Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 340, Mars 2006

1297. The United Metalworkers’ Union (BIRLESIK METAL-IS) submitted the complaint in a communication dated 31 May 2004 to which was appended a letter from the complainant organization to the ILO Office in Ankara dated 22 March 2004. The complainant sent additional information in a communication dated 1 June 2005.

1. 1298. The Government provided its observations in a communication dated 30 August 2004 to which a number of documents in Turkish were appended, including observations from the employers’ organization concerned, which is the Turkish Union of Metal Industrialists (MESS). It submitted additional information in communications dated 7 January and 23 September 2005.
2. 1299. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant organization’s allegations

1. Colakoglu Metallurgy enterprise
2. 1300. The complainant organization indicates that there are around 1,000 workers in the Colakoglu Metallurgy enterprise which is located in Gebze. The enterprise is a member of the Turkish Union of Metal Industrialists (MESS). At the time the events challenged in the complaint took place, the enterprise was covered by a collective labour agreement concluded between MESS and the complainant organization; in fact, collective agreements had been signed between those two organizations for a number of years.
3. 1301. The complainant organization contends that during the night of 11 March 2004, workers who had just completed the night shift were stopped on their way to get the bus to go home because of the closure of the plant’s gates. The employer asked these workers to gather in the dining hall inside the factory. In the hall, the fifth public notary of Gebze, invited by management, with representatives of another union, the Turkish Metal Union, awaited the workers. The complainant organization asserts that the night shiftworkers together with the workers arriving to take up their duties for the next shift were all forced to resign from it and to affiliate to the Turkish Metal Union. Seven hundred workers were thus forced to sign 12 forms: six forms for their resignation and six forms for their registration. These transactions were concluded within only ten hours.
4. 1302. The complainant organization states that it requested the Labour Court in Gebze to immediately undertake a legal investigation with a view to “fixing the proofs” and, to that end, a lawyer was designated by the Court and went to the scene of the events. The complainant proceeds to quote what it presents as being the expert’s statement. According to the quotation in the text of the complaint, the expert explains that he arrived, together with the labour judge in Gebze and other persons, at 4.45 p.m. They saw 50 persons waiting outside the plant and that the buses had not departed despite the fact that the official working time was over. The secretary of the fifth public notary in Gebze was inside the dining hall of the plant with 50 other persons. The staff of the public notary was handling a number of printed documents. These documents consisted of six resignation forms and six affiliation forms per worker. The logo, the name, address, telephone, branch of activity and number of dossier of the Turkish Metal Union were printed on these forms. The expert and his colleagues checked the transactions undertaken by the public notary, and reported that the resignation forms contained no specification as to the workers’ names, the company’s name and address; further, the necessary information regarding the workers’ identifications was not filled in. On the other hand, the following sentence was printed on the forms: “I confirm that I resign from the abovementioned union; I request the required transactions to be done according to Trade Union Law No. 2821. Date/signature.” Workers only signed these documents. The forms contained no other statements or confirmation. Likewise, the affiliation forms had not been filled out and especially the rubrics to be completed by workers. The affiliation forms bore their signature under the following printed sentence: “I read the constitution of your union, there is no obstacle for me to become a member in your union, please accept my membership. Date/signature.” Copies of the workers’ identification cards were not attached. A total of 614 sets of documents had been dealt with. When the expert and his colleagues arrived, but also when they left, workers inside the plant protested against other persons’ manipulation.
5. 1303. According to the complainant organization, the expert’s report demonstrated that the procedure followed by the public notary violated the Public Notary Law on two accounts. First, a public notary commits an offence if he goes to the scene of events to collect the necessary papers and documents at the request of an interested party. Public notaries must perform their duties in their offices. Second, the deeds carried out by the public notary were not registered in “the official daybook of notary”. The complainant organization therefore applied to the Labour Court in Gebze; it was eventually established that the transactions’ registration had been delayed by one day.
6. 1304. Further, the complainant organization asserts that the fact that the employer delayed the buses’ departure shows that its members had been illegally forced to resign from it and to affiliate with another union. The fact that 100 workers were waiting both outside and inside the plant is another clear demonstration of the employer’s intention. The complainant organization reiterates in this respect that its members, who were on the night shift, were prevented from going home and were locked in the factory until the next morning. They were forced to gather in the dining hall with the workers assigned to the day shift. The Turkish Metal Union leaders and the employer threatened all these workers with dismissal. The latter were thus compelled to resign from their union and to register with the Turkish Metal Union.
7. 1305. The complainant organization also refers to a declaration made by the plant manager under which, according to the complainant organization, workers who decided to change unions would not lose their rights and would not be dismissed. According to the complainant organization, the plant manager specifically declared that: “As I announced before too, I personally guarantee the job security of our workers. Now, in our workplace, a peaceful environment will be established.” The complainant considers that when an employer uses such words, they must be understood as a clear threat. This declaration is a proof of the employer’s level of involvement in the case.
