount of dues payable by unions to federations.
    • Allegation relating to Members' Consent to Formation of Federations
15. 847. It is alleged by the complainants and agreed by the Government that the consent of two-thirds of the members of the trade unions desiring to form or join a federation is required by law (Section 8, Trade Unions Act, 1947). The complainants allege that this restricts the right of unions to form federations freely, while the Government claims that it is not a restriction but a procedural requirement intended to ensure that the majority shall not be dominated by a minority and is not contrary to Convention No. 87.
16. 848. The normal principle in countries having an established trade union movement is for the Government to leave it to the organisations concerned to draw up the rules for their affiliation to federations. These rules normally provide that the consent of either a simple majority or a fixed proportionate majority of the members is required. The Government is in fact laying down as a legal requirement something which is compatible with what a considerable number of unions in other countries do of their own free will.
17. 849. Bearing in mind that the Turkish trade union movement is, as the Government states, in its early stage of development, the Committee considers that at such a stage this requirement is not unreasonable and does not in practice unduly restrict the right to form federations.
    • Allegation concerning the Financing of Federations
18. 850. The complainants allege and the Government admits that individual unions may not pay more than 120 Turkish pounds each per annum as dues to federations. The Government states that there is no restriction prohibiting the individual members of the unions concerned from paying additional dues to the federation, and that in fact this dual system of contributions is being tried by some federations.
19. 851. While this requirement may appear to be contrary to the generally accepted principle that workers' organisations should have the right to organise their administration and activities and those of the federations which they form, its effect would seem to be mitigated in practice by the permitted expedient of collecting dues from individual members.
    • Allegation concerning Affiliation with International Organisations
20. 852. The complainants allege and the Government agrees that the affiliation of a trade union with an international organisation requires the prior consent of the Council of Ministers. The Government contends that Article 8 of Convention No. 87 requires trade unions, when exercising their rights under the Convention, including the right to affiliate with international workers' organisations, to respect the law of the land, and that it was because of Article 8 that a Brazilian amendment to the Convention which would have made such affiliation dependent on Government approval was withdrawn at the San Francisco Conference, and that consequently the present rule under Turkish law implies not a denial but a recognition of the right to affiliate internationally.
21. 853. It is, however, clear from the report of the Committee on Industrial Relations at the San Francisco Conference that it was not intended that the law of the land should be such as to impair or be so applied as to impair the guarantees provided for in the Convention, including the guarantee of the right of workers' organisations to affiliate with international organisations of workers.
22. 854. The Committee is of the opinion that the legal requirement of the authorisation of the Council of Ministers may be incompatible with the principle of free and voluntary affiliation of trade unions with international organisations, but, taking note of the Government's statement that no request for authorisation has ever been refused, considers that in practice no infringement of trade union rights has occurred. The Committee also notes that discussions are at present taking place between representatives of the Turkish workers' organisations and representatives of the I.C.F.T.U with a view to possible affiliation with that international workers' organisation.
    • Allegation concerning Governmental Supervision of Trade Unions
23. 855. The complainants state that the Government admits that the right of the Government to supervise trade unions depends on Section 11 of the Trade Unions Act, 1947, which provides Subject to the provisions of Sections 28, 29, 31 and 32 of the Associations Act, every trade union shall be liable to supervision by the Ministry of Labour.
24. 856. These provisions of the Associations Act, 1938, are as follows:
    • 28. Transactions, registers and accounts of associations may be inspected and investigated at any time by the local Government.
    • 29. The police authorities are authorised to enter at any time the headquarters and other premises of associations, provided that they carry an order in writing issued to that effect by the highest administrative authority of the locality ; the police are bound to produce such orders on demand.
    • ......................................................................................................................................................
    • 31. The local Government may send a Government commissary to the general meetings of associations whenever it considers this necessary.
    • 32. The implementation of the decision of dissolution of an association shall be carried out under the supervision of a Government commissary.
25. 857. Both the complainants and the Government refer specifically to Convention No. 87. While the complainants claim that these provisions are contrary to the principle, embodied in Article 3 of Convention No 87, that workers' organisations should have the right to organise their administration and activities and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, the Government states that supervision is designed exclusively to avoid certain offences, such as abuse of revenues by officers, and limited to few instances, and refers to the provision in Article 8 of Convention No 87 that trade unions are bound to respect the law of the land, declaring that the Government has no opportunity to exercise its powers so as to impair freedom of association. The Government adds that labour inspectors generally attend meetings at the invitation of the unions themselves.
