Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 372, Juin 2014

1. 619. The complaint is contained in communications dated 4 March and 25 July 2013 submitted by the Turkish Civil Aviation Union (Hava-İş) and the International Transport Workers’ Federation (ITF).
2. 620. The Government sent its observations in communications dated 6 September 2013 and 5 May 2014.
3. 621. 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 complainants’ allegations

1. 622. In a communication dated 4 March 2013, the complainant organizations, Hava-İş and the International Transport Workers’ Federation (ITF), present a formal complaint against the Government of Turkey for violations of ILO Conventions Nos 87 and 98 and the principles of freedom of association. The complainants believe that the conduct of Turkish Airlines (hereinafter: the enterprise) in the dispute that prompted this complaint exposes a number of failures in Turkish law to protect the rights of workers and trade unions, for which the Government is responsible as an ILO member State and party to Conventions Nos 87 and 98. In their view, serious questions of compliance arise with respect to the requirement to adopt measures to enable trade unions to freely organize their activities and formulate their programmes without restrictions or impediments on the lawful exercise of these rights; to protect trade unions in their efforts to further and defend the interests of workers; and to protect workers from acts of anti-union discrimination.
2. 623. The complainant organizations describe the enterprise as the national carrier of Turkey operating scheduled services to 163 international and 41 domestic cities, serving a total of 204 airports in Europe, Asia, Africa and the Americas. As of June 2011, the airline had 18,188 employees and a fleet consisting of 200 aircraft. The airline’s base is at Ataturk International Airport (Istanbul). Currently, the Prime Ministry Privatisation Administration owns a 49.12 per cent interest in the enterprise (50.88 per cent of shares being publicly traded), which according to the complainants is likely to mean that the Government is closely involved in the appointment of senior levels of management at the airline.
3. 624. The complainant organizations also indicate that Hava-İş was established in 1962 to meet the new challenges faced by aviation workers in a fledgling industry. For more than two decades, it has been a democratic and campaigning union which fights for aviation workers’ rights and stands up for equality. Hava-İş has 17,000 members, which amounts to roughly 93 per cent of the entire workforce of the enterprise. It has branches in Ankara, Izmir, Antalya and the Asian coast of Istanbul and has representative offices in Adana and Dalaman. The organization belongs, since 1964, to the National Trade Union Confederation (Türk-Iş) and is also an active affiliate of the ITF and its European arm, the European Transport Workers’ Federation.
4. 625. The complainant organizations allege the following facts: (i) in February 2012, draft legislation introduced by the Turkish government included a clause that appeared to deliberately target Hava-İş (the only aviation union) as it gave aviation companies the right to force 40 per cent of their workforce back to work during a strike; (ii) subsequently, during the parliamentary procedures considering the draft legislation, the Primary Committee took out the strike provision and sent it back to the Plenary; (iii) on 10 May 2012, allegedly at the request of the enterprise, an amendment was introduced by the ruling party to section 29 of the existing Collective Labour Agreement, Strike and Lockout Act (Act No. 2822), which sought to add the aviation industry to the list of services where industrial action was prohibited; (iv) at the end of May 2012, the amendment was rushed through the General Assembly and swiftly approved by the President who had refused to meet with the Hava-İş leadership to discuss the attempt to outlaw the right to strike in the aviation industry; (v) on 23 May 2012, 3,000 Hava-İş members joined a rally organized by the union in front of the general management building of the enterprise, and the union’s President addressed the crowd calling on workers to down tools should the strike ban in the civil aviation sector come into force; (vi) on the evening of 28 May 2012, the union sent text messages to its members calling on them to take a day’s sick leave, the only form of industrial action available to them, in protest at the Government’s decision to institute a strike ban in the civil aviation sector; (vii) on 29 May 2012, approximately 80 per cent of the cabin crew and technical staff called in sick and did not report to work; (viii) the company responded by dismissing 316 workers (named in the complaint) by text, message, email and phone via messages reading: “You are sacked for joining an illegal action”; (ix) although the dismissed workers were not ordered to pay the significant fines levied on individuals taking part in unlawful industrial action as prescribed by national law, the possibility of also being fined impacted the morale of the workers; (x) immediately after dismissing the workers, the enterprise assigned flight duty to some newly hired cabin crew members, reportedly before they had finished their training, and posted job advertisements for cabin crew on its website; (xi) Hava-İş subsequently assisted all its dismissed members to bring reinstatement proceedings in the Turkish labour courts, and, as of 1 March 2013, 99 of the 316 dismissed workers have been reinstated following findings by the Turkish labour courts of unfair dismissal; (xii) the enterprise brought a criminal complaint against Hava-İş for organizing an allegedly unlawful strike and claimed damages worth US$4 million but the prosecutor transferred the case to the Labour and Social Security Ministry which decided on 18 January 2013 that there was no reason to initiate criminal proceedings; and (xiii) the dismissed workers and supporters have maintained an open-ended protest at Ataturk International Airport since 30 May 2012.