8. 1306. The complainant organization also contends that weapons (described, in the 22 March 2004 letter, as being three guns and ten thick sticks) were found in the car of the President of the Sakarya Branch of the Turkish Metal Union. The presence of these weapons was recorded in an official document of the police. A lawsuit has been brought before the courts; during the trial the defendants alleged that they were going to Adapazari although, according to the complainant organization, they were arrested on their way to the Colakoglu plant. In its letter of 22 March 2004, the complainant organization gave to understand that the “men with guns from the Turkish Metal Union” were present during the resignation and affiliation processes. The complainant organization contended that they were in such a hurry that they did not ask for workers’ identity cards, knowing perfectly well that they would be able to complete the membership forms by obtaining all the necessary information from the employer.
9. 1307. The complainant organization underlines that under the Collective Labour Agreement, Strike and Lockout Act No. 2822, the competence of a union lasts until the expiry of the collective agreement period. In the Colakoglu Metallurgy enterprise, such a union was the complainant organization until September 2004. Despite this, its representatives were prevented from performing their duties and in particular to enter the plant, contrary to the provisions of the collective agreement in force. On the other hand, the Turkish Metal Union could organize meetings in the plant with the consent and the approval of the employer. The complainant organization takes the view that this clearly shows that the employer sided with one union to the detriment of another.
10. 1308. The complainant states that it started a legal procedure at the national level and had been waiting for the conclusions of the Ministry of Labour and Social Security’s examination. Despite all the evidence brought forward by the complainant organization, the Ministry recognized the competence of the Turkish Metal Union. In the letter of 22 March 2004, the complainant organization asserted that the workers of the Colakoglu Metallurgy enterprise started to back the complainant organization one by one again.
11. 1309. In its communication dated 1 June 2005, the complainant adds that a representative of the Colakoglu Metallurgy Enterprise declared in his testimony to the labour inspector on 22-23 July 2004 that the management had asked for help from the security forces during the events of 11 March 2004, in order to prevent the executive board of the complainant union from entering the factory (despite the fact that the complainant was entitled to have access to the workplace as the representative union at that time). Thus, there was an intervention from the employer’s side to force workers to resign from the union. The complainant also attaches a letter in which it raises questions with regard to the answers provided by the Colakoglu enterprise to the International Metalworkers’ Federation (for instance, why did the employer lock the doors of the factory and collect the workers in the dining hall? Who decided that the service vehicles would have to wait for hours? What was the role of gangs placed in front of the factory gates? Why two guns were found by the police in a car along with the President of the Turkish Metal Union branch (the complainant alleges to have relevant court records)? Who called the public notary in the factory, given that public notaries must perform their functions in their offices except in extraordinary conditions? Why a single worker did not go to the notary in order to resign from the union if it was their own will? Why the representatives of the legally competent union are not recognized and allowed to enter the factory in accordance with the collective agreement? Why did the director of the factory write an announcement stressing that the job security of the workers was under his protection? Isn’t that evidence of a threat? Why does the employer express himself positively in relation to Turk Metal and negatively in relation to the complainant in this letter? Doesn’t the fact that the employer mentions an atmosphere of peace and security emerging after the events constitute an expression of the opinion of the employer?).
12. Grammer A.S.
13. 1310. In its letter of 22 March 2004 to the ILO Office in Ankara, appended to the complaint, the complainant organization contended that violations of trade union rights occurred in a plant located in Bursa and owned by a European German MNC company named Grammer A.S. The complainant organization explained that it had begun to organize workers in this company. It asserted that the manager had begun to dismiss workers involved in organizing trade union activities and made an announcement to the effect that he would continue to dismiss workers if they had contacts with the complainant organization. Fifty-four workers had been dismissed at the time of the complainant organization’s letter to the ILO Office in Ankara. The complainant organization also stated that, according to the news it had received, workers were subsequently forced to go to the public notary by bus to resign from it. The police was called to support the company’s management when workers started to resist getting into the buses.
14. 1311. In its communication dated 1 June 2005, the complainant attaches a letter from the Chief Executive Officer of Grammer A.G. to the General Secretary of the European Metal Workers’ Federation dated 20 April 2004, in which the management of Grammer A.G. acknowledges that there was a violation. The Chief Executive Officer said that he had been disturbed by the alleged violation in their subsidiary company Grammer A.S., and in order to understand the situation, they had supported the local management team with additional resources. He also stated that the steps taken by Grammer A.S. were inappropriate and that they were developing and implementing plans to correct the situation, including through the reinstatement of the workers who had been dismissed. The complainant also attaches a Protocol of Agreement signed between the complainant and Grammer A.S. on 26 March 2004, just before the letter of the Chief Executive Officer mentioned above. Section 4 of the agreement provided that “the employees previously dismissed will call on their jobs on 29 March 2004 and in addition to this, from the date of 1 April 2004, DISK BIRLESIK METAL-IS and the employer GRAMMER will make joint negotiations with a small portion of these workers”.
15. 1312. The complainant believes that the letter and Protocol of Agreement fully contradict the investigation report of the labour inspector which concluded that the only violation was the termination of three employment contracts without valid reason.
