Report in which the committee requests to be kept informed of development - REPORT_NO334, June 2004

1. 722. The Committee examined this case at its March 2003 meeting and presented an interim report to the Governing Body [330th Report, paras. 1077-1105, approved by the Governing Body at its 286th Session (March 2003)].
2. 723. The Government sent two communications, dated 10 September 2003 and 9 March 2004, respectively, to submit its observations following the Committee’s interim conclusions and recommendations.
3. 724. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 725. The Committee recalls that the case relates to the application of Conventions Nos. 87, 98 and 151, both in law and practice, to civil servants, following the entry into force of Act No. 4688 relating to public servants’ trade unions. The factual allegations raise in essence a general issue of anti-union discrimination against the complainants, their members and officers.
2. 726. More specifically, the Confederation of Public Employees Trade Unions (KESK) questioned the conformity of some of the provisions of Act No. 4688 with Conventions Nos. 87, 98 and 151 [see 330th Report, para. 1080]. Further, KESK alleged acts of anti-union discrimination committed against members and officers of its constituent unions as well as workers participating in their activities. These acts mainly consisted of transferring these public employees, against their will, from one duty station or workplace to another; they also consisted of initiating court actions against some of them. The Committee recalls that three groups of public employees allegedly suffered anti-union discrimination: (i) 107 officers and members of the Health Workers’ Union (SES), affiliated to KESK, as well as workers who participated in the union’s activities; (ii) 30 members and officers of EGITIM-SEN, the education union affiliated to KESK, the majority of whom were also subject to court actions by the administration; and (iii) 13 officers and members of affiliated unions who were subject to a number of penalties such as imprisonment, administrative sanctions and refusal of promotion [see 330th Report, para. 1083]. KESK also alleged that both the Office of Agricultural Products and Türk TELEKOM displayed favouritism towards some unions to the detriment of its constituent unions [see 330th Report, paras. 1081 and 1082].
3. 727. The Committee recalls that, for its part, the Independent Public Works and Construction Employees’ Union (BAGIMSIZ YAPI-IMAR SEN) submitted that its members were subject to pressure from officials of the Ministry of Construction and Housing and the Surveying Office to resign from the union; these officials also threatened workers who considered joining the union [see 330th Report, para. 1084]. The complainant alleged that the workers concerned were told that these acts were in pursuance of orders from the hierarchy. The Independent Transport Union (Railways, Airports, Sea and Land Transport Services Public Employees) (BAGIMSIZ ULASIM-SEN) contended that officials of the Turkish State Railways subjected officers and members of the union to acts of intimidation and pressure. It also submitted specific allegations in relation to three employees of the Mersin Port Operations - i.e. Mr. Nazmi Vural (chief of terminal services and founding member of the union), Mr. Mehmet Yildiz (head tally clerk) and Mr. Okan Nar (specialist and president of the union) - and referred to an investigation carried out by the Ministry of Transport in this respect.
4. 728. The Government only replied to the legislative aspects of the complaints, although it confirmed that the Ministry of Transport had initiated an investigation into the allegations of anti-union discrimination in the Mersin Port Operations.
5. 729. At its 286th Session, in light of the interim conclusions of the Committee, the Governing Body approved the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures so as to amend Act No. 4688 to fulfil its obligations deriving from the provisions of Conventions Nos. 87, 98 and 151, including measures to ensure an effective protection of public servants against acts of anti-union discrimination.
   • (b) Concerning the particular allegations of favouritism relating to the establishment of an Institution Administrative Committee in Türk TELEKOM and the distribution by the Office of Agricultural Products of membership forms in favour of Türk Tarim-Orman Sen union, the Committee requests the Government to take any appropriate steps to ensure that all the unions are treated on an equal footing and that the workers concerned may freely choose the union they wish to join. The Committee requests the Government to answer to the allegations, in particular by describing any measures taken in this respect.
