Report in which the committee requests to be kept informed of development - REPORT_NO338, November 2005

1258. The complaint is contained in a communication from the Petroleum, Chemical and Rubber Industry Workers’ Union of Turkey (LASTIK-IS) dated 22 March 2004 and a communication by the Confederation of Progressive Trade Unions of Turkey (DISK), dated 22 March 2004.

1. 1259. The Government replied in communications dated 6 January and 25 July 2005.
2. 1260. 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. 1261. In a communication dated 22 March 2004, the Petroleum, Chemical and Rubber Industry Workers’ Union of Turkey (LASTIK-IS) stated that its activities had been centred in the tyre industry, dominated by large multinational companies like Goodyear, Bridgestone and Pirelli. Since December 2004, on behalf of some 4,000 workers, LASTIK-IS had been negotiating with these three companies for a new agreement covering the years 2004-05. During the meetings, it observed that the employers had neither good will nor intention to reach an agreement, always trying to coerce LASTIK-IS to agree to their unacceptable demands after having taken a guarantee from the Government that it would use its authority to ban an eventual strike. Under these circumstances, considering that these demands could not be accepted, the Executive Committee of LASTIK-IS, which had made every effort to solve the dispute, decided to go on strike at the three multinationals beginning at the Pirelli plant on 22 March 2004. However, the Government once again used its right to “suspend”, which meant in fact to ban, the strike at the three companies by a Decree published in the Official Journal dated 21 March 2004. The Decree, signed by the President, the Prime Minister, the Labour Minister and other members of the Council of Ministers, claimed that the strike in the tyre industry was going to be a threat to national security. LASTIK-IS attached a copy of the Official Journal of 21 March 2004 and a translation of Decree No. 2004/6998, which reads as follows:
2. … it is hereby decided that the strike decisions taken by the Petroleum, Chemical and Rubber Industry Workers’ Union of Turkey (Lastik-Is) at the workplaces of Türk Pirelli Lastikleri A.S., Goodyear Lastikleri T.A.S. and Brisa Bridgestone Sabanci Lastik Sanayii ve Ticaret A.S., and the lock-out decisions taken by the afore-mentioned companies, will be suspended for sixty days as of the date of 16/3/2004, as these are considered to violate national security, according to section 33 of Act No. 2822 of 5/5/1983.
3. 1262. LASTIK-IS added that, according to section 33 of the Collective Agreement, Strike and Lockout Act, any strike could be suspended for a 60-day period if it was deemed to endanger “public health” or “national security”. But “suspension” of a strike under this provision usually meant in practice an indefinite “ban” as section 34 of the same law empowered the Ministry of Labour and Social Security to impose compulsory arbitration at the end of the 60-day suspension, unless the parties had either come to an agreement or voluntarily sought arbitration. LASTIK-IS added that this was not the first time that a strike at the tyre industry had been banned. Other strikes had already been banned on 5 May 2000 and 12 May 2002. With the Decree of 21 March 2004, tyre workers could not exercise their right to strike guaranteed by Convention No. 87, ratified by the Government. LASTIK-IS was of the opinion that social dialogue and democratic industrial relations were very important tools in establishing social order and solving social problems. In this framework they expected from the Government to respect the fundamental human rights which included basic trade union rights, the right to association and collective bargaining on the basis of ratified ILO Conventions.
4. 1263. In a communication dated 22 March 2004, the Confederation of Progressive Trade Unions of Turkey (DISK), to which LASTIK-IS is affiliated, repeated the allegations sent by LASTIK-IS, recalling that the Government had already banned strikes by LASTIK-IS on two occasions in the past and had done the same in the glass industry. DISK also indicated that LASTIK-IS would appeal to the Council of State to cancel the Decree. The executive committees of DISK and their affiliate LASTIK-IS were also prepared to make official complaints to the European Commission, as the Decree was a clear violation of ILO Conventions and European legislation.
5. B. The Government’s reply
6. 1264. In a communication dated 6 January 2005, the Government indicated that, as mentioned in previous responses on the same issue (i.e. Case No. 2303), the required studies carried out by a Committee of Academics, established in agreement with the social partners, in order to amend the Collective Labour Agreement, Strike and Lockout Act No. 2822 and the Trade Unions Act No. 2821 were still under way so as to bring the legislation in line with the acquis communautaire of the European Union and ILO standards, and update it to reflect recent developments in the country.
