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Report in which the committee requests to be kept informed of development - REPORT_NO373, October 2014

CASE_NUMBER 3021 (Türkiye) - COMPLAINT_DATE: 09-APR-13 - Closed

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Allegations: The complainant organization alleges that the Act on Trade Unions and Collective Bargaining Agreements (Act No. 6356) is not in compliance with Convention No. 98, in particular as regards the required thresholds for collective bargaining

  1. 471. The complaint is contained in a communication from the Union of Social Insurance, Education, Office, Commerce, Cooperative and Fine Arts Workers of Turkey (SOSYAL-IS) dated 9 April 2013.
  2. 472. The Government forwarded its response to the allegations in a communication dated 9 July 2014.
  3. 473. 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 complainant’s allegations

A. The complainant’s allegations
  1. 474. In a communication dated 9 April 2013, the complainant organization denounces the violation of the right to organize and the right to bargain collectively through the de authorization of SOSYAL-IS by the Act on Trade Unions and Collective Bargaining Agreements (Act No. 6356). The Act was enacted in Parliament on 18 October 2012 and came into force on 7 November 2012, by publication of the law in the Official Gazette.
  2. 475. The complainant indicates that section 41(1) of Act No. 6356 stipulates a branch of activity threshold of 3 per cent for unions to be competent to engage in collective bargaining. Provisional article 6 of the Act envisages that, for the unions affiliated to a Confederation represented in the Economic and Social Council (TÜRK-IS, HAK-IS and Confederation of Progressive Trade Unions of Turkey (DISK)), the applied branch of activity threshold will be 1 per cent from January 2012 to July 2016, 2 per cent from July 2016 to July 2018 and 3 per cent afterwards. The statistics published by the Ministry of Labour and Social Security on 26 January 2013 came into force on the date of publication. Due to its affiliation to DISK which is represented at the Economic and Social Council, SOSYAL-IS is applied the 1 per cent branch of activity threshold. However, SOSYAL-IS was not able to meet this requirement and hence lost its authority (competence) to engage in collective bargaining.
  3. 476. The complainant considers that the “branch of activity threshold” does not comply with Conventions Nos 87 and 98 and severely restricts the right to organize and bargain collectively, as shown by the following detailed analysis of the branch of activity threshold stipulated by Act No. 6356.

    1. Relevant provisions of Act No. 6356

    (a) The first two requirements to be entitled to bargain collectively

  1. 477. As in the previous law, Act No. 6356 allows establishment of unions on the basis of branch of activity and does not allow workers to organize in occupational unions or workplace unions. According to section 2(1)(ğ), the term “trade union” refers to the organizations having legal personality to carry out activities in a branch of activity established by the association of at least seven workers or employers in order to protect and promote their common economic and social rights and interests in labour relations.
  2. 478. In conjunction with the definition of “collective agreement” of Act No. 6356, this means that only trade unions established on the basis of branch of activity (which also meet the requirements envisaged by law) are entitled to bargain collectively. In other words, other workers’ organizations, federations, confederations and also trade unions established on the basis of occupation or workplace are not allowed to engage in collective bargaining. Section 2(1)(h) defines the term “collective labour agreement” as the agreement concluded between a workers ’ trade union and an employers’ trade union, or an employer who is not a member of any union, in order to regulate the matters with regard to the conclusion, content and termination of the employment contracts.
  3. 479. To sum up the first two legal necessities that shall be met to be competent to engage in collective bargaining are: (i) to be a trade union; and (ii) to be established on the basis of branch of activity.

    (b) The branch of activity threshold combined with the workplace/enterprise threshold

  1. 480. Although existence of a workers’ union established on the basis of branch of activity is a prerequisite for the right to bargain collectively, Act No. 6356 stipulates double numerical criteria to be met to allow a union to engage in collective bargaining: the branch of activity threshold and the workplace/enterprise threshold. Section 41(1) of the Act provides that the workers’ trade union representing at least 3 per cent of the workers engaged in a given branch of activity and more than half of the workers employed in the workplace and 40 per cent of the workers in the enterprise to be covered by the collective labour agreement shall be authorized to conclude a collective labour agreement covering the workplace or enterprise in question. Provisional article 6 of the Act sets out the transitional period mentioned above.
  2. 481. In other words, only the unions established on the basis of branch of activity meeting the branch of activity threshold are entitled to bargain collectively. All of these requirements shall be met together.

    (c) Statistics

  1. 482. Section 41(5) of the Act sets the instrument by the means of which the branch of activity threshold will be applied. It provides that the statistics published by the Ministry of Labour and Social Security in January and July of each year shall be the instrument used in calculating the percentage of the workers engaged in a given branch of activity. These statistics shall cover the total number of workers in each branch of activity and the number of members in the trade unions in that branch. The statistics published shall be valid until the publication of new statistics for the purposes of collective agreements and other formalities. The competence of a workers’ trade union that applied for or obtained a certificate of competence shall not be affected by the statistics subsequently published.

    2. Incomparability of the previous law and Act No. 6356 concerning the branch of activity threshold

  1. 483. Reserving its basic argument that not the percentage/level of the branch of the activity threshold but its existence contradicts with Conventions Nos 87 and 98, the complainant stresses that by reducing the branch of activity threshold from 10 to 3, Act No. 6356 neither complies with ILO Conventions nor meets the recommendations of the ILO. It elaborates on the reasons why the previous law and the current Act are not comparable concerning the branch of activity threshold.