5. 626. The complainant organizations recall that Turkey has ratified ILO Conventions Nos 87, 98 and 151; is bound by virtue of its ILO membership to the ILO Constitution, the Declaration of Philadelphia and the 1998 Declaration on Fundamental Principles and Rights at Work; and has ratified the European Convention on Human Rights (with particular reference to its Article 11), the International Covenant on Economic, Social and Cultural Rights (ICESCR) (with particular reference to its Article 8), the International Covenant on Civil and Political Rights (ICCPR) (with particular reference to its Article 22). The complainants also refer to the Vienna Convention on the Law of Treaties (Article 31(1)).
6. 627. As regards national legislation, the complainant organizations recall that the Turkish Constitution of 1982 provides for a positive right to strike insofar as it is a corollary of collective bargaining. Its article 54(1) provides that workers have the right to strike if a dispute arises during the collective bargaining process. Article 54(7) had contained a prohibition on, inter alia, “political” strikes, which was repealed in 2010 following a popular referendum on constitutional amendments. However, as section 54(1) continues to link the positive right to strike to the collective bargaining process, the ban on political and therefore protest strikes is, in the complainants’ view, ostensibly still in force. The complainant organizations also allege that, while article 90(5) of the Constitution states that in case of a conflict between international treaties Turkey has ratified (presumed to include ILO Conventions) and national law, the provision of international law shall prevail, it is widely known that Turkish courts are reluctant to apply it.
7. 628. Recalling that the protest action organized by Hava-İş was called in response to the Government’s proposal to introduce a full-fledged ban on industrial action in the aviation industry, the complainant organizations indicate that the ban was subsequently instituted through an amendment to the Collective Labour Agreement, Strike and Lockout Act (Act No. 2822). This Act also contained in its section 25(3) an express prohibition on political strikes, sympathy strikes and other forms of industrial action not linked to the collective bargaining process: “The expression ‘unlawful strike’ means any strike called without fulfilling the conditions for a lawful strike. A strike called for political purposes, or a general strike, or any solidarity strike, shall be unlawful. The penal provisions concerning unlawful strike shall apply to occupation of the establishment, slowdown, deliberate reduction of output and any other resistance action.” Section 73 provided for sanctions, including heavy fines and imprisonment, for calling unlawful strikes aimed at influencing “decisions of the state” or participating in them.
8. 629. The complainant organizations further indicate that Act No. 2822 was repealed and replaced with the Trade Unions and Collective Labour Agreements Act (Act No. 6356), which came into force on 7 November 2012. The ban on strikes in the aviation sector was lifted. Also, the express prohibition on so-called political strikes contained in section 25 of Act No. 2822 was not transposed into Act No. 6356. However, according to the complainants, the new law still implicitly prohibits in its section 58(2) strikes that are not linked to the collective bargaining process: “Lawful strike means any strike called by workers in accordance with this law with the object of safeguarding or improving their economic and social position and working conditions, in the event of a dispute during negotiations to conclude a collective labour agreement.” In the complainants’ view, the formulation of this section is consistent with the approach taken in the revision of the Turkish Constitution whereby the explicit ban on political strikes was repealed and the implicit prohibition maintained in order to achieve the same outcome. While not replicating the heavy sanctions (fines or imprisonment) provided for in section 73 of Act No. 2822, Act No. 6356 introduced in its section 78(1)(e) and (f) fixed administrative fines for calling or taking part in unlawful strikes of five thousand or seven hundred Turkish Liras, respectively.