7. 1265. The Government added that a copy of the Draft Bill amending Act No. 2822 had been sent to the ILO in April 2004 and had been previously attached to the Government’s reply relative to Case No. 2303. As already indicated on those occasions, new provisions which had been introduced to the first paragraph of section 33 of the Collective Labour Agreement, Strike and Lockout Act No. 2822 regarding the suspension of a strike, stipulated that “the Council of Ministers may issue a suspension order upon receiving the opinion of the Council of State on this question”.
8. 1266. The Government added that this provision was in fact cited in other international texts related to this subject. In articles 30 and 31 of the European Social Charter concerning “Derogations in Time of War or Public Emergency” and “Restrictions”, some principles and rights could be restricted in the public interest, or on grounds of national security, public health or public morals in line with the prescriptions of the law.
9. 1267. The Government added that the communications of Petroleum, Chemical and Rubber Industry Workers’ Union of Turkey (LASTIK-IS) and the Confederation of Progressive Trade Unions of Turkey (DISK) had been duly examined by the Ministry of Labour and Social Security. Upon the suspension of the strike by the Council of Ministers Decree, Professor Dr. Fevzi Sahlanan was once again designated by the Minister of Labour and Social Security as the Official Mediator for the resolution of the dispute. With the efforts and the supervision of the Minister of Labour and Social Security, the parties were convened before the Official Mediator on 12 May 2004 to carry on the consultations concerning the collective labour agreement. On 13 May 2004 a consensus was reached between the parties, as a consequence of which the collective labour agreement covering the period of 1 January 2004 to 31 December 2005 had already been concluded.
10. 1268. In a communication dated 25 July 2005, the Government provided an historical account of the dispute. According to the Government, LASTIK-IS had applied, on 8 September 2003, for a determination of its competence to conclude a collective labour agreement at the workplaces of Turk Pirelli A.S., Goodyear Lastikleri T.A.S. and Brisa Bridgestone Sabanci Lastik Sanayii ve Ticaret A.S. Upon determining that the trade union had the legally required majority, the General Directorate of Labour sent to the parties letters on the issue of competence and, as there was no objection against these letters within the legal time limit, a certificate of competence was given to the union in pursuance of section 16 of Act No. 2822. When the collective bargaining ended in dispute, the Regional Labour Directorate of Kocaeli appointed official mediators in the three workplaces. As an agreement could not be reached at that point, the trade union announced its decision to strike on 8 March 2004. Because this decision was considered as being prejudicial to national security, the Council of Ministers issued a Decree on 16 March 2004 to suspend the strikes for 60 days (published in the Official Gazette on 21 March 2004). Another official mediator was appointed in pursuance of section 34 of Act No. 2822. As a result of the mediation efforts of the Minister of Labour and Social Security assisted by the Official Mediator, the representatives of LASTIK-IS and the employers met on 12 May 2004 at the Ministry of Labour and Social Security. After the negotiations, the parties concluded collective labour agreements on 13 May 2004 for the period of 1 January 2004 to 31 December 2005.
11. 1269. The Government added that LASTIK-IS lodged an appeal before the 10th Chamber of the Council of State against the Decree of the Council of Ministers suspending the strike. The Council of State decided to suspend the execution of the Decree. An appeal lodged against this decision was rejected on 23 September 2004 by the Plenary of the Administrative Court Chambers of the Council of State. The Government appended copies of the collective agreements concluded between the parties and of the decision of the Council of State dated 23 September 2004 (Case No. 2004/387).

C. The Committee’s conclusions

1. 1270. The Committee observes that this case concerns allegations that the Government violated freedom of association principles by suspending for the third time in four years a strike in the tyre industry on the grounds that the strike would be a threat to national security.