    (a) The change in the system of statistics

  1. 484. The previous law, the Act on Collective Agreement, Strike and Lock-Out (No. 2822) was enacted in 1983 after the military coup. Although the earlier law which had been in force between 1963 and 1980 did not stipulate any branch of activity threshold, Act No. 2822 stipulated a 10 per cent branch of activity threshold to decrease the number of unions and to de facto liquidate the opposition unions, especially unions affiliated to DISK.
  2. 485. Act No. 2822 only partially succeeded in its aim since a healthy system to supervise the number of union members was not established and millions of workers whose membership to a union was ended were still considered as union members in the statistics published by the Ministry of Labour and Social Security. Moreover, the database of the Ministry of Labour and Social Security which did not reflect reality was taken into consideration and therefore the statistical number of workers engaged in different branches of activity was considerably lower than the real number of workers. Hence, despite the fact that almost all unions were under the branch of activity threshold, as a result of the unrealistic statistics, many unions were considered to exceed the branch of activity threshold and able to engage in collective bargaining.
  3. 486. According to the statistics published by the Ministry of Labour and Social Security in July 2009, 51 unions had met the 10 per cent branch of activity threshold in their respective branches of activity and the total number of union members was 3,232,679 out of 5,398,296 registered workers.
  4. 487. However, Act No. 6356 has changed the system of compilation of statistics by section 41(7) as follows: “In determining the authorized trade union and arranging the statistics, the Ministry considers the information sent to it as regards the membership and withdrawal from membership and the notifications made to the Social Security Institution on the workers”.
  5. 488. Since the notifications made to the Social Security Institution have been considered, the number of the union members has considerably declined in the January 2013 statistics. The Ministry of Labour and Social Security, using the database of the Social Security Institution, eliminated membership of millions of workers who were not currently employed in a workplace/enterprise in which the union that they were affiliated to was established. In other words, the Ministry of Labour and Social Security compared its database and the database of the Social Security Institution and if the union/member worker corresponded with an actual employment relationship in a workplace/enterprise in the relevant branch of activity, the Ministry of Labour and Social Security considered the membership valid and reflected the membership in the statistics; hence if there was no match, the membership was regarded as invalid and not reflected in the statistics.
  6. 489. In addition, since the number of registered workers was higher according to the database of the Social Security Institution, the number of workers in total and in each branch of activity has also considerably increased.
  7. 490. The change in general is illustrated in the following table:
    • 2009 July statistics (Act No. 2822)2013 January statistics (Act No. 6356)
      Number of union member workers3 232 6791 001 671
      Number of registered workers5 398 29610 881 618
      Percentage of unionization59.889.21
      >
  8. 491. The complainant concludes that the numerical/percentile decline in the branch of activity threshold from ten to three is not a real but a nominal change which does not lessen the requirement of branch of activity threshold and even increases it in some cases. Therefore it is not possible to compare the previous law and new law concerning branch of activity and the Government’s thesis that the decline of branch of activity complies with ILO Conventions is not true.

    (b) The combination of several branches of activities

  1. 492. The previous law set 28 branches of activities. Act No. 6356 combined some of them decreasing the number of branches of activities to 20 as follows:
    • – “Food industry” (No. 2) is composed of two different branches of activity which were “food industry” and “sugar”.
    • – “Textile, ready-made clothing and leather” (No. 5) is composed of two different branches of activity which were “textile” and “leather”.
    • – “Wood and paper” (No. 6) is composed of two different branches of activity which were “wood” and “paper”.
    • – “Printed and published materials and journalism” (No. 8) is composed of two different branches of activity which were “printing and publishing” and “journalism”.
    • – “Transport” (No. 15) is composed of three different branches of activity which were “land transportation”, “railway transportation” and “airway transportation”.
    • – “Shipbuilding and maritime transportation, warehouse and storage” (No. 16) is composed of three different branches of activities which were “shipbuilding”, “maritime transportation” and “warehouse and storage”.
  2. 493. As a result of the combination of several branches of activity, the number of workers employed in them considerably increased for the relevant unions and the decline of the branch of activity threshold from 10 to 3, rather than decreasing the minimum number of workers they have to organize, increased that minimum number of membership for many of them as illustrated in the following table:
    • Number of workers 2009 July statistics10 per cent thresholdNumber of workers 2013 July statistics3 per cent threshold
      Food industry371 09837 109520 91315 628
      Sugar industry26 5132 651520 91315 628
      Textile583 24458 324995 64029 869
      Leather92 6929 269995 64029 869
      Wood93 9089 390222 9816 689
      Paper36 1333 613222 9816 689
      Printing and publishing 48 8614 886104 1413 124
      Journalism15 3911 539104 1413 124
      Land transport 139 61613 961671 17920 135
      Railway transport 25 8382 583671 17920 135
      Airway transport 33 0053 300671 17920 135
      Shipbuilding16 5011 650143 7644 313
      Maritime transport 49 5094 950143 7644 313
      Warehouse, storage 32 8713 287143 7644 313
      >