   • (c) The Committee requests the Government to promptly institute independent inquiries in the following individual cases, in order to establish whether the workers concerned have been adversely affected in their employment by reason of their legitimate trade union activities and, if so, to take suitable measures to remedy without delay any effects of anti-union discrimination:
   • (i) the 107 cases concerning members, officers of the Health Workers’ Union (SES) and workers participating in its activities;
   • (ii) the 30 cases concerning members or officers of EGITIM-SEN;
   • (iii) the 13 cases of workers mentioned in the third list submitted by KESK in its complaint.
     • The Committee requests the Government to answer the allegations made in all these individual cases, in particular by indicating any developments relating to the corresponding investigations.
   • (d) Regarding the allegations concerning the three employees of the Mersin Port Operations - i.e. Mr. Nazmi Vura (chief of terminal services), Mr. Mehmet Yildiz (head tally clerk) and Mr. Okan Nar (specialist) - the Committee requests the Government to answer the allegations relating to these three cases, in particular by indicating the results of the investigation of the Ministry of Transport as well as any subsequent measures taken. Moreover, concerning the allegations of anti-union discrimination on the part of officials of the Ministry of Construction and Housing and of the Surveying Office and officials of the Turkish State Railways, the Committee requests the Independent Public Works and Construction Employees’ Union (BAGIMSIZ YAPI-IMAR SEN) and the Independent Transport Union (Railways, Airports, Sea and Land Transport Services Public Employees) (BAGIMSIZ ULASIM-SEN) to submit any additional information they consider useful.

B. The Government’s new observations

1. 730. In its communication of 10 September 2003, the Government underlines that all the necessary information has already been provided in its previous communications and states that the Committee will be kept informed of any developments. Emphasizing that the definite rules on freedom of association in the public service are set out in Act No. 4688, the Government indicates that developments in this field are closely followed both by the Prime Minister and the Ministry of Labour and Social Security with a view to ensuring the full enforcement of the law. With regard to the cases of the members of the Health Workers’ Union (SES) and of the Trade Union of Public Servants of the Education Sector (EGITIM-SEN), the Government states that the office of the public prosecutor handed down decisions whereby the charges were withdrawn.
2. 731. In its communication of 9 March 2004, the Government makes further observations and, in support thereof, attaches a number of documents. With respect to the legislative issues of the case, the Government provides a copy of Circular No. 25136, dated 12 June 2003 on the application of Act No. 4688, as well as a copy of the draft bill on amendments to the Trade Unions Act No. 2821.
3. 732. With regard to the allegations concerning factual issues, the Government states that the Ministry of Labour and Social Security has never received any complaint in respect of the following allegations:
   • - the 13 workers mentioned in the third list submitted by KESK in its complaint;
   • - the allegations of favouritism relating to the establishment of an institution administrative committee in Türk TELEKOM; and
   • - the distribution by the Office of Agricultural Products of membership forms in favour of Türk Tarim-Orman Sen union.
4. 733. Regarding the members of the Health Workers’ Union (SES) and of the Trade Union of Public Servants of the Education Sector (EGITIM-SEN), the Government reiterates that public prosecutors decided to withdraw the charges. The Government indicates that copies of the corresponding decisions are attached to its reply and numbered as Annexes 5, 6, 7, 8 and 9. The documents submitted in the original language, with signatures and official stamps, have been translated and can be summarized as follows.
5. 734. The first decision is signed by the public prosecutor of the Office of the Attorney General of the Republic in Ankara. It bears the reference number 2002/656 and designates the defendants as being "members of the executive committee of the Education, Knowledge and Cultural Union of Retired Persons". The date of the offence is "29.3.2002 and before". It appears that reference in the statutes of the union to "mother tongue education" was considered to be illegal by the Amasya public prosecutor. This decision was overturned by the public prosecutor in Ankara. The latter decided that there was insufficient evidence to bring a case against the members of the union executive committee.