16. 1313. The complainant alleges that the so-called plans to correct the situation were not realized except for the reinstatement of the workers. The Grammer A.S. management had employed 238 new workers on the same date that 54 members of the complainant were dismissed, that is, on 18 March 2004. According to the complainant, this was done in order to increase the level of competence for collective bargaining in the workplace and prevent the union from getting the majority representation required. In order to get certification, the union withdrew its application and reintroduced it on 29 March 2004. The management however continued its efforts to prevent the union from organizing by dismissing 16 workers and hiring 39 new ones in violation of the Social Insurance Act, as a result of which the employer paid a 34,686,000,000 TL administrative fine. Consequently, the Ministry of Labour and Social Security gave certification as majority union to the Turkish Metal Union which prior to the problems with the management of Grammer had only 15 members in the workplace. The case had been pending before the court for 15 months.
17. 1314. A lawsuit filed against the former Director of Personnel (who had been dismissed by Grammer) was rejected and the court, which decided that he was not responsible for the decision to hire new workers and fire others so as to prevent the activities of the union and support another one (text enclosed in Turkish). Nevertheless, a handwritten statement of Ihsan Sur, attached to the complaint in Turkish, was of particular importance according to the complainant in order to indicate the violations which had taken place in Grammer. The statement indicated that when Ihsan Sur went to the factory to start work he was given a list of documents to be filled. At the same time, he was told that he should be a member of Turk Metal, otherwise, he could not begin working. Because he needed a job, he and another group of 20-25 newly recruited workers, were taken on 9 April 2004 from the factory to the Public Notary No. 14 with the service vehicles of the firm. He went involuntarily and under coercion by Mural Altiparmak (his function is not specified). In the bus there were men who introduced themselves as Turkish Metal Union officials who were not employees of the factory. Mural Altiparmak gave the order to take them to the notary and carry out their affiliation to Turk Metal. In the notary’s office, most of the new recruits, with fear and involuntarily, signed certain documents. One was a form which had six pages and concerned membership. He also signed empty resignation forms. The complainant adds that another important piece of evidence is the petition of the lawyers of Grammer to the 1st Labour Court of Bursa filed on 17 August 2004. In this document they accepted that there were efforts by certain managers to force newly recruited workers to become members of another union (text enclosed in Turkish).
18. B. The Government’s reply
19. Colakoglu Metallurgy enterprise
20. 1315. In its communication of 30 August 2004, regarding the allegations made in respect of the Colakoglu Metallurgy enterprise, the Government indicates that the applicable procedure to acquire the “certificate of competence” necessary for a union to conclude a collective agreement is governed by the second chapter of the Collective Labour Agreement, Strike and Lockout Act No. 2822. The Government underlines that all the information sent by trade unions, employers and public notaries to the Ministry of Labour and Social Security is processed electronically by the competent department. For this reason, no “false evaluation” can occur in the process applicable to the determination of the competence of a particular trade union and in particular that of the complainant organization. The Government adds that, in any case, the latter raised an objection with the Second Labour Court of the Province of Kocaeli and that the case is pending.
21. 1316. The Government asserts that the allegations are not supported by any evidence. In support of its assertion, the Government produced several documents, which will be summarized hereafter, and which are the following: (1) the observations received from the employers’ organization concerned, i.e. MESS, presented in a communication of 30 July 2004; (2) two notices of the enterprise’s management, one of which is dated 25 March 2004; (3) a report dated 9 July 2004 containing the analysis of the head labour inspector following his visit to the company on 10 and 11 June 2004; (4) the 22 and 23 July 2004 minutes of the chief labour inspector; and (5) the 2 April 2004 report of the expert appointed by the Labour Court in Gebze to check the process followed by the public notary in respect of union membership.
22. 1317. In a communication dated 23 September 2005, the Government indicated that the validity of the resignations of the workers from the complainant trade union and their joining of Turkish Metal Union is contested before the Labour Court of Gebze. The decision of the Ministry of Labour and Social Security recognizing the competence of the Turkish Metal Union to bargain at the said workplace has also been taken to the 2nd Labour Court of Kocaeli by the complainant. Both cases are still pending. The Government will act in accordance with the verdict when it is handed down.
23. Observations from the Turkish Union
24. of Metal Industrialists (MESS)
25. 1318. MESS explains that the Colakoglu Metallurgy Joint Stock Company (JSC) was founded in 1966 and has been a member of MESS ever since 1989. Collective agreements have been concluded since 1974. Never during 30 years has the enterprise shown any preference regarding the authorized union in the workplace. The employers’ organization states that there are few differences between “the group collective agreements” – and no numeric difference regarding the financial clauses – which it has concluded with three workers’ organizations, among which are both the complainant organization and the Turkish Metal Union. This is evidenced by the contents of the agreements concluded between MESS, on the one hand, and the complainant organization and the Turkish Metal Union, on the other. Thus, there is no reason for the Colakoglu Metallurgy JSC to prefer the Turkish Metal Union and therefore to put pressure on its workers to affiliate to this union.