    (c) Decrease in the number of unions competent to sign collective agreements

  1. 494. According to the statistics published by the Ministry of Labour and Social Security in July 2009 (valid until January 2012), there were 94 unions of which 51 were competent to sign collective agreements. Regarding the 51 competent unions; 45 unions were over the 10 per cent threshold and six unions operating in the “Hunting, fishery, agriculture and forestry” were automatically competent since that branch of business was exempt of branch of activity threshold.
    • Branch of businessUnionsConf.Number of membersNumber of membersNumber of workersNumber of workers20092013–162016–182018
      20092013200920131%2%3%
      (1) Hunting, Fishery, Agric., F.Orman-İş SendikasiTÜRK-IS55 10272496 682123 171OverUnder (-507)Under (-1 738) Under (-2 969)
      (1) Hunting, Fishery, Agric., F.Öz Tarim-İş SendikasiHAK-IS 669–96 682123 171Overn.a.n.a.n.a.
      (1) Hunting, Fishery, Agric., F.Tarim-İş SendikasiTÜRK-IS43 3379 95396 682123 171Over–OverOver
      (1) Hunting, Fishery, Agric., F.Emek Tarim-İş S.Indepen.3 141–96 682123 171Overn.a.n.a.n.a.
      (1) Hunting, Fishery, Agric., F.Birlik Orman-İş S.HAK-IS 10 367096 682123 171OverUnder (-1 231)Under (-2 462)Under (-3 693)
      (1) Hunting, Fishery, Agric., F.Öz Orman-İş SendikasiHAK-IS 25 12523 78096 682123 171OverOverOverOver
      (2) Food industryÖz Gida-İş SendiksiHAK-IS 74 67720 971371 098520 913OverOverOverOver
      (2) Food industryTek Gida-İş SendikasiTÜRK-IS191 64131 179371 098520 913OverOverOverOver
      (2) Food industryŞeker-İş SendikasiTÜRK-IS26 17515 66726 513520 913OverOverOverOver
      (3) Mining and quarryGMİSTÜRK-IS35 05311 418137 861186 698OverOverOverOver
      (3) Mining and quarryTürkiy e Maden-İş S.TÜRK-IS58 59124 201137 861186 698OverOverOverOver
      (4) Petroleum, Chemistry, Tyre, P.M.Petrol-İş SendikasiTÜRK-IS89 44227 392245 877466 031OverOverOverOver
      (4) Petroleum, Chemistry, Tyre, P.M.Lastik-İş SendikasiDISK42 9267 168245 877466 031OverOverUnder (-2 152)Under (-6 812)
      (5) Textile, garment and leatherTEKSİFTÜRK-IS338 83554 845583 244995 640OverOverOverOver
      (5) Textile, garment and leatherTekstilDISK76 23710 203583 244995 640OverOverUnder (-9 709)Under (-19 912)
      (5) Textile, garment and leatherÖz İp lik-İş SendikasiHAK-IS 90 06717 006583 244995 640OverOverUnder (-2 906)Under (-12 862)
      (5) Textile, garment and leatherDeri-İş SendikasiTÜRK-IS17 5941 80492 692995 640OverUnder (-8 152)Under (-18 108)Under (-28 064)
      (6) Wood and paperAgaç-İş SendikasiTÜRK-IS13 6972 44693 908222 981OverOverUnder (-2 012)Under (-4 241)
      (6) Wood and paperTümka-İş SendikasiDISK3 75759336 133222 981OverUnder (-1 636)Under (-3 865)Under (-6 094)
      (6) Wood and paperSelüloz İş SendikasiTÜRK-IS17 5243 26836 133222 981OverOverUnder (-1 190)Under (-3 488)
      (6) Wood and paperÖz Agaç-İş SendikasiHAK-IS 14 7287 38093 908222 981OverOverOverOver
      (7) CommunicationTürkiy e Haber-İş S.TÜRK-IS28 82616 20346 25368 394OverOverOverOver
      (8) Press and journalismTürkiy e Gazeteciler S.TÜRK-IS4 63281715 391104 141OverUnder (-224)Under (-1 265)Under (-2 306)
      (8) Press and journalismBasin-İş SendikasiTÜRK-IS5 5251 79148 861104 141OverOverUnder (-291)Under (-1 332)
      (9) Banking and insuranceBASSTÜRK-IS18 36810 446157 515265 736OverOverOverOver
      (9) Banking and insuranceBANKSİSIndepen.30 15311 584157 515265 736OverOverOverOver
      (9) Banking and insuranceBASİSENTÜRK-IS72 99138 131157 515265 736OverOverOverOver
      (10) Commerce, Office, Edu. F. ArtsSosyal-İş SendikasiDISK43 9147 246436 7942 151 600OverUnder (-14 270)Under (-35 786)Under (-57 302)
      (10) Commerce, Office, Edu. F. ArtsKoop-İş SendikasiTÜRK-IS46 15728 089436 7942 151 600OverOverUnder (-14 943)Under (-36 459)
      (10) Commerce, Office, Edu. F. ArtsTez Koop-İş SendikasiTÜRK-IS62 33750 319436 7942 151 600OverOverOverUnder (-14 229)
      (11) Cement, soil and glassÇimse-İş SendikasiTÜRK-IS71 51020 142173 602161 908OverOverOverOver
      (11) Cement, soil and glassKristal-İş SendikasiTÜRK-IS21 3426 747173 602161 908OverOverOverOver
      (12) MetalBirleşik Metal-İş Sen.DISK74 35926 061671 0151 367 258OverOverUnder (-2 104)Under (-14 452)
      (12) MetalÇelik-İş SendikasiHAK-IS 95 34227 493671 0151 367 258OverOverOverUnder (-13 523)
      (12) MetalTürk Metal SendikasiTÜRK-IS343 263151 734671 0151 367 258OverOverOverOver
      (13) ConstructionYol-İş SendikasiTÜRK-IS165 50532 385761 3261 438 464OverOverOverUnder (-10 767)
      (14) EnergyTes İş SendikasiTÜRK-IS122 35045 882153 029234 575OverOverOverOver
      (15) TransportationTÜMTİSTÜRK-IS14 8896 775139 616671 179OverOverUnder (-6 647)Under (-13 358)
      (15) TransportationNakliy at-İş SendikasiDISK16 9092 789139 616671 179OverUnder (-3 922)Under (-10 633)Under (-17 344)
      (15) TransportationHava-İş SendikasiTÜRK-IS18 09313 49733 005671 179OverOverOverUnder (-6 636)
      (15) TransportationDemiry ol-İş SendikasiTÜRK-IS23 20914 56325 838671 179OverOverOverUnder (-5 570)
      (16) Docks, Sea trans., Ship cons.Dok Gemi-İş SendikasiTÜRK-IS7 4052 24516 501143 764OverOverUnder (-629)Under (-2 066)
      (16) Docks, Sea trans., Ship cons.Liman-İş SendikasiTÜRK-IS8 2063 14032 781143 764OverOverOverUnder (-1 171)
      (16) Docks, Sea trans., Ship cons.Türkiy e Denizciler Sen.TÜRK-IS14 3714 53649 509143 764OverOverOverOver
      (17) Health and social servicesTürkiy e Sağlik-İş Sen.TÜRK-IS18 0815 264102 611281 196OverOverUnder (-358)Under (-3 169)
      (18) Hosting and entertainmentOLEYİSHAK-IS 33 2626 357327 929630 768OverOverUnder (-6 257)Under (-12 564)
      (18) Hosting and entertainmentTOLEYİSTÜRK-IS48 63514 012327 929630 768OverOverOverUnder (-4 909)
      (19) Defence and securityÖz-İş SendikasiHAK-İSn.a.1 93631 090191 784n.a.OverUnder (-1 898)Under (-3 815)
      (19) Defence and securityHarb-İş SendikasiTÜRK-IS30 98921 13431 090191 784OverOverOverOver
      (20) General worksGenel-İş SendikasiDISK83 97641 466491 622655 417OverOverOverOver
      (20) General worksHizmet-İş SendikasiHAK-IS 130 94251 079491 622655 417OverOverOverOver
      (20) General WorksBelediy e-İş SendikasiTÜRK-IS205 66641 314491 622655 417OverOverOverOver
      Note: This table covers the unions which were competent according to 2009 July statistics and it figures their current situation out. None of the 43 unions which were not competent according to the July 2009 statistics, achieved to pass the 1 per cent threshold according to the January 2013 statistics. Hence they are not included in the table. The single union (Öz-İş Sendikasi) established after the 2009 July statistics and became competent according to the 2013 January statistics is included in the table. Besides, Turkon-Is Sendikasi, established after the 2009 July statistics, also passed the 1 per cent threshold. However it is not affiliated to a confederation represented in the Economic and Social Council, it was applied 3 per cent threshold and it could not pass it, hence it did not become competent.
      >
  3. 495. As a result of the implementation of the new law and the transitional 1 per cent branch of activity threshold, seven unions, which had been competent according to the previous statistics, lost their competence in January 2013, since they were under the 1 per cent branch of activity threshold. In addition to that, two unions (Öz Tarim-Is Sendikasi and Emek Tarim-Is Sendikasi) were not included in the new statistics. Only one union (Oz-is Sendikasi, affiliated to HAK-IS , operating in defence and security), which was not included in the previous statistics since it was established afterwards, was able to gain competence by exceeding the 1 per cent threshold. In conclusion, the number of unions competent to engage in collective bargaining decreased to 43 from 51.
  4. 496. Taking into consideration the January 2013 statistics, the complainant estimates that: (i) as a result of the application of the 2 per cent branch of activity threshold in 2016, at least another 13 unions may remain under the threshold and lose their competence to engage in collective bargaining; (ii) as a result of the application of the 3 per cent branch of activity threshold in 2018, at least another seven unions may lose their competence to engage in collective bargaining; and (iii) in conclusion, after application of the 3 per cent of branch of activity threshold after July 2018, the number of unions competent to engage in collective bargaining may decrease to 23 as compared to 51 according to the previous law (with a 10 per cent threshold). The complainant concludes that the reduction of the percentage of branch of activity threshold, rather than increasing the number of trade unions that can engage in collective bargaining, has decreased it and will continue in this trend. There is no doubt that fewer competent unions mean fewer workers covered by collective agreements.
  5. 497. The complainant states that, according to a report issued by DISK, the new law and thresholds may result in the following: (i) in six branches of activity (press and journalism; commerce, office, education and fine arts; construction; transportation; health and social services; hosting and entertainment), there may be no unions competent to engage in collective bargaining. Given that 5,107,348 workers or 46.1 per cent of all workers are employed in these branches of activity, almost half of the workers may be deprived of the right to bargain collectively since there may be no competent union in their branch of activity; (ii) in eight branches of activity (petroleum, chemistry, tyre, plastic and medicine; textile, garment and leather; wood and paper; metal; energy; ship building, maritime transportation, warehouse and storage; defence and security) there may be only one competent union. Given that 3,690,427 workers or 33.9 per cent of all workers are employed in these branches of activity, one third of all workers may be deprived of the right to freely choose the union as a result of union monopoly in their branch of activity; (iii) in conclusion, only 20 per cent of workers may be able to choose one of the unions in their branch of activity which will represent them in collective negotiations.