6. 735. The second decision, dated 24 January 2003, has been issued under the signature of the public prosecutor of the Office of the Attorney General of the Republic of Turkey in Balikesir. It bears the reference number 2003/208 and designates the defendant as being "Mehmet Aslan and 65 friends". The offence is described as a "meeting held without permission" and as occurring on 10 January 2003 in front of the building of the Balikesir branch of EGITIM-SEN. It appears that 65 persons participated in this meeting, the purpose of which was to protest against the one-month suspension of two students by the administration of the university. The public prosecutor decided that no charges would be pressed against the defendants.
7. 736. The third decision, dated 18 April 2003, is a decision of the "Heavy Penal Court" under the signatures of "clerk 380" and "Minister 29996", bearing the reference number 2003/239 MÜT. This decision in fact confirms the decision of the public prosecutor of Balikesir described in the previous paragraph not to prosecute the defendants.
8. 737. The fourth decision is a decision of the public prosecutor of the Office of the Attorney General, in Balikesir, bearing the reference number 2003/43 and addressed to the Regional Office for Labour and Social Security in Bursa. Mr. Necmettin Karakus, the "informant", appears to have claimed that irregularities were committed within the Health Union of Retired Persons. In particular, it was alleged that the president of the union, Mr. Tamer Özcan, arranged a meal in a hotel without a decision of the executive committee and that he withdrew money under a falsified signature. The public prosecutor took a "decision of equitable abstention" in relation to these claims, in view of the administrative and financial audit to be carried by the Ministry of Labour and Social Security on 17 September 2003.
9. 738. The fifth document is a communication, dated 25 March 2002, of the Office of the Director of Security and concerns the decision of the public prosecutor of Diyarbakir "State Security Court" in relation to the general committee meeting held by the Bingöl branch of EGITIM-SEN. It bears the reference B.05.1.EGM.4.12.00.12.02/1718. During this meeting, posters, with the legends "Mother tongue is a right - it may not be impeded" and "Mother tongue education does not divide - it unifies”" were displayed. It appears that the Office of the Director of Security considered that the legends were illegal and submitted the matter to the public prosecutor of the province in a letter of 6 February 2002. The public prosecutor took a decision on 7 March 2002 not to press charges against the officers of the union, as these slogans appeared in union statutes duly approved by the Ministry of Labour and Social Security.
10. 739. With respect to the allegations concerning the three employees of the Mersin Port Operations - Mr. Nazmi Vural, Mr. Okan Nar (chairperson of BAGIMISIZ ULASIM-SEN) and Mr. Mehmet Yildiz - the Government indicates that the chairperson of BAGIMIZ ULASIM-SEN submitted a complaint, dated 16 May 2002, to the Office of the Prime Minister. Inspectors of the Ministry of Transport investigated the allegations and the Director of Mersin Port Operations, Mr. Kenan Sen, was found to be guilty of exerting pressure on trade union members. As a result, a sanction of warning was applied to him and recorded in his personal file on 30 September 2002.
11. 740. The Government has attached a copy of a letter of the president of the committee of inspectors bearing the reference number B.11.2.DDY.0.60.00.00/1450. This letter summarizes the findings of the investigation carried out by the inspectors. It seems that the matter arose from Mr. Okan Nar’s resignation from the Turkish Communication Union and his subsequent establishment, with Mr. Nazmi Vural and Mr. Mehmet Yildiz, of the Independent Transport Union. They were threatened with transfer to other duty stations, although it seems that these threats were not carried out. Nevertheless, the inspectors established that three members of the Independent Transport Union resigned, including Mr. Memet Yildiz, because of the hostility displayed by the head of the port authority, Mr. Kenan Sen, towards the new union; indeed, a member of the Turkish Communication Union witnessed examples of such hostile behaviour. The inspectors concluded, therefore, that there was some justification to the claim that the head of the port authority had shown hostility towards the new union and exerted pressure on its members to resign.