26. 858. Bearing in mind the principle that workers' organisations should have the right to organise their administration and activities, the Committee considers that the exercise of governmental supervision in accordance with the above sections of the Associations Act might impair the enjoyment of their trade union rights by the organisations concerned. The complainants give no instances of the application of any of these sections except to state that according to the report of the I.L.O Mission to Turkey in 1949, 74 workers' and employers' organisations were inspected by labour inspectors within a period of about 12 months from January 1948 to the date of the visit of the Mission. The Government states that in practice supervision is exercised only in a few instances and solely to prevent certain offences such as misuse of revenues. Finally, with regard to the one point which the complainants examine in detail, the Government claims that labour inspectors generally attend union meetings at the invitation of the unions themselves.
27. 859. On the evidence furnished, the Committee considers that the Government, in practice, has applied the relevant sections of the Associations Act only to such a degree as to ensure that certain offences such as abuse of funds should not take place while the trade union movement was in its early stages of development and not in such a manner as to restrict in practice the exercise of trade union rights.
    • Allegation concerning the Bringing of Trade Union Rules into Conformity with the Trade Unions Act, 1947
28. 860. The complainants state that the requirement in the 1947 Act that trade unions must bring their rules into conformity with the Act constitutes an infringement of the principle that unions should be free to draw up their Constitutions and rules. They give no details as to how this requirement may operate against the freedom of the trade unions and the Government makes no detailed observations concerning the allegation.
29. 861. In these circumstances the Committee considers that the allegation is too vague to permit of an examination of this part of the case on its merits, and therefore recommends the Governing Body to decide that this aspect of the case does not call for further examination.
    • Allegations concerning Denial of the Right to Strike and Non-participation of Trade Unions in Arbitration Procedure
30. 862. The complainants allege that the right to strike does not exist, that incitement to strike by union officials may involve both individual penalties and suspension or dissolution of the union and that the trade unions take no part in the compulsory conciliation and arbitration procedure.
31. 863. The Government contends that nothing in Convention No. 87 implies a principle that strikes may not be prohibited. However, the Government states that a Bill has been prepared to recognise the right to strike for non-political purposes within the framework of compulsory conciliation but voluntary arbitration, on the enactment of which the strike provisions in the Labour Law and Trade Unions Act will be repealed, and that since 1950 an amendment to the law has given trade unions representing a majority of the workers concerned the right to be parties in the conciliation and arbitration of disputes.
32. 864. While, admittedly, Convention No. 87 does not deal with the right to strike, the Committee considers that the right to strike is generally accorded to workers and their organisations as an integral part of their right to defend their collective economic and social interests, although partial and temporary restrictions are frequently placed on its exercise pending recourse to established conciliation and arbitration procedures, to which the organisations are parties at all stages.
33. 865. The Government has made it clear that the workers' organisations representing a majority of the workers concerned are now parties to conciliation and arbitration procedure and that legislation is being enacted which will permit the right to strike for non-political purposes " within the framework of compulsory conciliation and voluntary arbitration ".
34. 866. Regarding the case as a whole, it appears to the Committee on considering the analysis that great progress has been made in Turkey in recent years in the whole field of industrial relations and that the situation has advanced to a more progressive stage than might be at first apparent from a perusal of the existing legal provisions dealing with the various aspects of that field. The Committee notes that while the present Trade Unions Act does not deal with the question of the trade union rights of certain categories these categories already possess substantial rights by virtue of general legislation, and that it is the expressed intention of the Government to extend the coverage of the Trade Unions Act to most categories not already governed by it and by this and other contemplated legislative amendments, such as that of the law dealing with conciliation, arbitration and strikes, to liberalise the position further in the future. The Committee notes, further, that the legal requirements as to the consent of two-thirds of the members of an organisation to its affiliation to a federation and as to the financing of federations do not appear in practice to have placed serious obstacles in the way of the formation or functioning of federations, and that the powers of supervision of trade unions given to the authorities under the Associations Act, 1938 do not appear to be exercised in practice in such a manner as to restrict the exercise of trade union rights but only the minimum degree which the Government has felt necessary to ensure that certain offences such as the abuse of funds shall not take place.