    3. Reasons why the branch of activity threshold in Act No. 6356 violates Conventions Nos 87 and 98

    (a) Convention No. 98 and the branch of activity threshold

  1. 498. With reference to Article 4 of the Convention, as well as the Committee’s set of decisions, the complainant believes that there are two basic criteria to be met to be competent to engage in collective bargaining: (i) representativeness: the union should be able to represent the workers in a given unit of collective bargaining. If the union is representing the majority of the workers, there is no doubt that the union shall engage in collective bargaining; if there is not any union representing a majority of the workers; collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members. In the complainant’s view, setting numerical criteria (minimum membership) or the affiliation to higher organizations as conditions for representativeness does not comply with Convention No. 98; and (ii) independence: unions should be independent from the employer, employers’ organizations and the authorities. Besides, the determination which organizations meet these criteria should be made by an independent and objective body.
  2. 499. According to the complainant, when the criteria mentioned above are taken into consideration, the branch of activity threshold stipulated by Act No. 6356 infringes Convention No. 98 for the following reasons:
    • – The law stipulates a numerical requirement (3 per cent representativeness in a given branch of activity) to be met to be able to engage in collective bargaining. Even if a union represents the majority of the workers in an enterprise, if it does not also represent 3 per cent of the workers in the relevant branch of activity, collective bargaining rights are not granted to the union. In other words, unions which do not have 3 per cent of representativeness in their relevant branches of activity are deprived of the right to bargain collectively.
    • – The numerical criteria of representativeness is stipulated by law, which means that, instead of an independent and objective body, the lawmaker and the Ministry of Labour and Social Security determine which unions will be able to engage in collective bargaining.
    • – As it is proved by data and statistics mentioned above, rather than encouraging and promoting collective bargaining, the Act decreases the number of unions engaged in collective bargaining and the number of workers covered by collective agreements, limits the potential development of machinery of collective bargaining and also restricts the workers’ rights to freely choose the union that will represent them in terms of collective bargaining.
  3. 500. The complainant states that the Government has been criticized by the ILO for years because of the restrictions on the right to bargain collectively caused by the two numerical requirements. Thus, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) criticized the double threshold, pointed out that the branch of activity threshold severely infringes Article 4 of Convention No. 98 and called on the Government to totally remove the double threshold in its reports of 1989, 1991, 1992, 1993, 1994, 1995, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2009 and 2011. The application of Convention No. 98 by Turkey has been discussed by the Conference Committee on the Application of Standards (CAS) in 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1991, 1993, 1994, 1995, 1996, 1998 and 2000. As of 1993, referring to the calls of the CEACR, the CAS requested the Government to eliminate restrictions on collective bargaining resulting from the double criteria for representativeness. Government representatives promised to eliminate the double threshold and noted that they were working on draft laws to remove it. However, Act No. 6356 did not eliminate it, which means that the Government did not keep its promises.
  4. 501. The complainant concludes that there is no doubt that the branch of activity threshold and workplace/enterprise threshold (double criteria) stipulated by Act No. 6356 infringe Convention No. 98 and should be totally eliminated to encourage and promote collective bargaining. It is not possible to argue that the reduction in the percentage of the branch of activity threshold is a satisfactory change in the legislation to comply with Convention No. 98. This fact has been voiced several times by ILO organs and academicians and it has been well known by Government, which promised to eliminate double criteria many times.

    (b) Convention No. 87 and the branch of activity threshold

  1. 502. With reference to Article 2 of Convention No. 87, the complainant believes that it is impossible to argue that the branch of activity threshold stipulated by Act No. 6356 does not infringe the workers’ rights to establish and join the unions of their own choosing. Union rights constitute a whole; absence of one of them inevitably affects others and results in difficulty in their enjoyment. Keeping in mind the fact that the Turkish union system has been founded on the basis of collective agreements concluded in workplaces or enterprises, the main and most important function of the unions has been engaging in collective bargaining, and unions have been financed by union fees of members for whom unions sign collective agreements; it is obvious that, if a union is not allowed to engage in collective bargaining, that union will not be able to grow, to strengthen and even to survive. In other words, even if workers prefer a specific union, if that union is not able to conclude collective agreements, workers are pushed to join a union which is able to engage in collective bargaining although that union is not their real choice. In the complainant’s view, since the branch of activity threshold does not and will not allow many unions to engage in collective bargaining, it severely restricts the workers’ right to freely choose a union to organize and forces workers to choose one of the unions which are competent to conclude collective agreements even if workers do not prefer those unions; hence it contradicts with ILO Convention No. 87.
  2. 503. While the Government has been arguing that it adopts the branch of activity threshold to inhibit yellow unions and union “inflation”, to create a strong unionism and to promote a united union movement, the Committee on Freedom of Association has pointed out several times that such a unity within the trade union movement should not be imposed by law.
  3. 504. The complainant concludes that Act No. 6356, by stipulating a branch of activity threshold, and decreasing and limiting the number of unions competent to engage in collective bargaining, infringes the workers’ rights to organize and join a union of their own choosing.