12. 741. Mr. Nar was suddenly deprived of an office, assigned to him while he was the administrative head of the Turkish Communication Union, immediately following his resignation from the latter union and at the time he was participating in the creation of the Independent Transport Union. The inspectors considered that this action was carried out for anti-union reasons and did not rest on sound grounds. The inspectors noted also that the head of the port authority had exerted pressure on officials, for anti-union reasons, not to deliver medical certificates to Mr. Okan Nar and Nazmi Vural.
13. 742. In these circumstances, the inspectors concluded that the head of the port authority displayed favouritism towards one union to the detriment of the Independent Transport Union and thereby demonstrated discrimination towards the founders and the members of this latter union. The inspectors were of the opinion that such behaviour was in contravention of Act No. 4688, Act No. 2821, the Prime Ministerial Circular No. 2002/17 and Conventions Nos. 87 and 151. The inspectors recommended that the sanction of a reprimand be applied to the head of the port authority. Should such behaviour persist, the inspectors recommended that he be assigned to other functions at a different duty station.
14. 743. In the absence of concrete evidence to support the claim that such anti-union behaviour was based on instructions coming from the Minister, the inspectors decided that no further action was required in this respect.
15. 744. The Government provides a copy of what appears to be the notification of the sanction by the Minister for Port Administration to the head of the Mersin Port Operations. This notification was duly acknowledged and signed by the latter. The decision of sanction was taken on 18 September 2002, notified on 23 September and filed on 30 September 2002.

C. The Committee’s conclusions

1. 745. The Committee recalls that, during in its last examination of the case, it requested the Government’s observations on the factual issues of the complaint in order to examine them on their merits. Since the Government also refers, albeit briefly, to the legislative issues of the complaint, the Committee will first address this matter before reviewing in turn each of the factual allegations submitted.
2. 746. The Committee recalls that, while Act No. 4688 represented at the time it was adopted an important step towards the recognition of public employees’ trade union rights, the ILO supervisory mechanisms have highlighted a number of discrepancies between the provisions of the law and that of Conventions Nos. 87, 98 and 151. During its previous examination of the case, the Committee underlined some of the issues raising problems of compatibility with these Conventions, recalling at the same time the relevant principles of freedom of association [see 330th Report, paras. 1095 to 1098]. These issues were the following: the exclusion of certain categories of public employees from the scope of Act No. 4688 and therefore from the right to organize (sections 3(a) and 15); the suspension and termination of a union officer’s mandate in case of candidacy to local or general elections (section 10); the right to bargain collectively (section 28); and the absence of recognition of the right to strike of public servants who are not exercising authority in the name of the State and who cannot be considered to be carrying out essential services in the strict sense of the term. Further, the Committee pointed out that sections 14 and 30 of Act No. 4688 did not contain sufficient guarantees to ensure a fully objective determination of the most representative union [See 330th Report, para. 1098]. Finally, the Committee emphasized that legislative measures should be taken to ensure an effective protection of public servants against all acts of anti-union discrimination [see 330th Report, paras. 1101 and 1102].
3. 747. The Committee is aware that the Government is currently carrying out a number of legislative reforms in relation to freedom of association and collective bargaining, an example of which is the draft bill on amendments to the Trade Unions Act No. 2821 provided by the Government as an attachment to its communication of 9 March 2004. The Committee further understands that a process is taking place to amend Act No. 4688; that specific amendments have been considered; and that a draft bill is currently being developed. However, the Committee has not received from the Government any confirmation in this respect let alone the exact wording of a text purporting to amend Act No. 4688.
4. 748. The Committee trusts that amendments to Act No. 4688 will ensure public employees’ rights to freedom of association and collective bargaining in a manner consistent with Conventions Nos. 87, 98 and 151 and the principles of freedom of association recalled in its previous examination. Bearing in mind that a process to amend Act No. 4688 is under way and that it is part of a more general reform process, the Committee requests the Government to provide the relevant texts amending Act No. 4688, in compliance with its obligations to the ILO supervisory mechanisms.