9. 630. The complainant organizations denounce that, despite the recent overhaul of the national industrial relations legislation, the law continues to tacitly consider protest or political strikes unlawful. It was this prohibition that ultimately led to the dismissal of the 316 employees of the enterprise who participated in the industrial action to protest against a draft law that would have adversely affected their collective bargaining power by prohibiting them from calling strikes in the aviation industry. While stressing that the proposed blanket ban on strikes in the civil aviation sector that had triggered the protest action was in contravention of the principles of freedom of association, the complainants state that they do not wish to raise the issue as the ban was subsequently lifted following the enactment of Act No. 6356.
10. 631. In the complainants’ view, albeit a clear economic interest to be able to use strike action as a tool in the collective bargaining process, strikes that go further are also protected by Convention No. 87. Thus, Article 10 of the Convention defines worker organizations as organizations for furthering and defending the interests of workers, thereby implying interests wider than the economic interests during the collective bargaining process. The complainants believe that the right to strike cannot be confined to the employer with whom workers and/or their union are in dispute, and that both sympathy and protest strikes are clearly permitted according to the principles of freedom of association.
11. 632. The complainants further indicate that the excessive penal sanctions for workers participating in industrial action and for unions calling industrial action amount to a breach of freedom of association. While the complainants are satisfied that the heavy criminal sanctions for participating in unlawful strikes contained in Act No. 2822 have been revoked, they still consider the fines prescribed by section 78(1) of Act No. 6356 to be excessive. With strike bans in a broad range of industries labelled as “essential services” and a prohibition on solidarity, sympathy, general, political and protest strikes, the scope for levying these fines is large. The complainant organizations underline that the 700 Turkish liras (TRY) fine for a worker participating in an unlawful strike amounts to approximately 50 per cent of the average monthly wage in Turkey. Moreover, they submit that while the 316 dismissed workers have not faced criminal sanctions and/or fines, the option to do so was available for the authorities under both Act No. 2822 and Act No. 6356. Moreover, according to the complainants, no statute prevented the enterprise from bringing the previously mentioned criminal complaint against the complainant Hava-İş for organizing an allegedly unlawful strike and claiming damages worth $4 million, a fine which would have led to the dissolution of the union. The complainants believe that fines of this nature are not in line with Convention No. 87.
12. 633. The complainant organizations further allege that the Government has failed to protect workers from acts of anti-union discrimination and denounced that, regardless of questions about the legality of the protest strike that led to the dismissal of 316 employees, Turkish law permitted and still permits mass dismissal of this nature.
13. 634. The complainants conclude that the conduct of the enterprise was not consistent with the principles of freedom of association and with Conventions Nos 87 and 98, and that the national law which authorizes such actions is equally not in conformity with the relevant principles and Conventions. In the complainants’ view, the new Act No. 6356 does not meet the requirements of the two Conventions due to the ongoing prohibition of protest strikes, the excessive fines imposed on workers and unions for taking industrial action against a strike ban in the aviation industry (that was itself not in conformity with ILO standards) and the tolerance of mass dismissals of workers taking strike action. The complainants request the Committee, given the serious nature of the alleged violations of trade union rights set out in the present complaint, to find the Government of Turkey to be in breach of its obligations under Conventions Nos 87 and 98, to call on the Government to amend Act No. 6356 to bring it fully into conformity with the principles of freedom of association, and to call on the Government to seek the immediate reinstatement of the remaining dismissed workers with full pay for back wages and adequate compensation.
14. 635. In a communication dated 27 July 2013, the complainants add that the courts have so far given reinstatement or compensation orders in favour of 200 of the 316 unlawfully dismissed workers. In light of the failure of Turkish Airlines to reinstate or compensate the dismissed workers as ordered by the courts and following unsuccessful negotiations for a new collective bargaining agreement, members of Hava-İş have been on strike since 15 May 2013. According to the complainants, instead of implementing the court orders, the enterprise chose to appeal the decisions. So far, 74 unlawful dismissal rulings have been upheld by the courts of appeal.