    (c) ILO Conventions and unconstitutionality of the branch of activity threshold

  1. 505. Article 90(5) of the Constitution of the Republic of Turkey reads as follows: “International agreements duly put into effect bear the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” This article of the Constitution considers international agreements in the area of fundamental rights and freedoms, and thus ILO Conventions Nos 87 and 98, superior to domestic laws. According to the complainant, since the branch of activity threshold in Act No. 6356 runs counter to Conventions Nos 87 and 98, the Government violated article 90 of the Constitution. An appeal with the Constitutional Court was filed by the opposition for annulment of several provisions of the Act due to incompatibility with various articles of the Constitution.

    4. The case of SOSYAL-IS

  1. 506. SOSYAL-IS was founded by workers of the Social Insurance Institution on 10 December 1966. In the following years, SOSYAL-IS engaged in a comprehensive organizing campaign and organized in many markets, supermarkets and retail stores. Besides, many workplace unions joined SOSYAL-IS in those years. In 1974, SOSYAL-IS was the voice of 11,720 workers and affiliated to DISK. Before the military coup of 1980, SOSYAL-IS was the strongest union in the relevant branch of activity. However after the 12 September 1980 military coup, a systematic project was put in practice to liquidate DISK and its affiliates. In that context activities of SOSYAL-IS were stopped in 1980, a suit was filed against SOSYAL-IS and members of the General Administrative Board of SOSYAL-IS were judged. At the end of the judicial procedure, SOSYAL-IS re-started its activities in 1991 and started to work to recover the damages of the military coup. After a while, SOSYAL-IS achieved to overcome the 10 per cent branch of activity threshold and started to engage in collective bargaining. Until the adoption of Act No. 6356, SOSYAL-IS organized tens of thousands of workers and concluded many collective agreements. Three years ago, SOSYAL-IS initiated a new organizing campaign and doubled the number of its members. However, since SOSYAL-IS remained under the branch of activity threshold in January 2013, it lost its competence to engage in collective bargaining. In the process of rehabilitating the tremendous damage of the military coup, SOSYAL-IS is deprived of the most important tool of organizing that is right to engage in collective bargaining.
  2. 507. The complainant stresses that the new law and new thresholds are not just the problem of SOSYAL-IS. SOSYAL-IS has been attributed to the branch of activity “commerce, education, office and fine arts”. Until 2013, there were three unions competent to engage in collective bargaining: SOSYAL-IS (affiliated to DISK) and Koop-Is and Tez Koop-Is (affiliated to TÜRK-IS). As shown in the table below, the number of unions in that branch of activity raised from five to nine between 2009 and 2013; however, the number of unions competent to engage in collective bargaining (over the threshold) decreased from three to two as a result of the 1 per cent branch of activity threshold. In 2016, Koop-Is may not be able to attain the 2 per cent threshold, and in 2018, Tez Koop-Is may not reach the 3 per cent threshold. Considering the fact that more than 2 million workers are employed in this branch of activity, the complainant points to the possible danger of a total absence of unions competent to engage in collective bargaining in a period of five years and hence the end of the right to bargain collectively for more than 2 million workers. Even if Tez Koop-Is reaches the 3 per cent threshold, most probably a union monopoly will emerge in this branch of activity.
    • UnionConf.No. of membersNo. of membersNo. of workersNo. of workers20092013–162016–182018
      20092013200920131%2%3%
      SOSYAL-İS SendikasiDISK43 9147 246436 7942 151 600OverUnder (-14 270)Under (-35 786)Under (-57 302)
      Koop- İş SendikasiTÜRK-IS46 15728 089436 7942 151 600OverOverUnder (-14 943)Under (-36 459)
      Tez Koop- İş SendikasiTÜRK-IS62 33750 319436 7942 151 600OverOverOverUnder (-14 229)
      Öz Büro- İş SendakasiHAK-IS n.a.5 988436 7942 151 600n.a.Under (-15 528)Under (-37 044)Under (-58 560)
      Bil-İş SendikasiIndep.484n.a.436 7942 151 600Undern.a.n.a.n.a.
      Sine-Sen SendikasiDISK3115436 7942 151 600UnderUnderUnderUnder
      Turkiye Yazarlar SendikasiIndep.n.a.0436 7942 151 600n.a.UnderUnderUnder
      Müzik-SenIndep.n.a.0436 7942 151 600n.a.UnderUnderUnder
      Oyuncular SendikasiIndep.n.a.40436 7942 151 600n.a.UnderUnderUnder
      >
  3. 508. Although this branch of activity is the biggest one in terms of workers employed, the unionization in this branch of activity is limited. According to 2013 January statistics, 91,752 workers out of 2,151.600 workers are affiliated to a union in this branch of activity; hence, the ratio of union membership is 4.3 per cent, which is considerably lower than the general ratio of union membership that is 9.21. The number of workers covered by a collective agreement is inevitably lower. It is around 50,000, which means that only 2 per cent of the workers can enjoy right to bargain collectively. It is obvious that, since SOSYAL-IS will not be able to engage in collective bargaining and the number of competent unions will be just two, the level of collective bargaining will be decreasing.
  4. 509. In addition, according to the complainant, the very nature of this branch of activity requires union plurality. The total number of workplaces in this branch of activity is 426,237; the average number of members employed in a workplace is around five. Since there are hundreds of thousands of workplaces to be organized by unions, more competent unions mean more union members, more organized workplaces and more collective agreements. Besides, the occupational diversity in this branch of activity also requires union plurality. Since many different occupational groups are employed in this sector (for example, university professors, janitors in public universities, cashiers, actors and actresses, office workers, call centre workers, specialists in companies, secretaries, etc.), it is important to have many unions specialized in subsectors and focused on different occupational groups. However, rather than promoting collective bargaining, the Act restricts it by stipulating the branch of activity threshold and thus reducing the number of competent unions.
  5. 510. The complainant further stresses that, since SOSYAL-IS, a union affiliated to DISK, remained under the threshold, more than 2 million workers who want to enjoy the right to bargain collectively have been forced to choose one of the other unions (either Koop-Is or Tez Koop-Is) which are affiliated to the same confederation. Workers will thus not be able to be represented by a union that adopts a different policy than that of TÜRK-IS. In these conditions, neither union plurality nor the right to choose a union exists.
  6. 511. Furthermore, the complainant states that SOSYAL-IS has been focused on organizing subcontracting workers in public universities and institutions, who constitute a large underpaid group which work in really hard conditions without job security. SOSYAL-IS has struggled to cover these workers by collective agreements and was the single union in this branch of activity that dealt with this issue. SOSYAL-IS also organizes workers in small workplaces who are underestimated by other unions, since it is really difficult and takes too much time and energy to get organized and deal with small workplaces. It is also the single union dedicated to organize hundreds of thousands of workers employed in foundation universities and private education institutions. Therefore, if SOSYAL-IS is not able to conclude collective agreements, many workers employed in several subsectors may not be able to find a union to organize.
  7. 512. The complainant concludes that Act No. 6356 may result in the vanishing of SOSYAL-IS, a union with a half-century history in the Turkish trade union movement and a special position in it. Hence, it is important that the Government be reminded of the fact that the branch of activity threshold is a violation of the trade union rights protected by Conventions Nos 87 and 98.

