Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 279, Novembre 1991

1. 423. This complaint is contained in a communication from the Education and Science Workers' Union (EGIT-SEN) dated 13 April 1991. The Government replied in a communication dated 30 September 1991.
2. 424. Turkey has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 425. In its communication of 13 April 1991, the Education and Science Workers' Union (EGIT-SEN) alleges that the Turkish Government is denying teachers the right to establish trade union organisations and engage in trade union activities. Secondly, the EGIT-SEN alleges that teachers have suffered verbal harassment from the Turkish authorities and that a variety of punitive measures have been taken against them.
2. 426. As regards the first allegation, the EGIT-SEN states that on 30 November 1990, its central committee which comprises 333 founder members, submitted the documents required by law to the Governor of Istanbul, with a view to setting itself up as a trade union. The Governor noted this request as No. 2946, immediately approved the establishment of the EGIT-SEN and sent off the receipt for the documents submitted. The very day the EGIT-SEN was set up, its president and general secretary were remanded in custody for two days after an order was issued by the Governor of Istanbul. The following day, on 14 November 1990, the authorities tried to force the EGIT-SEN administrators to accept the withdrawal of official recognition, which it refused to do and then sought legal help from the union's lawyers. A trial is still pending. Following these incidents, the EGIT-SEN continued its membership campaign and on 18 May 1991, its membership stood at more than 10,000. The EGIT-SEN has been refused authorisation to publish an official monthly magazine. The Governor of Istanbul turned down the request from the EGIT-SEN, pointing out that it was not an established trade union. Despite this, two editions of the magazine have been published. On 28 February 1991, the Governor of Domestic Affairs ordered the closure of the EGIT-SEN's central office (Order No. 052 334). On 18 March 1991, the Governor of Istanbul ordered that the office be sealed.
3. 427. In addition to the Government's refusal to recognise the EGIT-SEN's right to establish a trade union organisation or to take part in collective negotiations without prior authorisation, the complainant also alleges that the teachers, members of the EGIT-SEN, have been subjected to detention, interrogation, verbal harassment, arbitrary treatment by the police, wage cuts and other punitive measures by the Turkish authorities, in particular the Ministry of Education. The EGIT-SEN provides a list of persons who have been so treated: Barbaros Aksu, teacher and founder member of the EGIT-SEN, arrested in Kars on 3 January 1991 and detained for two days (trial pending); Selanattin Sen, teacher and founder member, arrested in Kars on 2 January 1991 and detained for two days (trial pending); Hasan Kaya, teacher and founder member, arrested in Kars on 2 January 1991 and detained for two days (trial pending); Zeynel Yildiz, teacher and founder member, arrested in Kars-Igdir on 2 January 1991 and detained for two days (trial pending); Saim Gultekin, teacher and founder member, arrested in Corum on 25 December 1990 and detained for two days; Osman Ilkme, teacher and founder member, arrested in Corum on 25 December 1990 and detained for two days; Mehmet Umal, teacher and founder member, arrested in Corum on 25 December 1990 and detained for two days; Sait, teacher and founder member, arrested in Corum on 25 December 1990 and detained for two days; Yuksel Serej, teacher and founder member, arrested on 9 January 1991 in Alasekir and freed the same day; Omer Osmanogullari, teacher and founder member, arrested at Marisa on 11 December 1990. The EGIT-SEN also includes on its list the teachers and founder members Ali Haydar Polat, Fesih Celik and Abdarrahman Onen.
4. 428. The complainant explains that the Government of Turkey is violating the provisions of Conventions Nos. 87 and 98. The complainant concludes by saying that as employees in the education and science sectors, members of the EGIT-SEN have the right to enjoy the protection afforded by these and other similar European conventions.