2. 1271. In particular, the Committee notes from the complainants’ allegations that, by issuing Decree No. 2004/6998 of 21 March 2004, the Council of Ministers made use, for the third time in four years, of its authority under section 33 of the Collective Agreement, Strike and Lockout Act No. 2822, to suspend, which meant in fact to ban, a strike in the tyre industry on the grounds that the strike would be a threat to national security. According to the complainants, the Executive Committee of the Petroleum, Chemical and Rubber Industry Workers’ Union of Turkey (LASTIK-IS) had decided to go on strike as of 22 March 2004 in opposition to unacceptable demands by the employers. The latter are large multinational companies (Goodyear, Bridgestone, Pirelli) and had allegedly received guarantees from the Government that an eventual strike would be banned. According to the complainants, similar decrees banning strikes have been issued in other industries in the recent past. The Committee further notes that section 33 of the Collective Agreement, Strike and Lockout Act No. 2822 enables the Government to suspend any strike for 60 days if it is deemed to endanger “public health” or “national security”. However, “suspension” of a strike, according to the complainants, usually means in practice an indefinite ban, as section 34 of the same law empowers the Ministry of Labour and Social Security to impose compulsory arbitration at the end of the 60-day suspension, unless the parties have either come to an agreement or voluntarily sought arbitration.
3. 1272. The Committee observes that the Council of Ministers’ Decree No. 2004/6998 does not indicate the grounds on which a strike in the tyre industry was considered as prejudicial to national security. Moreover, the Government does not provide any reply to the allegations that it has repeatedly banned strikes in the tyre industry on grounds of national security. The Committee further notes from the Government’s reply that LASTIK-IS lodged an appeal before the 10th Chamber of the Council of State which decided to suspend the execution of the Decree. An appeal made against this decision was rejected on 23 September 2004 by the Plenary of the Administrative Court Chambers of the Council of State. However, in the meantime, as a result of the mediation efforts of the Minister of Labour and Social Security and the Official Mediator designated for the resolution of the dispute, the parties reached a consensus to conclude a collective agreement one day after they were convened to consultations (between 12 and 13 May 2004). Consequently, a collective agreement covering the period of 1 January 2004 to 31 December 2005 has already been concluded.
4. 1273. The Committee notes with regret that this is not the first case concerning Turkey which relates to allegations that the Council of Ministers decided to suspend a strike on grounds of national security, without any apparent relationship between the industries in question (tyre, glass, municipality services and state-run undertakings) and national security. The Committee recalls the conclusions and recommendations reached in Case No. 2303, according to which section 33 of Act No. 2822 was not in itself contrary to freedom of association principles, as long as it was implemented in good faith and in accordance with the ordinary meaning of the terms “national security” and “public health”; however, the repeated application of this section so as to prevent strikes in sectors such as glass and rubber, municipality services and state-run enterprises, which did not appear to have any direct connection to national security or public health, might amount to a systematic violation of the right to strike [see 335th Report, para. 1376].
5. 1274. The Committee emphasizes that, in general, a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of freedom of association principles. The Committee recalls however, that sections 21-23, 27, 28, 35 and 37 of Act No. 2822 require as a prerequisite for calling a lawful strike, a long waiting period of nearly three months from the start of negotiations, including an imposed period of compulsory arbitration of up to three weeks (section 23). The Committee further notes from the Government’s report that, in the present case, mediation had already taken place by official mediators appointed by the Regional Labour Directorate of Kocaeli before LASTIK-IS announced its decision to strike, as provided in the law. Thus, when the Government decided to suspend the strike for an additional 60 days and appointed another official mediator, even though mediation had already taken place, this decision constituted an extension of what can already be seen as an elaborate procedure provided in the law. The Committee further notes that the complainants make reference to section 34 of Act No. 2822 which provides that “if, on the expiry of the time limit fixed for the suspension, the parties have not been able to reach an agreed settlement or have not agreed to resort to private arbitration, the Minister of Labour and Social Security shall refer the dispute to the High Court of Arbitration for settlement”, and emphasizes that a “suspension” under sections 33-34 ultimately constitutes a banning of the strike, as they expect the Government to make use of its authority under section 34 to refer the dispute to compulsory arbitration.
6. 1275. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable in cases of acute national crisis and also if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 515 and 517]. The Committee emphasizes that automobile manufacturing does not constitute an essential service in the strict sense of the term [Digest, op. cit., para. 545] and considers that tyre manufacturing is part of the automobile industry and that workers in this industry should enjoy the right to strike without undue impediments. In general, to determine situations in which a strike could be prohibited, the criteria which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 540].