B. The Government’s reply

B. The Government’s reply
  1. 513. In its communication dated 9 July 2014, the Government turns first to the complainant’s allegation that trade unions are established on sectoral basis and workers are not allowed to organize under company or craft unions. The Government recognizes that, given the circumstances in Turkey and its trade unionism experience, trade unions are established on sectoral basis. However, there are no restrictions in Act No. 6356 regarding the establishment of trade unions on craft and company basis. In Turkey, trade unions such as the Actors Union, the Journalists Union, Sine-Sen and Müzik-Sen still pursue their activities, organized on the basis of occupation. No written or verbal requests on the issue of founding company or craft unions were submitted by social parties; to the contrary, it was asserted by the social partners that craft unionism is globally outdated and such organization methods might adversely affect the structure of the Turkish industrial relations system.
  2. 514. The operation on a sectoral basis raises the issue as to which sector the workplace in which a trade union wishes to organize, belongs to. Trade unions organize in workplaces in Turkey for a long time. Determining in which sector the trade union organized in a workplace will be active is linked to the classification of economic activities. The Act removes the requirement of “operating nationwide across Turkey” to be able to establish a trade union, which eliminates for trade unions the obstacle of organizing under a single workplace.
  3. 515. Secondly, with respect to the complainant’s allegation that Act No. 6356 requires double quantitative criteria for collective bargaining, the Government indicates that, during the preparation of the Act and as a result of negotiations held with the social partners, the reduction of the upper limit of the sectoral threshold instead of its removal was largely agreed upon, including by workers’ confederations. Therefore, under section 41 of the Act, the sectoral threshold which had caused problems during the terms of its implementation, was lowered to 3 per cent taking into consideration the realities of the country. However, provisional article 6 of the Act provides that this rate is reduced to 1 per cent until July 2016. Moreover, the sectoral threshold requirement was not imposed upon trade unions with authority prior to the entry into force of the Act that concludes collective agreements. Hence, all existing authorized trade unions were allowed to undergo transition.
  4. 516. Section 41 also stipulates that a trade union will be authorized to engage in collective bargaining on the condition that it has affiliated 50 per cent plus one employees in a workplace or 40 per cent of employees in an enterprise under the coverage of the collective agreement. Hence, the majority required for collective agreements was reduced from 50 to 40 per cent of employees. Considering that such agreements make up a large majority of collective agreements in Turkey, the Government states that this provision facilitates the authorization of trade unions with members from workplaces in the same sector owned by the same employer, thus significantly appeasing criticisms raised by the EU and the ILO supervisory bodies.
  5. 517. Thirdly, as regards the complainant’s allegation that the reduction of the sectoral threshold is not a real but a nominal change, as a result of the change in the statistics system, the Government indicates that, during the validity term of Act No. 2822, there was no reliable system to check the number of members in trade unions. According to the Government, millions of workers who had resigned their trade union membership remained registered as members, and many unions were noted to be above the threshold due to unrealistic statistical research and were authorized to engage in collective bargaining, while being below it.
  6. 518. The Government states that the valid criticisms by trade unions were eliminated by creating a system based on real data instead of nominal data. Section 41 of Act No. 6356 provides that statistics issued by the Ministry in January and July of every year will be taken as a basis for determining the percentage of workers serving in a given sector. The provision also stipulates that, when compiling statistics and identifying the authorized trade unions, notifications of joining and resigning membership and statements of workers submitted to the Social Security Institution are taken as a basis, thus enabling realistic statistics through the identification of workers who died, resigned or had double membership. The January 2013 statistics on the number of workers in each sector and the number of union members were issued in the Official Gazette dated 26 January 2013. The assertions of SOSYAL-IS that, based on the statements submitted to the Social Security Institution, the number of union members has notably decreased in the January 2013 statistics because millions of unemployed workers were stripped of trade union membership, are unrealistic. In the Government’s view, a system aimed at securing the structure of an organized trade union network has been created.
  7. 519. Fourthly, concerning the complainant’s allegation that the merger of certain sectors raised the number of workers in those sectors and that lowering the sectoral threshold increased the number of workers that the trade unions must organize, the Government indicates that, in line with Act No. 6356, the number of sectors was reduced and designated as 20 in consideration of worldwide application and international standards. With the number of sectors being reduced, food and sugar, textile and leather, wood and paper, press and journalism, land, railroad and air transportation, storehouse and warehousing sectors were merged with one another, and private security services were incorporated into the defence and security sector. The legislation has envisaged the attribution of businesses to sectors after consultation of employee and employer confederations. Hence, the elimination of problems arising in the designation of sectors under the previous law was proposed, and the new designation of sectors entered into force upon its issuance in the Official Gazette dated 19 December 2012. Moreover, with an amendment of a provisional article of the Act, the sectoral threshold for existing authorized trade unions concluding collective agreements was removed, thus averting their loss of authority and ensuring the trade unions’ adaptation to the transition period.
  8. 520. Fifthly, with respect to the complainant’s allegation that the number of trade unions authorized to sign collective labour agreements decreased, the Government explains that the reason for the low number of trade unions authorized to sign collective agreements could be attributed to the low unionization rate. Therefore, obstacles before trade unions were removed by envisaging a transition period allowing existing authorized trade unions to continue concluding collective agreements. In the Government’s view, the SOSYAL-IS estimates for the aftermaths of 2016 and 2018 are based on assumptions, and it is inaccurate to make projections for five years drawing upon current figures. If trade unions concentrate on organization efforts, there will be a surge in the unionization rate in the future, which will also entail a rise in the number of authorized trade unions.
  9. 521. Moreover, the Government states that, according to provisional article 1 of Act No. 6356, trade unions must designate the sector they will operate in, one month following the issuance of the designation of sectors on 19 December 2012. The January 2013 statistics did not include 15 trade unions that had not yet specified the sector in which they would operate. This caused the number of trade unions authorized to sign collective labour agreements to appear lower than it actually was. Analysing the January 2013 statistics, it is noticed that seven trade unions have low numbers of members, are not engaged in organizational activity and were not entitled to sign collective agreements under the previous law. This is another factor causing a low number of trade unions authorized to sign collective agreements.
  10. 522. Lastly, the Government turns to the allegation that SOSYAL-IS lost the authorization to engage in collective bargaining because it was lagging behind the sectoral threshold as of January 2013. With reference to the complainant’s statement that SOSYAL-IS had organized many workers by the time the Act came into force and signed numerous collective agreements and that the number of its members rose twofold in the last three years, the Government indicates that SOSYAL-IS filed a legal case against the statistical data issued in July 2003, and that, in accordance with the interlocutory injunction of the court and in light of the July 2009 statistics, SOSYAL-IS became authorized to conclude collective agreements (with 43,914 members, i.e. 10.05 per cent of the overall workers in the sector). The January 2013 statistics reveal that SOSYAL-IS, which is organized in the “commerce, office, education and fine arts” sector (No. 10), currently has 7,246 members (i.e. unionization rate of 0.34 per cent).