26. 1319. With respect to the particular case at hand, MESS confirms that on 11 March 2004, there was a collective resignation from the complainant organization followed by a collective affiliation to the Turkish Metal Union. According to the employers’ organization, this was caused by internal difficulties encountered by the complainant organization. There was no pressure exercised by the Colakoglu Metallurgy JSC on its workers to change union. In support of its assertions, the employers’ organization refers to the minutes of the labour inspection dated 22 and 23 July 2004 (attached to the Government’s reply and summarized below). In this respect, the employers’ organization states the following. The workplace union representatives of the company submitted their candidature in the elections of the headquarters’ complainant organization held in December 2003 and, at the same time, supported other candidates. These candidates were eventually not elected and the new administration of the complainant organization refused to work with the union representatives of Colakoglu Metallurgy JSC and tried to appoint its own representatives. Workers resisted these attempts during ten days and eventually decided to resign from the complainant organization. The latter exercised some pressure to have the workers reconsider their position and, as a result, some actions, which took place outside the workplace, began to threaten the enterprise’s peaceful functioning. Nonetheless, the enterprise management remained impartial and did not intervene at all in union matters.
27. 1320. MESS rejects the specific allegation that workers were locked inside the factory and were compelled to resign from the complainant organization. It indicates that, on the contrary, management informed workers that they had the right to affiliate to the union of their choice and that this right was enshrined in the Constitution; hence, the exercise of this right could not result in any loss of right or dismissal and job security was guaranteed by the company. The employer made this announcement not to have some bearing on the workers’ choice but to preserve a peaceful work environment and production.
28. 1321. Finally, MESS contends that the public notary was invited by the workers themselves to come to the workplace in order to process the necessary formalities in respect of union membership. The presence of the public notary did not involve any interference on the part of the employer. On the other hand, the employers’ organization indicates that because of the conflict between the workers and the complainant organization, the latter was not authorized to access the workplace, while the public notary was processing the resignations and the consequent affiliations.
29. The management’s notices
30. 1322. The first notice, dated 25 March 2003, is issued under the company’s name with the signature of the factory’s head. In the notice, it is acknowledged that workers have exercised “their constitutional right” by resigning from the complainant organization and affiliating to the Turkish Metal Union, and that “the job security […] depends on the company Colakoglu Metallurgy JSC where [workers] have worked peacefully for years. The job security of all our honest colleagues is guaranteed”. The company calls on its employees not to yield to “those who […] want to disrupt peace”. The notice ends with this statement: “We believe that all our workers will show the necessary sensitivity on the subject”.
31. 1323. The second notice is issued under the name and signature of the factory’s head. The latter underlines that the change in union membership will not result in any loss of right and/or any dismissal. Referring to the previous notice, he reiterates that he guarantees the jobs of all of the workers. The factory’s head refers to the pressure exerted by outsiders with a view to disrupting the peace of the workplace. Recalling that the workplace has always been a peaceful and secure work environment, he expresses the belief that workers will continue to attend their job “with the same loyalty and determination as before”.
32. Analysis by the head labour inspector following his visit to the company on 10 and 11 June 2004 (report dated 9 July 2004)
33. 1324. In its communication, the Government indicates that the complainant organization made representations, among others, to the Ministry of Labour and Social Security. Upon receipt of these representations, the head labour inspector of the Ministry, Mr. Mehmet Gökçay, carried out an analysis of the situation and visited the enterprise to that end on 10 and 11 June 2004. The terms of reference of the labour inspector’s mission were to determine whether pressure for anti-union reasons had been exerted on the workers. The labour inspector held discussions with union representatives and the employer. The report is summarized below.
34. 1325. At the outset, the report indicates that the enterprise employs 966 workers. It refers to the complainant organization as being the competent union and confirms that a “group collective labour agreement” is applicable for the period 2002-04 to the enterprise, with the exception of 164 workers. The employer’s representative assured the labour inspector that the company in no way caused the collective resignation from the complainant organization or interfered with the affiliation to the Turkish Metal Union. The labour inspector interviewed on 21 May 2004 the head union representative who explained that before 11 March 2004 he was the representative of the complainant organization. He indicated that about 650 workers resigned freely from this organization to join the Turkish Metal Union (a copy of the head union representative’s statement, as it was recorded by the labour inspector, has been transmitted by the Government). Two workplace representatives confirmed this and one of them underlined that one worker maintained its membership with the complainant organization, without being dismissed.
35. 1326. The report indicates that after the labour inspector’s visit, a communication signed by 166 workers was sent to the Labour Inspection Office of the Ministry of Labour and Social Security. In this communication, the signatories declared that they wished to let it be known to the Labour Inspection Office that they resigned from the complainant organization and joined the Turkish Metal Union, freely and willingly. In its evaluation, the head labour inspector indicates that “a view has been reached that workers who were members of the [complainant organization] left on 11.3.2004 and became members of the Turkish Metal Union […] freely and of their own accord”.
36. 1327. In the light of his analysis, and of the petition signed by 166 workers, the labour inspector concludes that no pressure had been exerted on the workers for anti-union reasons.
37. Minutes of the chief labour inspector of 22 and 23 July 2004
38. 1328. These minutes were drafted on the basis of another analysis carried out by the chief labour inspector, Mr. Canpolat Ceran, on 22 and 23 July 2004. It seems that this second analysis was undertaken following the transmission to the Government of the complaint lodged before the Committee. At the outset, the chief labour inspector indicates that the group collective labour agreement, agreed between MESS and the complainant organization, was still in force at the time of the inspection since it was concluded for the period from 1 September 2002 until 30 August 2004.