15. 636. The complainant organizations further indicate that Hava-İş invited the enterprise to commence collective bargaining negotiations in accordance with section 46(1) of Act No. 6356. The enterprise refused to accept any of the union’s demands and unilaterally called an end to the collective bargaining process on the 15th day of negotiations, although section 47(3) prescribes a period of 60 days for collective bargaining from the first meeting. In accordance with section 50, a state-appointed mediator intervened to help end the impasse but stopped the process after only one meeting between the parties. Following the failure to reach agreement, Hava-İş called for industrial action in accordance with sections 60 and 61.
16. 637. The complainants allege that: (i) in the wake of the strike, the Government stated that the suspension of flights was “unacceptable” and that it would do “whatever it needs” as the enterprise was an important institution for “national security and tourism”; (ii) this threat presumably referred to section 63 of Act No. 6356, which affords the Council of Ministers the possibility to suspend a strike if it is prejudicial to national security; (iii) as of the first day of the strike, riot police brandishing tear gas were deployed to the Istanbul Atatürk Airport where the main picket line was set up; (iv) police presence was excessive, putting significant psychological pressure on the striking workers; (v) as soon as the strike was called, it became immediately apparent that the enterprise was hiring new workers and using staff from a sister airline to replace striking staff; and (vi) the airline management began forcing inappropriate alternative work onto almost 700 union members who were prohibited from taking part in this strike by law.
17. 638. According to the complainants, Hava-İş wrote to the General Directorate of the Turkish Employment Agency four times between 15 and 31 May 2013 to denounce the abovementioned practices of the enterprise during the strike as contrary to sections 65 and 68 of Act No. 6356 and to request it to call on the enterprise to discontinue these unlawful practices. The union only received a response on 17 June 2013 stating that the Agency could not take any action because the union had initiated legal proceedings. The complainants feel that the Agency had had ample time to respond to the union before it petitioned the court. On 8 July 2013, the Istanbul Labour Court ruled in favour of the union finding that the airline had unlawfully hired temporary staff and had forced inappropriate alternative work onto union members unable to take part in the strike.
18. 639. In conclusion, the complainants allege that: (i) although the Government has yet to exercise its power to suspend the strike, the very threat and ability of governments to suspend strikes on the grounds of national security is a clear violation of the principles of freedom of association; (ii) the aggressive police presence and interference is entirely disproportionate considering the number and peaceful nature of the pickets (pictures enclosed in the complaint); and (iii) the failure of the Turkish Employment Agency to inspect the actions taken by the enterprise and denounced as unlawful by the union is not in line with the principles of freedom of association.
19. 640. The complainants state that the abovementioned conduct of the enterprise is equally inconsistent with the principles of freedom of association and Conventions Nos 87 and 98, and that the national law which authorizes such a conduct is consequently contrary to the requirements of these Conventions due to the ability of the Government to suspend strike on the grounds of national security, the use of aggressive policing tactics, and the failure of state machinery to curb employer anti-union activities during strikes. They also underline that their allegations clearly demonstrate the inhospitable nature for industrial action in Turkey. The complainants request the Committee to find the Government to be in breach of its obligations under Conventions Nos 87 and 98 and to call on it to amend Act No. 6356 to bring it fully into conformity with the principles of freedom of association, and reiterate their request for the reinstatement of the dismissed workers.

B. The Government’s reply

1. 641. In a brief communication dated 6 September 2013, the Government states that a disagreement occurred between Hava-İş and Turkish Airlines concerning the dismissal of 305 workers. According to the Government, the complainant Hava-İş demands: (i) the application of the court decision ruling the re-employment of 305 dismissed workers; (ii) payment for loss of severance to the relevant employees; (iii) securing the union’s approval on the matter of employees’ personal rights with association procedure; and (iv) ensuring unexhausted flights and extending rest periods of employees in the area of security at work.