5. 749. With respect to the factual allegations, the Committee notes that the Government has replied neither to the allegations of favouritism within Türk TELEKOM and the Office of Agricultural Products, nor to the allegations of anti-union discrimination in respect of 13 members and officers of unions affiliated to KESK. The Government limits itself to observing that the Ministry of Labour and Social Security has never received any complaint in this respect. The Committee regrets that the Government has ignored the specific recommendations made by the Committee on these allegations during its previous examination. Further, the Committee wishes to recall that its competence does not depend on prior exhaustion of any domestic remedies.
6. 750. In these circumstances, the Committee must recall, once again, the following principles with respect to the allegations of favouritism. By according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization they intend to join; in addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that public authorities should refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise. On more than one occasion, the Committee has examined cases in which allegations were made that public authorities had, by their attitude, favoured or discriminated against one or more trade union organizations. Any discrimination of this kind jeopardizes the right of workers set out in Convention No. 87, Article 2, to establish and join organizations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 304 and 306]. The Committee urges the Government therefore to examine without delay the allegations on the establishment of an institution administrative committee in Türk TELEKOM with the participation of Türk Haber-Sen and the distribution by the Office of Agricultural Products of membership forms in favour of Türk Tarim-Orman Sen union, including any concomitant acts of anti-union discrimination that might have occurred. The Committee urges the Government to take the necessary steps to ensure that all unions are treated on an equal footing and that the workers concerned may freely choose the union they wish to join. The Committee requests the Government to keep it informed of any developments in this respect.
7. 751. As concerns the allegations of anti-union discrimination, the Committee will first examine those relating to the Health Workers’ Union (SES) and the Trade Union of Public Servants of the Education Sector (EGITIM-SEN), including the case of the 13 workers mentioned above, as they all raise similar questions.
8. 752. As a preliminary step, the Committee wishes to highlight the following elements of the allegations relating to SES and EGITIM-SEN. First, allegations concerning SES referred to acts of anti-union discrimination consisting only of public employees’ transfers to different duty stations or workplaces; there was no mention of any court action having been initiated against these public employees. By contrast, allegations concerning EGITIM-SEN referred to acts of anti-union discrimination consisting of public employees’ transfers as well as of court actions having been brought against some of these workers. Second, KESK submitted a list of 107 workers who were involved in trade union activities with SES, either as members or officers of the union or as workers who participated in union activities without apparently being affiliated, whereas the list concerning EGITIM-SEN, covered 30 workers who were members or officers of the union. In both cases, the lists specified the workers’ name and occupation, and their union responsibilities; they also indicated the original city and the workplace of each of these workers and the city or workplace to which they had been transferred. Third, KESK indicated that the alleged acts of anti-union discrimination, relating to SES occurred in the course of the last six months preceding the complaint, that is between December 2001 and May 2002, since the complaint is dated 28 May 2002. No time frame was specified in respect of the alleged acts of anti-union discrimination concerning EGITIM-SEN but these presumably had occurred before 28 May 2002.
9. 753. In light of the above, the Committee first notes that the Government refers only to charges which have been withdrawn by public prosecutors and that it does not address the question of the transfers to other duty stations or workplaces allegedly based on anti-union grounds. Further, the Committee notes that with respect to the allegations concerning SES, the Government has only provided one decision concerning an officer of the union. This leaves the 106 other cases unanswered.
10. 754. Moreover, in the Committee’s view, questions arise as to whether the documents provided by the Government relate indeed to the cases submitted by KESK, as they differ in many ways. In this respect, the Committee stresses in particular the following considerations. First, the one decision transmitted by the Government and relating to an officer of SES refers to a court action while KESK never alleged that members and officers of SES had been subject to court actions.