B. The Government's reply

1. 429. In its reply, the Government states that teachers are employed both in the public and the private sectors in Turkey. Those in the public sector are, for the most part, public officials. Their terms and conditions of employment are governed by law and do not form part of a labour contract. Given that they exercise and represent state authority to varying degrees, there is no distinction between public officials who are engaged in the administration of the State and those who are not, in whatever branch they may be employed. Another category of teachers working in the public sector is made up of contract employees working for an education department belonging to a public enterprise, and their status is similar to that of public officials. In the private sector, teachers are employed in private educational institutions.
2. 430. The Government points out that no mention is made of public officials or contract employees, including teachers in state schools or state enterprises, in either articles 51, 53 and 54 of the Constitution which enshrine the principle of the right of association, or the first sections of Acts Nos. 2821 and 2822 of 1983 on trade unions, collective agreements, strikes and lockouts, guarantees covering the right to establish and join trade unions, engage in collective bargaining and go on strike for employers and workers in the public sector and state enterprises. In addition, section 27 of the Act on public officials (Act No. 657) denies all the afore-mentioned categories of staff the right to strike. Section 21(5) of Act No. 2821 on trade unions, forbids teachers in the private sector to establish or join a workers' trade union organisation.
3. 431. The Government informs the Committee that this legislation forms the legal basis for the refusal of the Governors of Ankara and Istanbul to follow through the official submission made by the EGIT-SEN of the documents required by law, with a view to setting up a trade union for education and science workers. Following the EGIT-SEN's insistence on the documents being submitted to the two Governors by registered post, the Governor of Ankara decided to hand the case over to the Public Prosecutor, who initiated proceedings against the EGIT-SEN before Ankara's second labour tribunal which rejected the Prosecutor's complaint. The Governor of Ankara and the Ministry of Employment and Social Security then lodged an appeal with the Supreme Court of Appeal which overruled the decision made by Ankara's labour tribunal and sent the case to the civil courts on the grounds that teachers are public officials who do not have the right to establish or join trade union organisations (Act No. 2821 on trade unions) and also on the grounds that labour tribunals are not competent to make rulings on cases which are outside the Act on trade unions.
4. 432. The Government concludes that Turkish legislation does conform with the relevant international standards and that the measures taken by the Ministry of Education against the EGIT-SEN are legislative rather than purely administrative, and have been decided in accordance with the decisions made by the courts.
5. 433. The Government comments on the general policy of Turkey concerning freedom of association. It lays particular emphasis on the independence of the judiciary in Turkey and on the fact that the legislative and administrative powers abide by decisions made by the courts. As regards policy on freedom of association, the Government points out that the Turkish authorities have no intention of restricting trade union rights. They are making every effort to guarantee the vital needs of society, while taking into account the concept of "national circumstances" recognised by the International Labour Organisation. The Government confirms that the national education sector constitutes such a vital need, given the role it plays in the country's economic and social development, making use of human resources in the shape of the young Turkish population. With a view to increasing the efficiency of the national labour system, the Turkish authorities were forced to broaden the domain of freedoms, and especially freedom of association, in line with the country's economic and social development.
6. 434. The Government states that in this context, a high-level tripartite meeting took place in May 1991, which resulted in three decisions: to establish a committee with a mandate to finalise various bills relating to working conditions; to organise regular tripartite meetings which would include participation from workers' and employers' confederations; and to set up permanent machinery to develop social dialogue and settle current social problems in a peaceful manner.