2. 642. As regards the situation of the dismissed workers, the Government indicates that the Ministry of Labour and social security had a number of meetings with both sides to help them come to an agreement and exerted every effort to eliminate the disagreement. The dismissed workers filed a lawsuit for re-employment. The cases of 47 workers were approved by the Supreme Court of Appeals and concluded, whereas the cases of the remaining workers remain pending. In its communication dated 5 May 2014, the Government adds that the negotiations on the 24th Period Collective Labour Agreement for Enterprises which started on 6 January 2013 between Hava-İş and management have resulted in a dispute on 23 January 2013. Upon disagreement in the collective labour agreement negotiations, the strike decision taken on 10 April 2013 on the basis of section 58 of Act No. 6356 was put into effect as of 5 May 2013 in line with section 60 of that Act. The Government indicates that Hava-İş subsequently applied to the Provincial Directorate of Labour and Employment Agency as the competent authority requesting an inquiry alleging that the company was employing some workers in the enterprise who did not take part in the strike, the staff of the other airline having an organic link with the company, and that new workers were brought from outside permanently or temporarily instead of those who participated in the strike. Since no inquiry was carried out, the union filed a complaint with the Public Inspection Institution against the competent authority and brought the matter before the court alleging that the employer violated sections 65 (“Workers excluded from taking part in a lawful strike or lock-out”) and 68 (“Prohibition of recruitment or other employment”) of Act No. 6356. Following an inspection undertaken by the labour inspectors of the Ministry it was agreed to await the court decision. The Government states that, after having evaluated the expert report certifying that other workers had been employed instead of the workers participating in the strike, the court decided to cease the employment of other workers via precautionary measure, but the ruling was appealed and subsequently reversed. The strike came to an end on 19 December 2013 upon mutual agreement, and the 24th Period Collective Labour Agreement was signed for the period 1 January 2013–1 December 2015. Concerning the 305 dismissed workers, the Government reports that a commission of six comprising three union representatives and three representatives of the management has been established by the protocol signed during the collective labour agreement, which considered appropriate to reinstate 256 dismissed workers and subsequently considered appropriate to reinstate 33 workers out of 39 workers who are union members working in Technical Co. during the negotiations between the union and the Technical Co. management. On the other hand, an agreement was reached between the parties that some of the workers who are union members could not be reinstated due to disciplinary action.
3. 643. Furthermore, the Government refers to article 51 of the Constitution (right to form trade unions and higher organizations without prior permission; right to join or withdraw from a union; freedom to join or not to join and to withdraw from a union) as well as article 54 (right to strike during the collective bargaining process if a disagreement arises; repeal of prohibition of politically motivated strikes, solidarity strikes, labour go-slows and other forms of obstruction). The Government also identifies the following provisions of Act No. 6356 as being particularly relevant to freedom of association: section 17(3) – freedom to join or not to join a union (with the corresponding sanction in section 78(1)(c)); section 19 – freedom to maintain or resign union membership (with the corresponding sanction in section 78(1)(c)); section 25 – prohibition of acts of anti-union discrimination with regard to employment on the grounds of union membership or activity, and reversed burden of proof; section 26 – freedom of operation of trade unions; section 58 – definition of strike, lawfulness of a strike in conformity with the law; no prohibition of politically motivated strikes, general and solidarity strikes, labour go-slows and other forms of obstruction; section 62 – prohibition of strikes in certain services and removal from the list of the following services: notary services; workplaces producing vaccine and serum; health workplaces such as clinics, sanatoriums, dispensaries and pharmacies except hospitals; educational institutions; day-care centres; nursing homes; and aviation services.

C. The Committee’s conclusions

1. 644. The Committee notes that, in the present case, the complainant organizations allege the dismissal by Turkish Airlines of 316 workers for taking part in a protest strike on 29 May 2012, measures impeding the exercise of the right to strike during the industrial action called on 15 May 2013, as well as shortcomings in national legislation in the field of industrial action.