11. 755. Further, the Government has provided four decisions that refer to EGITIM-SEN. Two decisions of the public prosecutor concern the executive committee members of the union and the reference to "mother tongue" in the statutes of the union. In one of these decisions, dated 7 March 2002, the public prosecutor withdrew the charges pressed against trade unionists. In the Committee’s view, it seems unlikely that a case no longer subject to court action would have been mentioned in a complaint for anti-union discrimination lodged nearly three months after the public prosecutor’s decision had been rendered. The other two decisions linked with EGITIM-SEN refer to an offence committed on 10 January 2003 by 65 persons who participated in a meeting in front of the building of the Balikesir branch of EGITIM-SEN. The Committee notes that the date of the offence is subsequent to the date of the complaint lodged by KESK and thus could not have been raised by the complainant organization.
12. 756. In light of the above, the Committee observes that the Government’s observations are incomplete and that the differences highlighted above cast doubts as to whether the evidence provided relates to the allegations submitted by KESK and under consideration here. This is all the more regrettable as the allegations relate to events which occurred two years ago and which, if proven, may have serious consequences for the individuals concerned. In these circumstances, the Committee must recall that governments should recognize the importance for their own reputation of formulating detailed replies to the allegations brought by the complainant organizations, so as to allow the Committee to undertake an objective examination [see Digest, op. cit., para. 20]. Given the incomplete nature of the Government’s observations as well as the numerous differences between its evidence and the allegations submitted, the Committee trusts that the Government will fully cooperate in the future with the procedure before the Committee.
13. 757. In light of the above, the Committee must recall the following principles:
    • - no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities [see Digest, op. cit., para. 690];
    • - protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular, transfers, downgrading and other acts that are prejudicial to the workers [see Digest, op. cit., para. 695];
    • - protection against acts of anti-union discrimination is particularly desirable in the case of trade union officials to enable them to perform their trade union duties in full independence [see Digest, op. cit., para. 724];
    • - the government is responsible for preventing all acts of anti-union discrimination and ensuring that workers subject to such treatment have access to means of redress which are expeditious, inexpensive and fully impartial [see Digest, op. cit., paras. 738 and 741];
    • - where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754].
14. 758. The Committee urges the Government to institute, without any further delay, independent inquiries in the following individual cases, in order to establish whether the workers concerned have been adversely affected in their employment by reason of their legitimate trade union activities:
    • (a) the 107 cases concerning members and officers of SES and workers participating in its activities;
    • (b) the 30 cases concerning members and officers of EGITIM-SEN;
    • (c) the 13 cases of workers mentioned in the third list submitted by KESK in its complaint.
15. 759. If it is established that these workers have been subject to anti-union discrimination, the Committee urges the Government to take all the necessary measures to remedy without delay any effects of anti-union discrimination. In particular, the Government should declare null and void transfers decided for anti-union reasons and should take immediate measures so that the workers concerned be returned to the positions they held before being transferred.
16. 760. Concerning the three employees of the Mersin Port Operations, the Committee notes that the Government has ordered an investigation by the inspectors of the Ministry of Transport; that these inspectors found that the head of the port authority took an anti-union approach in his dealing with the members and officers of the Independent Transport Union (Railways, Airports, Sea and Land Transport Services Public Employees) (BAGIMSIZ ULASIM-SEN); that, as a result, the Ministry of Transport applied a disciplinary sanction to this senior officer; that the sanction was recorded in his personnel file; and that there was no evidence to support the claim that the anti-union behaviour was based on instructions from the Minister. The Committee notes that the anti-union behaviour did not adversely affect the career of the workers concerned. The Committee is therefore satisfied that these three individual cases do not call for further examination.
17. 761. Finally, the Committee notes that the Independent Public Works and Construction Employees’ Union (BAGIMSIZ YAPI-IMAR SEN) and the Independent Transport Union (Railways, Airports, Sea and Land Transport Services Public Employees) (BAGIMSIZ ULASIM-SEN) have not submitted any further information to specify the general allegations of anti-union discrimination on the part of officials of the Ministry of Construction and Housing and of the Surveying Office and officials of the Turkish State Railways. The Committee considers therefore that these allegations do not call for further examination.