Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 371, Mars 2014

1. 926. The Committee last examined this case at its March 2013 meeting, when it presented an interim report to the Governing Body [367th Report, paras 1226–1239, approved by the Governing Body at its 317th Session (March 2013)].
2. 927. The Government submitted additional observations in a communication dated 6 September 2013.
3. 928. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 929. In its previous examination of the case in March 2013, the Committee made the following recommendations [367th Report, para. 1239]:
   • (a) The Committee requests the Government to renew its efforts, in consultation with the social partners, so as to bring Act No. 4688 into conformity with Convention No. 87 as regards the organizational rights of judges and public prosecutors. The Committee invites the Government to avail itself of the technical assistance of the Office in this respect, if it so desires.
   • (b) The Committee once again urges the Government to take the necessary measures to immediately register YARGI-SEN as a trade union organization of judges and prosecutors so as to ensure that it can function, exercise its activities and enjoy the rights afforded by the Convention to further and defend the interests of these categories of public servants. The Committee requests the Government to keep it informed of the developments in this respect.
   • (c) The Committee requests the Government to institute an independent inquiry into the alleged acts of anti-union discrimination suffered by the trade union leaders Dr Rusen Gültekin, Omer Faruk and Ahmet Tasurt and to provide detailed information on its outcome and any remedial steps taken should these acts be found to be of an anti-union nature.

B. The Government’s reply

1. 930. In its communication dated 6 September 2013, the Government indicates that pursuant to the third paragraph of article 51 of the Turkish Constitution, the exercise of the right to establish trade unions is regulated by the legislation in force. The Government indicates in this respect that pursuant to section 47 of the Turkish Civil Code (No. 4721), it is compulsory for organized groups of persons to meet legislative requirements in order to possess the status of legal entity. It further indicates that pursuant to section 4 of the Public Employees’ Unions and Collective Agreement Act (Act No. 4688), as amended by Act No. 6289 of April 2012, trade unions are established to carry out Turkey-wide activities by public servants working in the public workplaces in a service branch and that trade unions cannot be established based on profession or workplace. While section 15 of Act No. 4688 sets out a principle according to which all public servants enjoy trade union rights, it leaves a limited number of public servants out of the scope of the Act due to the nature of their duties. According to section 15(b) of the Act, members of higher judicial organs, judges, prosecutors and those considered as members of this profession cannot establish and be members of trade unions.
2. 931. The Government further states that it considered Article 1(1) of Convention No. 151 according to which, the extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations. It also refers to Article 8 of Convention No. 87, according to which, in exercising the rights provided for in this Convention, employees and employers and their respective organizations, like other persons or organized groups, shall respect the law.
3. 932. The Government affirms that the application made by YARGI-SEN to the Ministry of Labour and Social Security of the Republic of Turkey was not accepted due to its being contrary to sections 4 and 15 of Act No. 4688. According to the legislation, it is not possible to establish a trade union on the basis of profession. Judges and public prosecutors and those considered to be members of this profession are therefore not allowed to establish or become members of trade unions. In these circumstances, on 28 July 2011 the Ankara 15th Labour Court ruled for the dissolution of YARGI-SEN on the grounds of violation of the ban to establish a trade union on the basis of profession. This decision was confirmed by the ruling of the Penal Department No. 9 of the Supreme Court dated 21 February 2012.

C. The Committee’s conclusions

1. 933. The Committee takes note of the information provided by the Government. The Committee notes with regret that the Government merely reiterates that section 15(b) of Act No. 4688, as amended by Act No. 6289 of April 2012, continues to exclude judges and prosecutors from being members of trade unions and cannot establish trade unions and that pursuant to section 4, trade unions based on profession or workplace cannot be established. The Committee deeply regrets the lack of measures taken or envisaged by the Government to bring these provisions into conformity with the principles of freedom of association, as previously requested by the Committee. It once again recalls that it considers section 15, which denies the right to set up trade unions to judges and public prosecutors, and section 4, which prohibits the establishment of trade unions on an occupational or workplace basis, of Act No. 4688 to be contrary to the principles of freedom of association as laid down in the relevant Conventions, according to which workers “without distinction whatsoever” shall have the right to establish and join organizations “of their own choosing” without previous authorization. With regard to the allowed exceptions under Convention No. 151 referred to by the Government, the Committee points out that while Convention No. 151 recognized that certain categories of public servants (including those in highly confidential positions) may be excluded from the more general provisions guaranteeing to public servants protection against acts of anti-union discrimination or ensuring the existence of methods of participation in the determination of their conditions of employment, this exclusion cannot be interpreted as affecting or minimizing in any way the basic right to organize of all workers guaranteed by Convention No. 87. Therefore, the Committee urges the Government to renew its efforts, in consultation with the social partners, so as to bring Act No. 4688 into conformity with Convention No. 87 and to ensure the right of judges and public prosecutors to establish trade unions to defend their occupational interests. The Committee invites the Government to avail itself of the technical assistance of the Office in this respect, if it so desires and draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
2. 934. The Committee notes the Government’s indication that as the establishment of YARGI SEN as a trade union organization is contrary to the provisions of Act No. 4688, the Ankara 15th Labour Court ruled on 28 July 2011 for the dissolution of YARGI-SEN on the grounds of violation of the ban to establish a trade union on the basis of profession. This decision was confirmed by the ruling of the Penal Department No. 9 of the Supreme Court dated 21 February 2012. Considering that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases and in no case should be based on motives which the Committee previously found to be contrary to the principles of freedom of association as laid down in the relevant Conventions, the Committee once again urges the Government to take the necessary measures to immediately register YARGI-SEN as a trade union organization of judges and prosecutors so as to ensure that it can function, exercise its activities and enjoy the rights afforded by the Convention to further and defend the interests of these categories of public servants. The Committee requests the Government to keep it informed of the developments in this respect.
3. 935. The Committee deeply regrets that the Government provided no information in respect of recommendation (c). The Committee once again urges the Government to institute an independent inquiry without delay into the alleged acts of anti-union discrimination through the imposed transfer of union leaders Dr Rusen Gültekin, Omer Faruk and Ahmet Tasurt and, should these acts be found to be of an anti-union nature, to take appropriate remedial steps. It requests the Government to indicate the current status of these union leaders and to keep it informed of the outcome of the inquiry and all follow-up measures taken.