2. 645. The Committee notes in particular the following allegations of the complainant organizations: (i) on 10 May 2012, an amendment was introduced to the existing Collective Labour Agreement, Strike and Lockout Act (Act No. 2822) seeking to add the aviation industry to the list of services where strike was prohibited, and was swiftly approved by the President who had allegedly refused to meet with the Hava-İş leadership to discuss the matter; (ii) following the call of the union to take industrial action in protest against the Government’s decision, approximately 80 per cent of the staff of the enterprise did not report to work on 29 May 2012; (iii) the enterprise responded by dismissing 316 workers “for joining an illegal action”; (iv) as of July 2013, the courts have issued reinstatement or compensation orders in favour of 200 of the 316 unlawfully dismissed workers, but the enterprise failed to implement them and instituted appeal proceedings, which, so far, have led to 74 unlawful dismissal rulings being upheld by the court of appeal; and (v) the enterprise brought a criminal complaint against Hava-İş for calling an unlawful strike and claimed damages worth $4 million but the prosecutor transferred the case to the Ministry which put it aside as unfounded. The Committee notes the Government’s observations, in particular that: (i) the Ministry of Labour had a number of meetings with both sides to eliminate the disagreement; (ii) the Government does not contest the allegations of the complainants, with the exception of the number of dismissed workers which, according to the Government, is 305; (iii) the labour courts ordered the reinstatement of all 305 dismissed workers and appeal proceedings are still ongoing; (iv) a bipartite commission (three union representatives and three representatives of the management) was established by the protocol signed on 19 December 2013 at the conclusion of the 24th Period Collective Labour Agreement between the union and the company for the period 1 January 2013–1 December 2015, with the mandate to deal with the issue of the 305 dismissed workers; and (v) the commission considered appropriate to reinstate 256 dismissed workers and subsequently considered appropriate to reinstate 33 workers out of 39 who are union members working in Technical Co.; on the other hand, an agreement was reached between the parties that some of the workers who are union members could not be reinstated due to disciplinary action.
3. 646. The Committee notes that over 300 dismissals in this case occurred immediately following the industrial action of 29 May 2012 with the enterprise indicating that the decision was taken “for joining an illegal action”. The assumption of the illegality of the work stoppage by the enterprise was according to the complainants based on section 25 of Act No. 2822 (then in force), which provided that strikes called for political purposes, general strikes or solidarity strikes shall be unlawful. The Committee observes, however, that at the time of the dismissals, no decision concerning the illegality of the industrial action, which would be the responsibility of an independent body such as a court, had been issued. In any event, the Committee recalls that, while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government’s economic and social policies [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 529]. It also refers to previous comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) criticizing this prohibition contained in section 25 of Act No. 2822 and article 54(7) of the Turkish Constitution and subsequently noting with interest the repeal of the constitutional provision.
4. 647. The Committee observes that the action taken by Hava-İş on 29 May 2012 to protest against a legislative initiative to ban strikes in the aviation sector amounts to a work stoppage in protest against a socio-economic policy issue having a direct impact on the members of the airline union and on workers of the aviation industry in general, and thus to a protest action within the remit of protection of the principles of freedom of association. Recalling that the dismissal of trade unionists may only be based on strike prohibitions that in themselves do not infringe the principles of freedom of association, the Committee concludes, as it has previously done in a similar case concerning Turkey which involved the parties to the present complaint [see Case No. 1755, para. 343], that the decision to dismiss the striking workers has been taken as a consequence of the legitimate trade union activities of the workers in question, and more specifically of their participation in the work stoppage of 29 May 2012. In these circumstances, the Committee once again recalls to the Government that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association [see Digest, op. cit., para. 666]. The Committee therefore welcomes the information provided by the Government according to which a bipartite commission was established to deal with the issue, which decided that the vast majority of dismissed workers be reinstated and reached agreement that some of the workers could not be reinstated due to disciplinary action. The Committee requests the Government to continue to make every effort to ensure, if this is not already the case, in line with the bipartite agreement, that the dismissed workers are swiftly reinstated effectively in their jobs under the same terms and conditions prevailing prior to their dismissal with compensation for lost wages and benefits.