7. 1276. The Committee also considers that the imposition of a compulsory arbitration procedure beyond the abovementioned permissible restrictions raises problems in relation to the application of Convention No. 98, as it is contrary to the free and voluntary nature of collective bargaining. Provisions which establish that, failing agreement between the parties, the points at issue in collective bargaining must be settled by the arbitration of the authority are not in conformity with the principle of voluntary negotiation contained in Article 4 of Convention No. 98 [Digest, op. cit., para. 862].
8. 1277. Noting that a collective agreement has already been concluded for the period 2004-05 in the tyre industry as a result of the Official Mediator’s intervention, the Committee expresses regret at the Government’s systematic practice of ending collective disputes and precluding strikes on grounds of national security in sectors such as the tyre industry, which has no apparent link to national security and does not constitute an essential service in the strict sense of the term. The Committee requests the Government to refrain from this practice in the future and to ensure that strikes are not precluded in this manner, with the possible exception of essential services in the strict sense of the term, disputes in the public service involving public servants exercising authority in the name of the State or in an acute national crisis.
9. 1278. The Committee further notes that the Government refers in its reply to the ongoing work of a Committee of Academics established in agreement with the social partners in order to amend the Labour Agreement, Strike and Lockout Act No. 2822 and the Trade Unions Act No. 2821. The Committee notes that, as a result of the work carried out by the Committee of Academics, new provisions have been introduced in section 33 of Act No. 2822, stipulating that the Council of Ministers may issue an order to suspend a strike only upon receiving the opinion of the Council of State on this question.
10. 1279. The Committee recalls once again the conclusions and recommendations reached in Case No. 2303 on this issue. In particular, the Committee recalls that, in that case, a decision by the Council of State, which had rendered unenforceable a Council of Ministers’ Decree suspending a strike in the glass industry, had been overruled by a further Decree of the Council of Ministers suspending the strike once again; the Committee considered that, as the proposed amendments seemed to envisage a consultative role for the Council of State, they did not seem to constitute an improvement in relation to the current legislation on this point, and might even lead to a weakening of the role of the Council of State which, as seen above, currently has the power to review the decisions of the Council of Ministers and render them unenforceable. Consequently, the Committee recommended that responsibility for suspending a strike on the grounds of national security should not lie with the Government, but with an independent body which has the confidence of all parties concerned [see 335th Report, paras. 1376-1377].
11. 1280. The Committee notes that, in the present case, the Council of State once again ruled in favour of suspending the enforcement of Decree No. 2004/6998 pursuant to an appeal lodged by LASTIK-IS, and that the Plenary of the Administrative Court Chambers of the Council of State confirmed this decision on 23 September 2005. Nevertheless, and given the necessary delay before rendering such decisions, these rulings did not have any practical effect, as the parties had reached an agreement in the meantime. The Committee therefore observes from the information which is available to it that, when the judicial review of the Council of State diverged from the Government’s evaluation, the Government nonetheless resorted to an appeal, the resulting delay of which prevented any real effect of the judicial review in practice. In Case No. 2303 the Government had merely issued another contrary decision. Thus, although the Government’s practice of ending collective disputes and strikes on grounds of national security is subject to judicial review, its effectiveness might be mitigated.
12. 1281. The Committee finally notes the Government’s comments on the conformity of section 33 of Act No. 2822 with certain international instruments, which allow for certain rights to be restricted in the public interest, or on grounds of national security, public health or public morals. While the Committee considers, as it has indicated above, that the right to strike may be restricted or even prohibited for reasons directly linked to national security, the Committee must observe in this case and Case No. 2303, that the Government has apparently acted under the authority of this section without any indication as to the specific security or health concerns involved. The need to provide specific reasons justifying a Government’s decision may be even more present in cases such as this one, where the judicial authorities have not confirmed the Government’s evaluation of the situation.
13. 1282. In the particular circumstances of this case, the Committee therefore once again requests the Government to take all necessary measures with a view to modifying section 33 of Act No. 2822, so that responsibility for suspending a strike on the grounds of national security does not lie with the Government, but with an independent body which has the confidence of all parties concerned. The Committee requests the Government to keep it informed of developments in this respect.