C. The Committee's conclusions

1. 435. The Committee notes that the allegations focus on four areas: (1) denial of the right of association to teachers in the private sector and teachers with the status of public officials or contract employees; (2) denial of the right of collective bargaining for these three categories of workers; (3) anti-union behaviour on the part of the authorities against teacher members of the EGIT-SEN, shown through various punitive measures including arrests and detentions; and (4) an attack on the part of the authorities on the right of the EGIT-SEN to organise its trade union activities.
2. 436. As regards the first aspect of the complaint, the Committee notes that under article 51 of the Turkish Constitution, only "workers" enjoy the right to establish trade union organisations to defend and develop social and economic rights and defend the interests of their members, thus excluding public officials and persons working in public enterprises with the status of contract employee from this constitutional right. The Government does not deny this allegation and, in its reply, implies that the categories of public officials mentioned do not have the right to set up or join trade union organisations. The Committee also understands from the information sent by the Government, that teachers in the private sector are outside the scope of Act No. 2821 on trade unions, section 21(5) of which states that it is forbidden for teaching staff to set up or join a workers' or employers' trade union. Under these circumstances, the Committee recalls the importance it attaches to the principle of freedom of association according to which all workers, without distinction whatsoever and regardless of their legal status, including public officials and contract employees, have the right to set up and join organisations of their own choosing (Digest, op. cit., para. 215). The Committee therefore requests the Government to amend the provisions of current legislation which contravene this principle in order to guarantee teachers in both the public and private sectors the right to establish and join organisations of their own choosing, and to inform the Committee of developments in this respect.
3. 437. As regards the second aspect of the allegations, the Committee, in the light of the information available to it, notes that teachers having the status of public servant or contract employee and teachers in the private sector are excluded from the scope of collective bargaining since they are not "workers" within the meaning of section 1 of Act No. 2822 of 5 May 1983, and that teachers in the private sector do not have the right to establish or join unions of their own choosing. The Committee firstly draws the Government's attention to the fact that no provision of Convention No. 98 authorises the exclusion of persons with the status of contract employees from its scope. As regards teachers with the status of public official, the Committee recalls that Convention No. 98 (Article 6) permits the exclusion of public officials engaged in the administration of the State. However, the Committee points out, as did the Committee of Experts on the Application of Conventions and Recommendations, that whilst admitting that the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector, who do not act as agents of the public authority (even though they may be granted a status identical with that of public officials engaged in the administration of the State) is contrary to the requirements of the Convention. Therefore, a distinction must be made between civil servants employed in various capacities in government ministries or comparable bodies and other persons employed by the Government, by public undertakings or by independent public corporations (Digest, op. cit., para. 598). With regard to teachers in the private sector, the Committee notes, from the provisions of section 21(5) of the Act on trade unions of 5 May 1983 (the ban on establishing or joining a union), that this category of teachers is also denied the right to bargain collectively. The Committee requests the Government to amend the provisions of the legislation in force and, in particular, those of Act No. 2822 on collective labour agreements, strikes and lockouts of 5 May 1983, with a view to granting teachers in the public sector, whether they have the status of public official or contract employee, and teachers in the private sector, the right to collective bargaining in accordance with Article 4 of Convention No. 98.
4. 438. As regards the third allegation, under which the Turkish authorities allegedly engaged in anti-union behaviour against the EGIT-SEN, such as arresting and detaining some of its founding members, the Committee recalls that the arrest of trade union leaders against whom no criminal charges are laid involves restrictions on the exercise of trade union rights (Digest, op. cit., para. 89). The Committee stresses that the arrest and detention of trade unionists, even for reasons of internal security, may constitute a serious interference with trade union rights, unless attended by appropriate judicial safeguards; it requests the Government to inform it of the charges laid against the members of the EGIT-SEN arrested and detained during December 1990 and January 1991 and of the outcome of the pending trials. The Committee also calls upon the Government to indicate whether the members of the EGIT-SEN, Ali Haydar Polat, Fesih Celik, Abdarrahman Onen and Omer Osmanogullari have been freed following their arrest and detention and whether proceedings have been instituted with a view to shedding light on these cases. As regards the allegations concerning other punitive measures taken against the members of the EGIT-SEN, the Committee emphasises the importance it attaches to the right of trade unionists, like all other persons, to enjoy the guarantees afforded by due process of law in accordance with the principles enunciated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights. (Digest, op. cit., para. 82.)
5. 439. As regards the final allegation according to which the publication of an official magazine has been prohibited and the central office of the EGIT-SEN has been closed and sealed off, the Committee - whilst recalling that under Article 8 of Convention No. 87, workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land, provided that the law of the land does not impair the guarantees provided for in the Convention - has nevertheless expressed the opinion that a free trade union movement can develop only under a regime which guarantees fundamental rights including the right of trade unionists to hold meetings in trade union premises, and freedom of opinion expressed through speech and the press (Digest, op. cit., para. 73). The Committee requests the Government to indicate whether its refusal to allow the publication of an official magazine and its orders to close and seal off the central office have been revoked and, if this is not the case, to take the necessary measures to revoke these impediments to freedom of association.