39. 1329. The chief labour inspector indicates that since November 1974, when collective agreements began to be concluded in the company, these agreement have applied without any interruption (with the exception of a 15-day strike in 1989). According to the chief labour inspector, industrial relations in the company are characterized by a “very positive mutual understanding”.
40. 1330. The chief labour inspector explains that he has established the following facts. After the Gebze branch elections in October 2003, headquarters elections were held in December 2003. Workplace union representatives were candidates in these elections and/or supported some candidates who eventually lost both the branch and the headquarters elections. After the elections, the new union administration tried to appoint other workplace representatives. The representatives at the time and the workers became uncomfortable with this situation. To put an end to the union internal disagreements, the workers invited the Gebze fifth public notary on 11 March 2004. The same day about 640 workers resigned from the complainant organization and became members of the Turkish Metal Union. At the same time, the complainant organization lodged a complaint with the Gebze Labour Court alleging the employer’s pressure to its detriment and infringements to the law applicable to public notary. The chief labour inspector refers to the report written by the expert designated by the court which, according to the him, did not tackle the issue of pressure and therefore cannot constitute evidence to that end. In fact, the expert’s report simply reviewed the procedure followed by the public notary.
41. 1331. The chief labour inspector indicates that on 4 May 2004, the Turkish Metal Union submitted a request to the Ministry of Labour and Social Security to be recognized as the competent union to participate in collective bargaining. On 17 May 2004, in accordance with section 13 of Act No. 2822, the Ministry recognized the competence of this union because it met the criteria relating to the representative status. The Ministry so informed all the parties concerned. Upon being notified of the Ministry’s decision, the complainant organization raised an objection before the court questioning both the recognition of the Turkish Metal Union’s competence and the events surrounding this recognition. The inspector indicates that the case is pending.
42. 1332. The chief labour inspector indicates that two workers out of 966 decided to maintain their membership with the complainant organization and therefore a “membership subscription fee” is deducted from their salaries for this union. The chief labour inspector adds that no “membership subscription fee” is deducted from the salaries of the other workers in relation to the membership of the other union. The chief labour inspector states that the collective labour agreement concluded between MESS and the complainant organization continues to apply to workers who resigned from the latter and join the Turkish Metal Union.
43. 1333. The chief labour inspector then proceeds to quote a statement from the employer’s representative. In this statement, it is reiterated that no pressure was exerted by the employer on the workers to change union membership and that the matter stems solely from an internal conflict. It was the workers who invited the fifth public notary to the workplace in order to process their resignations and affiliations. The management did not object to the presence of the public notary. The employer’s representative is of the view that there was no denial of trade union rights since the workers were able to join freely the union of their choice. The employer’s representative explains that in order to prevent outsiders from accessing the factory while the resignation and affiliation processes took place, help was sought from the Gebze province and the chief of the security department; as a result, the security forces took the necessary steps. The employer’s representative reiterated that, since 11 March 2004, no employee was dismissed and termination of contracts only occurred through retirement or resignation.
44. Report of 2 April 2004 prepared by the expert
45. appointed by the Labour Court
46. 1334. The Government underlines that the report is limited to the issue of the processes carried out by the public notary, at the exclusion of any other issue. A copy of the report has been attached to the Government’s reply and can be summarized as follows.
47. 1335. The report written by a lawyer is addressed to the Office of the judge of the Labour Court in Gebze. The expert took down the declaration of the public notary concerning the change in union membership of 613 workers. Thus, the latter indicated that workers’ names and signatures appeared on the resignation and affiliation forms and that the other sections to be filled out were empty. The public notary indicated that “I took it upon myself to fill in the […] empty sections”. The expert notes in his report that the public notary did not record the resignations and the affiliations on the day they were undertaken and that this constituted a violation of the law on public notary. It seems that this defect was rectified the following day. The expert’s report contains no information on any other issue.
48. Grammer AS
49. 1336. In its communication of 7 January 2005, the Government indicates that, following representations made by the complainant organization on 22 March 2004 to the Labour Directorate of the Province of Bursa (where the enterprise is located), a labour inspector undertook an examination of the situation and notably of a number of documents and records submitted by the employer. The labour inspector’s report, dated 30 April 2004, is appended to the Government’s communication and can be summarized as follows.
50. 1337. At the outset, the report gives some general information on the company, which employs 856 workers, in particular by indicating that there is no recognized union. The following facts established by the labour inspector should be highlighted:
51. – the enterprise is not covered by any collective agreement;
52. – 54 workers’ contract were terminated on 18 March 2004 under section 25/II of Labour Law No. 4857, on the grounds that: the workers’ actions and behaviour caused a decrease of production; they had threatened other workers and had continued to have an aggressive and disruptive attitude despite several warnings; and their performance was not up to the level;
53. – apart from the letters of termination, there is no document relating to the grounds on which the 54 terminations had been decided, further, the employer did not inform the competent authorities of the dismissals;
54. – of the 54 workers, 51 challenged the dismissals before the 3rd Bursa Labour Court: 47 workers requested their reinstatement while the remaining 4 requested the payment of compensation;
55. – three workers did not bring any lawsuit and the employer, as of 13 April 2004, recruited two of them again.