  11. 523. The Government stresses however that, according to provisional article 6(3) of Act No. 6356, existing labour unions authorized to engage in collective bargaining were granted the permission to sign new collective agreements in workplaces with which a collective agreement was signed prior to 7 November 2012, regardless as to whether or not they meet the requirement of reaching the sectoral threshold. According to section 35 of the Act (duration of collective labour agreements between one and three years), it was ensured that said trade unions would be kept exempt from the requirement of reaching the sectoral threshold until 2016. SOSYAL-IS is thus not required to meet the sectoral threshold for now according to the related provision of the law and will once more be able to conclude collective agreements in workplaces and enterprises where it has no longer the authority to engage in collective bargaining. In the framework of Act No. 6356, which removed obstacles to organization among trade unions, SOSYAL-IS could regain the authority to engage in collective bargaining if it concentrates on organizational efforts in the future and increases its membership in the sector where it is organized.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 524. The Committee notes that, in the present case, the complainant organization alleges that the Act on Trade Unions and Collective Bargaining Agreements (Act No. 6356) is not in compliance with Convention No. 98, in particular as regards the required thresholds for collective bargaining.
  2. 525. In particular, the Committee notes the complainant’s allegations that: (i) section 41(1) of Act No. 6356 stipulates double numerical criteria to be met to allow a union to engage in collective bargaining in a specific workplace or enterprise: the branch of activity threshold and the workplace/enterprise threshold; (ii) the percentage decline in the branch of activity threshold from 10 (previous law) to 3 is not a real but a nominal change, which does not lessen the requirement but rather hardens it and thus does not meet ILO recommendations; (iii) since the change in the system of compilation of statistics by taking into account the notifications made to the Social Security Institution, the number of workers in the January 2013 statistics doubled (from 5 to 10 million) because the former statistics based on the database of the Ministry of Labour and Social Security had not accurately reflected the reality; but the number of union members considerably declined (from 3 to 1 million) because the Ministry of Labour and Social Security, using the database of the Social Security Institution, eliminated the union membership of millions of workers who were not currently employed in a workplace or enterprise in which the union to which they were affiliated was established; (iv) as a result of the merger of some of the existing branches of activities and their decrease from 28 to 20 in Act No. 6356, the number of workers employed per branch considerably increased, and the reduced branch of activity threshold, rather than decreasing the minimum number of workers that unions have to organize, increased the minimum number of membership for many of them; (v) according to the July 2009 statistics, there were 51 unions competent to sign collective agreements, whereas in January 2013, as a result of the implementation of the new law and of the transitional 1 per cent branch of activity threshold, the number of unions competent to engage in collective bargaining decreased to 43 (seven unions lost their competence); (vi) although SOSYAL-IS initiated a new organizing campaign and doubled the number of its members three years ago, it remained under the branch of activity threshold in January 2013 and lost its competence to engage in collective bargaining; (vii) if SOSYAL-IS is not able to conclude collective agreements, many workers employed in several subsectors may not be able to find a union to organize, as SOSYAL-IS was the only union in its branch focusing on organizing sub-contracting workers, workers in small workplaces etc.; (viii) given that the main function of unions has always been engaging in collective bargaining and that unions have been financed by fees of union members for whom unions conclude collective agreements in workplaces or enterprises, a union will not be able to grow, to strengthen or even to survive if not allowed to engage in collective bargaining because workers are pushed to join a union which is able to engage in collective bargaining even if they prefer another union; (ix) Act No. 6356 may thus result in the disappearance of SOSYAL-IS; (x) according to estimates, 13 unions may remain under the 2 per cent branch of activity threshold in 2016 and seven unions under the 3 per cent threshold in 2018; reducing the number of unions competent to engage in collective bargaining to 23 as compared to 51 under the previous law (even with the then 10 per cent threshold); which means that, in five years, in six branches of activity there may be no unions competent to engage in collective bargaining (including in SOSYAL-IS’s branch of activity “commerce, education, office and fine arts” which is the biggest branch with 2 million workers employed and requires union plurality due to its huge number of workplaces and occupational diversity) thus depriving almost half of all workers of the right to bargain collectively; in eight branches of activity there may be only one competent union, thus depriving one third of all workers of the right to freely choose a union in their branch of activity; and only 20 per cent of workers may be able to freely choose one of the unions in their branch of activity which will represent them in collective negotiations; and (xi) the branch of activity threshold should be totally eliminated as it severely restricts the rights to organize and bargain collectively and does not comply with Conventions Nos 87 and 98.
  3. 526. The Committee also notes the Government’s indications that: (i) under section 41 of Act No. 6356, the sectoral threshold, which had caused problems during the terms of its implementation, was lowered to 3 per cent; (ii) the reduction of the sectoral threshold instead of its removal was largely agreed upon by the social partners; (iii) section 41 also lowered the enterprise threshold to engage in collective bargaining by reducing the majority required for collective agreements from 50 to 40 per cent of affiliated employees in an enterprise (while having the threshold at 50 per cent for the workplace level); (iv) during the validity term of Act No. 2822, there was no reliable system to check the number of members in trade unions, millions of workers who had resigned from their trade unions remained registered as members, and many trade unions were noted to be above the required threshold due to unrealistic statistics; (v) at present, when compiling statistics, notifications of joining and resigning membership and statements of workers submitted to the Social Security Institution are taken as a basis, thus enabling realistic statistics through the identification of workers who died, resigned or had double membership; (vi) the assertion of SOSYAL-IS that, based on the statements submitted to the Social Security Institution, the number of union members has notably decreased in the January 2013 statistics because millions of unemployed workers were stripped of trade union membership, is unrealistic; (vii) the number of sectors was reduced to 20 in consideration of worldwide application and international standards and after consultation of employee and employer confederations, to eliminate problems arising in the designation of sectors under the previous law; (viii) while according to provisional article 1 of Act No. 6356, trade unions must designate the sector they will operate in, one month following the issuance of the designation of sectors on 19 December 2012, 15 trade unions had not yet specified their sector in time for the January 2013 statistics, which caused the number of trade unions authorized to sign collective labour agreements to appear lower than it actually was; (ix) the Government states that the reason for the low number of trade unions authorized to sign collective agreements could be attributed to the low unionization rate, and that it was hence decided to remove obstacles before trade unions by envisaging a transition period: firstly, provisional article 6(1) of Act No. 6356 provides that the branch of activity threshold is reduced to 1 per cent until July 2016, and to 2 per cent until July 2018; and secondly, according to provisional article 6(3), existing labour unions authorized to engage in collective bargaining were granted the permission to sign new collective agreements in workplaces with which a collective agreement was signed prior to 7 November 2012, regardless as to whether or not they meet the requirement of the sectoral threshold; (x) the latter provision de facto keeps trade unions exempt from the sectoral thresholds of Act No. 6356 until 2016, which means that SOSYAL-IS is not required to meet the sectoral threshold for now and will once more be able to conclude collective agreements in workplaces and enterprises where it has no longer the authority to engage in collective bargaining; (xi) in the framework of Act No. 6356, which removed obstacles to organization among trade unions, SOSYAL-IS could regain the authority to engage in collective bargaining if it concentrates on organizational efforts in the future and increases its membership in the sector where it is organized; (xii) the SOSYAL-IS estimates for the aftermaths of 2016 and 2018 are based on assumptions, and it is inaccurate to make projections for five years drawing upon current figures; if trade unions concentrate on organization efforts, there will be a surge in the unionization rate in the future, which will also entail a rise in the number of trade unions authorized to engage in collective bargaining.
  4. 527. The Committee notes that section 41(1) of Act No. 6356 provides that the workers’ trade union representing at least 3 per cent of the workers engaged in a given branch of activity and more than half of the workers employed in the workplace and 40 per cent of the workers in the enterprise to be covered by the collective labour agreement shall be authorized to conclude a collective labour agreement covering the workplace or enterprise in question. The Committee observes that the provision sets out two cumulative requirements for becoming a collective bargaining agent: the union should represent both at least 3 per cent of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace or 40 per cent of workers of the enterprise to be covered by the collective agreement. The Committee notes that the CEACR has reiterated in this connection its long-standing comment that such a double threshold could create obstacles to collective bargaining at the enterprise level, where a representative union should be able to negotiate a collective agreement regardless of its overall sectoral-level representativity. In this regard, the Committee wishes to recall that it has always held that for a trade union at the branch level to be able to negotiate a collective agreement at the enterprise level, it should be sufficient for the trade union to establish that it is sufficiently representative at the enterprise level [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 957]. In particular, the Committee recalls that it has previously been dealing with the same issue (dual criteria for bargaining collectively) within the framework of Case No. 1830, where it considered that the relevant legislation (then Act No. 2822 on collective agreements, strikes and lockouts) did not have the effect of promoting and stimulating unhindered collective bargaining at the level of the undertaking, and strongly urged the Government to amend its legislation so as to bring it in line with Article 4 of Convention No. 98 (see 303rd Report, para. 57). The Committee considers that the combination of the sectoral and workplace/enterprise thresholds raises problems with regard to the principles of freedom of association in terms of requirements for representativeness.
  5. 528. While noting the Government’s statement that the branch of activity threshold in Act No. 6356 is lower than in the previous law (reduced from 10 to 3 per cent), the Committee cannot ignore that the 2013 implementation of the even lower transitional threshold of 1 per cent has entailed the loss of competence of the complainant organization SOSYAL-IS, which was previously authorized to engage in collective bargaining. The Committee is also obliged to note the concerns expressed by the complainant at the decrease in the number of trade unions authorized to sign collective agreements as a result of changes in the compilation of statistics and the reduced number of branches of activity. The Committee observes that: (i) there are divergent views as regards the allegation that the Ministry of Labour and Social Security, using the database of the Social Security Institution, eliminated membership of millions of workers who were not currently employed in a workplace/enterprise in which the union that they were affiliated to was established; (ii) the Government highlights the need for the statistical changes for the purposes of enhanced accuracy but does not contest the allegations that they entailed a considerable increase in the number of registered workers, an increase in the number of workers engaged in certain branches and a considerable decrease in the number of union members, which, in the Committee’s view are all factors impeding on unions attaining the branch of activity threshold; and (iii) with reference to factors making the number of trade unions authorized to sign collective agreements appear lower than it actually is, the Government nonetheless acknowledges that the number is low, attributes it to the unionization rate that it also qualifies as low and predicts a rise in the number of trade unions authorized to engage in collective bargaining if unions make organizational efforts to increase their membership in the future.
  6. 529. In these circumstances, the Committee can only consider that the branch of activity threshold, which is required by Act No. 6356, in addition to the workplace or enterprise threshold to be able to conclude a collective labour agreement covering the workplace or enterprise in question, is not conducive to harmonious industrial relations and does not promote collective bargaining in line with Article 4 of Convention No. 98, ratified by Turkey, as it may ultimately result in the decrease in the number of workers covered by collective agreements in the country. With respect to the enterprise threshold (40 per cent) or workplace threshold (50 per cent), the Committee also recalls that, where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members [see Digest, op. cit., para. 976]. In view of the above, the Committee requests the Government to carry out without delay a full review of the impact of Act No. 6356 on the trade union movement and the national collective bargaining machinery as a whole, in full consultation with the social partners, and that, in light of the outcome of that review, the Act will be revised in line with the principles set out above. The Committee requests to be kept informed of any developments in this respect and invites the Government to avail itself of ILO technical assistance. It also requests the Government to provide information on the outcome of the appeal filed with the Constitutional Court for annulment of several provisions of Act No. 6356. Duly noting the transitional provisions in provisional article 6(1) and (3) referred to by the Government, the Committee trusts that no authorization to conclude collective agreements will be withdrawn from any trade union, including the complainant, owing to failure to comply with the double threshold in section 41(1) of the Act.

The Committee’s recommendations

The Committee’s recommendations
  1. 530. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
    • (a) The Committee requests the Government to carry out without delay a full review of the impact of Act No. 6356 on the trade union movement and the national collective bargaining machinery as a whole, in full consultation with the social partners and that, in light of the outcome of that review, the Act will be revised in line with the principles set out in its conclusions. The Committee requests to be kept informed of any developments in this respect and invites the Government to avail itself of ILO technical assistance.
    • (b) Duly noting the transitional provisions in provisional article 6(1) and (3) referred to by the Government, the Committee trusts that no authorization to conclude collective agreements will be withdrawn from any trade union, including the complainant, owing to failure to comply with the double threshold in section 41(1) of Act No. 6356.
    • (c) The Committee also requests the Government to provide information on the outcome of the appeal filed with the Constitutional Court for annulment of several provisions of Act No. 6356.
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