5. 648. Furthermore, the Committee notes that, in the complainants’ view: (i) since article 54(1) continues to link the positive right to strike to the collective bargaining process, the ban on political and therefore protest strikes is ostensibly still in force; (ii) while Act No. 2822 was repealed and replaced with the Trade Unions and Collective Labour Agreements Act (Act No. 6356), and the express prohibition of strikes called for political purposes, general strikes or solidarity strikes (section 25(3) of Act No. 2822) was not transposed into Act No. 6356, the new law continues to tacitly consider protest or political strikes as unlawful; and (iii) both the Turkish Constitution and Act No. 6356 take the same approach whereby the explicit ban on political strikes is repealed but the implicit prohibition maintained in order to achieve the same outcome. The Committee welcomes that Act No. 6356 did not include the previously considered ban on strike action in the aviation sector and no longer contains an explicit ban of strikes called for political purposes, general strikes or solidarity strikes. It notes, however, that article 54(1) of the Turkish Constitution provides that the right to strike of workers is linked to a dispute during the collective bargaining process, and that section 58(2) of Act No. 6356 stipulates that a lawful strike means any strike called by workers in accordance with this law with the object of safeguarding or improving their economic and social position and working conditions, in the event of a dispute during negotiations to conclude a collective labour agreement. The Committee has consistently considered that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests. The Committee recalls that a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association [see Digest, op. cit., paras 531 and 538]. It therefore requests the Government to review together with the social partners concerned the relevant legislative and constitutional provisions with a view to ensuring that they are brought into harmony with the principles of freedom of association.
6. 649. The Committee further notes that, while the complainants are satisfied that the heavy criminal sanctions for calling or participating in unlawful strikes contained in Act No. 2822 have been revoked, they still consider the fines prescribed by section 78(1) of Act No. 6356 to be excessive (fine of TRY700) for a worker participating in an unlawful strike, that is 50 per cent of the average monthly wage; and fine of TRY5,000 for a union for calling an unlawful strike), and the scope for levying them overly broad. The Committee welcomes that the excessive penal sanctions (including imprisonment and hefty fines) for calling or participating in unlawful strikes contained in Act No. 2822, which had been criticized previously, have not been replicated in Act No. 6356. In view of the complainants’ claim of the continued excessiveness of the fines, and in the absence of any observations from the Government on this matter, the Committee, recalling that such sanctions should only be imposed as regards strikes which violate prohibitions which are themselves in conformity with the principles of freedom of association, requests the Government to consider reviewing these provisions with the social partners concerned. As regards the enterprise-initiated criminal complaint, which was denounced by the complainants, claiming damages worth $4 million from Hava-İş for organizing an allegedly unlawful strike, the Committee, while noting that the complaint had been considered unfounded by the Ministry, recalls that the CEACR previously noted with interest that article 54(3) of the Turkish Constitution providing for trade union liability for any material damage caused during a strike had been repealed. The Committee expects that any fines that could be imposed against trade unions for unlawful strikes will not be of an amount that is likely to lead to the dissolution of the union or to have an intimidating effect on trade unions and inhibit their legitimate trade union activities, and trusts that the Government would endeavour to resolve such situations by means of frank and genuine social dialogue.
7. 650. The Committee notes the additional allegations of the complainants submitted by communication dated 25 July 2013 concerning the measures taken by the Government and the enterprise following the strike action called by Hava-İş on 15 May 2013 due to the failure of the enterprise to reinstate or compensate the dismissed workers as ordered by the courts and the initially unsuccessful negotiations of the new collective bargaining agreement. Deeply regretting that the Government has not replied to the allegation concerning the excessive police presence during the strike, the Committee urges it to provide its observations in this regard without delay. the Committee emphasizes that the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order; the intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order [see Digest, op. cit., para. 647]. With respect to the alleged recourse to the use of labour drawn from outside the undertaking during the strike, the Committee notes the Government’s indication that: (i) the union brought the matter before the court alleging that the employer had violated sections 65 (“Workers excluded from taking part in a lawful strike or lock-out”) and 68 (“Prohibition of recruitment or other employment”) of Act No. 6356; (ii) after having evaluated the expert report certifying that other workers had been employed instead of the workers participating in the strike, the court decided to cease the employment of other workers via precautionary measure; and (iii) the ruling was appealed and subsequently reversed. Recalling that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association [see Digest, op. cit., para. 632], the Committee requests the Government to provide a copy of the appeal court’s decision and information on the reasons given for reversing the ruling of the Istanbul Labour Court. It also requests the Government to ensure in the future the respect of the principles enounced above.