56. 1338. The employer’s representatives declared to the labour inspectors, among other things, that the union membership had no influence whatsoever on the terminations of contracts and no pressure was exerted on workers to get into buses to go to the public notary in order to resign from the complainant organization. Indeed, according to the employer’s representatives, it is not possible to identify neither the workers who are union members and nor the unions concerned. The employers’ representatives assured the labour inspector that the workers are free to join the union of their own choosing and that they were verbally so informed by the workplace representatives.
57. 1339. On the basis of his examination, the labour inspector reached, in particular, the following conclusions:
58. – No administrative action could be taken at this stage concerning the 51 workers who challenged their termination before the Bursa Labour court.
59. – With respect to the three workers who did not file a suite before the courts, the labour inspector considered that the employer did not provide any evidence in support of the terminations; the dismissals were unjustified and, in addition, the worker had not received prior notification of the termination of contract in violation of section 17 of the Labour Law; the labour inspector concluded that the three workers should each receive a payment in lieu notice amounting to eight weeks of their respective salaries as well as a severance payment (it should be added that, concerning the two workers who were re employed, the labour inspector considered that their employment had come to an end on 18 March 2004 and that the new contract of employment was concluded when they were recruited again on 13 April 2004).
60. – No “determination could be made” regarding the allegations on the anti-union nature of the terminations and the pressure exerted on workers to resign from the complainant organization; the labour inspector therefore decided that no administrative action was called for in this respect and informed the complainant organization that it could lodge a claim with the courts to challenge this conclusion.
61. 1340. The Government indicates that the conclusions of the labour inspector’s report were duly notified to the employer and the complainant organization through two letters dated
62. 18 May 2004 (as copy of these letters have been communicated by the Government).
63. 1341. In a communication dated 23 September 2005, the Government added that a labour inspection took place on 14 May 2004 at the request of the complainant and its rival Turkish Metal Union in order to determine the competence to conclude a collective agreement at the workplace. In accordance with the provisions of article 13 of Act No. 2822 concerning collective agreements, strikes and lockouts, the Ministry of Labour and Social Security determined that the rival union Turkish Metal Union had the majority of workers as members at the abovementioned workplace and issued the required certificate of competence to the said union, thus refusing the application of the complainant union for recognition of its competence to bargain at the workplace. The complainant union filed two lawsuits before the labour court, requesting annulment of the decision of the Ministry refusing competence to the complainant and the decision recognizing the competence of the rival union. During the proceedings of the 1st Labour Court of Bursa, the employer’s lawyer admitted that the subsidiary company in Bursa behaved in a way of which the mother company did not approve and informed that the dismissed workers had been reinstated (as regards the legal actions taken by the individual workers dismissed, according to the information obtained from the 3rd Labour Court of Bursa, some of the petitions remained only as applications since the plaintiffs did not follow up and all the other cases except for two were withdrawn by the plaintiffs). The 1st Labour Court of Bursa decided on 1 July 2005 that, in light of the irregularities in the recruitment of new workers and dismissal of others, there was simulation at the workplace and therefore the Ministry’s decision to refuse the certification of the complainant was annulled and the competence of the complainant recognized. The Turkish Metal Union lodged an appeal on 27 July 2005. The second suit filed by the complainant union against the decision of the Ministry recognizing the competence of Turkish Metal Union is still pending before the Court and information will be transmitted to the ILO on new developments.

The Committee’s conclusions

1. 1342. The Committee notes that the present complaint concerns allegations that the Colakoglu Metallurgy Enterprise forced approximately 700 workers to resign from the complainant and join the Turkish Metal Union; consequently, the complainant lost its status as competent union for collective bargaining purposes and was prevented from having access to the workplace in order to perform its activities. It is also alleged that in Grammer A.S., 54 members of the complainant organization were dismissed, while other workers were hired in their place, and other members were threatened with dismissal or forced to resign from the union, in order to prevent the complainant from obtaining recognition for collective bargaining purposes.
2. Colakoglu Metallurgy Enterprise
3. 1343. The Committee notes that according to the complainant: (1) at the time the events took place, the enterprise was covered by a collective agreement concluded between the Turkish Union of Metal Industrialists (MESS – the employers’ organization to which the Colakoglu Metallurgy Enterprise is affiliated) and the complainant organization; in fact, collective agreements had been signed between these two organizations for a number of years;
4. (2) during the night of 11 March 2004, workers who had just completed the night shift were stopped on their way to get the service bus and were asked to gather in the dining hall by the employer; (3) in the hall, the fifth public notary of Gebze, invited by the employer, along with representatives of another union, the Turkish Metal Union, awaited the workers who had just finished their shift as well as the workers who had just arrived for the next shift; (4) approximately 700 workers out of 1,000 were forced to resign from the complainant union and to join the Turkish Metal Union; (5) the Turkish Metal Union leaders and the employer threatened all workers gathered in the dining hall with dismissal in order to compel them to resign from one union and join the other; (6) announcements made by the plant manager personally guaranteeing the job security of the workers after a peaceful environment was established in the enterprise, were indirect threats against the workers who might not want to leave the union; (7) weapons (three guns and ten thick sticks) were found in the car of the President of the Sakarya Branch of the Turkish Metal Union and this was recorded in an official document of the police (not provided); during the trial, the defendants alleged that they were going to Adapazari although according to the complainant, they were on their way to the Colakoglu plant; (8) men with guns were apparently present during the resignation and affiliation processes; (9) an expert who was sent by the Labour Court to examine the evidence reported that workers in the plant protested against manipulation; (10) since the change in membership, the representatives of the complainant organization were prevented from entering the plant, contrary to the provisions of the collective agreement in force, and the Collective Labour Agreement, Strike and Lockout Act No. 2822 which provides that the competence of a union lasts until the expiry of the collective agreement period; on the contrary, the Turkish Metal Union was allowed to organize meetings in the plant with the consent and the approval of the employer; (11) the procedure followed by the public notary violated the Public Notary Law because the notary did not perform his duties in his office and did not register the deeds in the official daybook of notary (it was eventually established that the registration was delayed by one day); (12) the complainant initiated legal proceedings against the Ministry of Labour and Social Security’s decision to recognize the competence of the Turkish Metal Union for collective bargaining purposes.
