Effect given to the recommendations of the committee and the Governing Body - REPORT_NO334, June 2004

Effect given to the recommendations of the Committee and the Governing Body

1. 67. The Committee last examined this case at its meeting in March 2003 [see 330th Report, paras. 148-152]. The Committee recalls that the allegations in this case concerned the change of branch activity classification of the Pendik and Alaybey shipyards from "shipbuilding" to "national defence", which resulted in the loss of representation rights for the Dok Gemi-Is trade union on behalf of workers involved [see 327th Report, paras. 838?839]. At this point it should also be recalled that section 3 of Act No. 2821 on trade unions provides that trade unions may be formed at industrial level by workers employed in establishments in the same branch activity. Under section 4, the branch of activity covering an establishment is to be determined by the Ministry of Labour and Social Security, and the parties concerned may appeal the decision to the competent courts.
2. 68. Allegations of anti-union discrimination were also raised and more specifically: (a) allegations of the impending dismissal of 1,100 workers of the Haliç and Camialti shipyards, virtually all of whom were alleged to be Dok Gemi-Is members; (b) allegations of harassment and intimidation of Dok Gemi-Is members by management of the Pendik and Alaybey shipyards, including the dismissal of the maximum number of workers allowed by law (nine per month), and the dismissal of some 200 workers at the ship-scrapping site at Aliaga the day after they had agreed to join the Dok Gemi-Is union [see 327th Report, para. 845].
3. 69. The case was first examined by the Committee at its session in March 2002. In the course of its last two examinations at its meetings in November 2002 and March 2003, the Committee expressed deep regret at the Government’s unwillingness to give effect to the recommendations of the Committee on these allegations, and in particular to: (a) take the necessary measures so as to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards and to ensure that any lost membership in this union as a result of the classification of these shipyards as falling within the national defence be immediately restored; (b) to institute independent investigations into all the allegations of anti-union discrimination and to take the necessary remedial steps if these allegations are proven to be true.
4. 70. The Government sent a first communication dated 10 September 2003 in which it pointed out that the necessary information was given in its previous responses on the case. In a second communication of 9 March 2004, the Government recalled that Dok Gemi-Is had asked for the determination of the branch of activity under which Pendik and Alaybey shipyards should be classified, in accordance with section 4 of Act No. 2821. Following the examination of this demand, it was decided that these shipyards fell into the national defence branch of activity. This decision was promulgated in the Official Gazette and subjected to an objection by Dok Gemi-Is. The labour court rejected this objection and its decision was upheld by the Supreme Court. Once the classification procedure had been completed, the workers employed in the Pendik and Alaybey shipyards could exercise their right to freedom of association by becoming members of Türk Harb-Is Sen. The Government pointed out that all the administrative actions and decisions were taken in accordance with Act No. 2821 on trade unions and Act No. 2822 on collective agreements, strike and lockout and had been reviewed by the competent courts.
5. 71. Concerning the allegations of anti-union discrimination, the Government indicated that it received a communication from the lawyer of Dok Gemi-Is submitting an appeal to the Ministry of Labour and Social Security concerning the dismissals of workers from the Pendik shipyard. This appeal was sent to the Ministry of National Defence; the Government has provided a copy of a letter confirming this transmission. The Government has also attached a copy of the reply of the Ministry of Labour and Social Security to Dok Gemi-Is’ lawyer. In this letter, the Ministry indicates in particular that the issue of the dismissals has been forwarded to the Ministry of National Defence. The Government underlined that Dok Gemis-Is did not submit any appeal on other issues; therefore, no other investigation was carried out. The Government explained that under article 91 of the new Labour Law No. 4857, which entered into force on 10 June 2003, complaints for infringements of the labour legislation are investigated by the labour inspectors of the Ministry of Labour and Social Security (MLSS).
6. 72. With respect first to the organizational and representational rights of workers affiliated to Dok Gemis-Is, in view of the Government’s observations, the Committee must underline that neither the application of the national legislation with respect to the classification of two shipyards in the national defence sector nor the exercise of freedom of association in respect of Türk Harb-Is Sen are at issue in the present case. The core question is the compatibility of the legal provisions concerning such classification, and its impact in respect of Dok Gemis-Is trade union and its members, with the Conventions relating to freedom of association ratified by Turkey. The Committee recalls once again that it had found that "the classification of the Pendik and Alaybey shipyards as part of the national defence sector, with the resulting loss of trade union membership and representation, constitutes a violation of both the organizational and the representational rights of the workers affiliated to Dok Gemi-Is, in contravention of Convention No. 87 (ratified by Turkey)" [see 327th Report, para. 844]. In this respect, the Committee must underline once again that the Committee of Experts on the application of Conventions and Recommendations has raised questions about the criteria on which the Ministry of Labour determines that a worksite belongs to a particular branch of activity under section 4 of Act No. 2821; in particular, that Committee considered that the classification and its modification should be determined "according to specific, objective and pre-established criteria". Noting that, two years after its first examination of the case, the Government still refuses to take the measures recommended by the Committee, the Committee firmly urges the Government to give effect to its recommendations and more specifically, to take the necessary steps to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards and to ensure that any resulting lost membership in the Dok Gemi-Is trade union be immediately restored. The Committee requests the Government to keep it informed in this respect.
7. 73. Turning to the allegations of anti-union discrimination, the Committee notes that the Government seems to consider that it can only act when allegations of anti-union discrimination are submitted directly to governmental authorities. This is not the first time that the Government has recourse to such an argument, ignoring the allegations identified by the Committee and its recommendations in its successive reports and, in particular, the institution of independent investigations into the allegations of anti-union discrimination. The Committee recalls in this respect that complaints of anti-union discrimination should be examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned who should participate in the procedure in an appropriate and constructive manner [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 738 and 750]. The Committee trusts that the Government will also bear in mind this principle when tackling the allegations that have been submitted to the Ministry of Labour by Dok Gemi-Is and referred to the Minister of Defence. The Committee once again urges the Government to institute independent investigations without delay into each of the allegations of anti-union discrimination raised in the present case and, if these allegations are proven, to take all the necessary remedial steps, including reinstatement, without loss of pay, in their jobs of workers dismissed or adequate compensation for damages suffered by those dismissed.
8. 74. In view of the above, the Committee must solemnly express its concern over the absence of progress made to give effect to its recommendations in this case since its first examination two years ago. This is all the more regrettable as the events raised in the complaint occurred more than four years ago and any infringements to freedom of association, which might have occurred at the time, may have by now irreversible effects. The Committee expects the full cooperation of the Government in the future, with a view to fulfil its commitments undertaken by ratifying Conventions Nos. 87 and 98.