5. 1344. The Committee notes that in its reply the Government forwarded, inter alia, two labour inspection reports and the observations of the Turkish Union of Metal Industrialists (MESS). According to the Government’s reply: (1) since 1974 when collective agreements started to apply in the Colakoglu Metallurgy Enterprise, the management has never shown any preference regarding the authorized union in the workplace; according to the chief labour inspector, industrial relations in the company have been characterized by a “very positive mutual understanding”; (2) “group collective agreements” have been signed between MESS and three workers’ organizations including the complainant and the Turkish Metal Union with minimal differences among them (no financial difference); thus, there is no reason for the Colakoglu enterprise to prefer one union over another; (3) according to two labour inspection reports, the collective resignation from the complainant organization was due to internal difficulties of the complainant organization and no pressure was exerted by the employer; (4) in particular, in December 2003, the newly elected administration of the complainant organization refused to work with the previous union representatives in the Colakoglu Metallurgy Enterprise and tried to appoint new representatives – something that the workers opposed; (5) after resisting for ten days, workers eventually decided to resign from the complainant organization, which, in turn, exercised pressure to have the workers reconsider their position, leading to some actions outside the workplace which began to threaten the enterprise’s peaceful functioning; (6) the enterprise management remained impartial and in order to ensure a peaceful environment and production, simply informed the workers that they had the constitutional right to affiliate with the union of their own choice, and that the exercise of this right would not lead to any loss of right or dismissal; (7) the public notary was invited by the workers themselves to come to the workplace on 11 March 2004 in order to proceed with the necessary formalities in respect of trade union membership; the employer did not object to his presence; (8) on that day, 640 workers resigned from the complainant organization and became members of the Turkish Metal Union; two workers out of 966 decided to maintain their membership with the complainant organization; (9) because of the conflict between the workers and the complainant organization, the latter was not authorized to access the workplace while the public notary was processing the resignations and relevant affiliations; (10) subsequently, 166 workers declared in writing to the labour inspector that they had resigned from the complainant organization and joined the Turkish Metal Union freely and willingly; (11) the complainant lodged a complaint with the Gebze Labour Court alleging employer pressure against it and infringements of the law concerning public notaries; (12) the report written by the expert designated by the court did not tackle the issue of pressure to quit the union and simply reviewed the procedure followed by the public notary (finding minor irregularities which had been rectified); (13) the validity of the resignations of the workers from the complainant trade union and their joining of Turkish Metal Union is still being contested before the Labour Court of Gebze; (14) following a request by the Turkish Metal Union dated 4 May 2004, the Ministry of Labour and Social Security decided on 17 May 2004 to recognize the competence of this union for collective bargaining purposes as the representativeness criteria had been met (section 13 of Act No. 2822); (15) after being notified of the Ministry’s decision, the complainant raised an objection before the 2nd Labour Court of Kocaeli and the case is still pending.
6. 1345. The Committee observes that this case would appear, on the basis of the elements available to it, to concern to a large extent a dispute within the trade union movement. It recalls that a matter involving no dispute between the Government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves. Conflicts within a trade union lie outside the competence of the Committee and should be resolved by the parties themselves or by recourse to the judicial authority or an independent arbitrator [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 962 and 972].
7. 1346. With regard to the allegations of employer interference and favouritism in the context of this dispute, the Committee observes that in light of the contradictory information provided by the complainant and the Government, it is not in a position to reach conclusions on this issue. The Committee observes however that two cases have been pending for almost two years now before the courts in relation to this complaint – one case concerning the validity of the resignations of the workers from the complainant organization and the joining of the Turkish Metal Union and another concerning the recognition of the Turkish Metal Union’s competence for collective bargaining purposes. The Committee emphasizes the importance of examining the complaints arising from this case as quickly as possible so as to bring the relevant dispute to an end and expresses the hope that the courts will reach decisions on these matters without further delay. It requests the Government to keep it informed in this respect and to transmit a copy of the decisions as soon as they are handed down.
8. 1347. With respect to the complainant’s allegation that its representatives were prevented from performing their duties and in particular entering the plant, the Committee recalls that minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and especially to speak on behalf of their members and to represent them in the case of an individual claim [see Digest, op. cit., para. 313]. The Committee therefore requests the Government to take all necessary measures to ensure respect for this principle and to keep it informed in this respect.
9. Grammer A.S.
10. 1348. The Committee notes that according to the complainant: (1) 54 workers involved in organizing trade union activities in Grammer A.S. were dismissed on 18 March 2004; (2) others were threatened with dismissal should they continue to have contact with the complainant organization; (3) these workers were subsequently forced by the company to go to a public notary with the help of the police in order to resign from the complainant organization; (4) one worker stated in a handwritten statement that he had been forced along with another 20-25 newly recruited workers to join the Turkish Metal Union on 9 April 2004; (5) the Chief Executive Officer of the main company based in Germany, Grammer A.G., indicated in his letter dated 20 April 2004 to the General Secretary of the European Metal Workers’ Federation that “some of the steps taken by Grammer A.S. [Turkey] are not in line with labour laws and our Grammer standards of conduct. We are now developing and implementing plans to correct the situation, which includes the reinstatement of workers that were dismissed.” (letter attached to the complainant’s communication); (6) according to a Protocol of Agreement signed between representatives of Grammer A.G. and the complainant on 26 March 2004, all workers would be reinstated and joint negotiations would take place between the complainant and the employer from 1 April 2004 (text attached); (7) the 54 workers were reinstated; however, another 238 workers had been hired on 18 March 2004, that is, the day when the 54 workers had been dismissed; moreover, 16 other workers were dismissed and 39 hired, in violation of the Social Insurance Act for which the employer had to pay an administrative fine; (8) as a result of these changes, the complainant was unable to get recognition as competent union for collective bargaining purposes; (9) the Turkish Metal Union was recognized instead as competent, despite the fact that prior to the incidents, it had only 15 members in the workplace; (10) the complainant brought a complaint before the courts and the case had been pending for 15 months before the 1st Labour Court of Bursa; (11) the lawyers of Grammer acknowledged before the court on 17 August 2004 that efforts had been made by certain managers to force newly recruited workers to become members of another union.
11. 1349. The Committee notes that according to the Government: (1) 51 of the 54 dismissed workers initially challenged their dismissals before the 3rd Labour Court of Bursa; (2) a labour inspector who investigated the relevant denunciations refrained from drawing any conclusions as regards these 51 workers whose case was pending before the court; (3) the labour inspector examined the case of the remaining three workers and found that their dismissals were unjustified because there had been no notification, but did not examine the issue of anti-union discrimination (he decided that the three workers should receive eight weeks of salary in lieu of notice as well as severance payment); in the meantime, two of these workers had been recruited again by the company as of 13 April 2004; (4) following a request from the complainant and the Turkish Metal Union to determine the competence to conclude a collective agreement at the workplace, the Ministry of Labour and Social Security found that the Turkish Metal Union had the majority of workers as members at the workplace and issued the required certificate of competence to the said union, thus refusing the application of the complainant; (5) the complainant filed two lawsuits before the labour court, requesting annulment of the decision of the Ministry refusing competence to the complainant and of the decision recognizing the competence of the rival union; (6) during the proceedings before the 1st Labour Court of Bursa, the employer’s lawyer admitted that the subsidiary company in Bursa had behaved in a way of which the mother company did not approve and informed that the dismissed workers had been reinstated; their legal actions claiming reinstatement or compensation had been dropped; (7) the 1st Labour Court of Bursa decided on 1 July 2005 that in light of the irregularities in the recruitment of new workers and dismissal of others, the Ministry’s decision concerning competence to carry out collective bargaining should be quashed and the complainant’s competence recognized; (8) the Turkish Metal Union lodged an appeal on 27 July 2005; (9) the second lawsuit filed by the complainant against the decision of the Ministry recognizing the competence of the Turkish Metal Union is still pending and information will be transmitted to the ILO in this respect.
12. 1350. While welcoming the recognition by the Grammer A.G. company of the acts of anti-union discrimination which took place in its Bursa subsidiary and the measures taken voluntarily to rectify the situation, including the reinstatement of all the dismissed workers, the Committee also notes with regret that the labour inspectorate initially entrusted with investigating the denunciations, refrained from addressing the issue of anti-union discrimination. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. The Committee requests the Government to take all necessary measures to ensure that any effects that the acts of anti-union discrimination which took place in Grammer A.S. in March 2004 may have on the membership of the complainant organization will be fully rectified, including in the framework of the voluntary steps taken by the management to this effect, and to keep it informed in this regard.
13. 1351. The Committee also notes that the 1st Labour Court of Bursa decided on 1 July 2005 that in light of the irregularities in the recruitment of new workers and dismissal of others, the Ministry’s decision concerning competence to carry out collective bargaining should be quashed and the complainant’s competence in this respect recognized and that the Turkish Metal Union lodged an appeal against this decision on 27 July 2005. It also notes that another suit filed by the complainant against the decision of the Ministry recognizing the competence of the Turkish Metal Union is still pending and information will be transmitted to the ILO in this respect. The Committee requests the Government to keep it informed of the outcome of the legal proceedings under way concerning the recognition of the trade union with competence for collective bargaining purposes in Grammer A.S.