Effect given to the recommendations of the committee and the Governing Body - REPORT_NO389, June 2019

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

1. 96. The Committee last examined this case which concerns allegations of union busting and anti-union discrimination at two enterprises 1 and the dual representativeness threshold required by legislation for a union to gain recognition for collective bargaining purposes as well as the requirement of the intervention of a public notary to become a member of a trade union or to resign from it, at its March 2012 meeting [see 363rd Report, paras 1098–1132]. On that occasion, the Committee requested the Government to keep it informed of the outcome of judicial proceedings relating to the alleged anti-union dismissals in enterprise (a), to investigate other allegations of anti-union discrimination there and the employer’s refusal to meet with the union to discuss issues of downsizing, and take the necessary measures so that the management recognizes the union. With regard to allegations concerning enterprise (b), the Committee requested both the Government and the complainant to send further information on the number of workers involved and to keep it informed of the status of two dismissal cases that were appealed by the employer. It further requested the Government to ensure the implementation of the court judgments ordering the reinstatement of dismissed workers and payment of compensation to them; to indicate whether a Joint Workers’ Council was established at the enterprise and was functioning and to provide information with regard to the enquiry made into allegations of harassment of workers. The Committee further expressed its expectation that the Government bring its legislation and practice into line with the principles of freedom of association and drew the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.
2. 97. The Government sent observations on the legislative aspects of the case and the situation in enterprises (a) and (b) in communications dated 6 September 2013, 5 September 2014 and 16 October 2017. With regard to the legal requirement of the intervention of a public notary to become a member of a trade union or to resign from it, the Government indicates in its 2014 communication that paragraph 5 of article 17 of the Law on Trade Unions and Collective Labour Agreements (Law No. 6356) has removed the notary condition by providing that application for membership in a trade union is filed via e-State with the electronic application system provided by the Ministry of Labour. With regard to the dual representativeness threshold requirement, the Government provides updated information in its 2017 communication, indicating that article 41 of the Law No. 6356 has been amended so as to reduce the branch threshold to 1 per cent and under the amended provision “The workers’ trade union representing at least 1 per cent of the workers engaged in a given branch of activity and more than half of the workers employed in the workplace and forty 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.”
3. 98. With regard to the situation in enterprise (a), the Government indicates in its 2014 communication that Teksif Trade Union, operating in the branch of activity of Weaving, Garment and Leather No. 5 as per schedule (1) of the first paragraph of article 4 of Law No. 6356, has not initiated the legal process provided in the laws in order to organize in the said workplace. Furthermore, Teksif only signed a collective labour agreement in enterprise (a) in 1989–91 and there has been no collective labour agreement process afterwards. The Government then reiterates the conclusions of the report drawn up by the inspectors of the Ministry of Labour following an inspection made at the enterprise in 2011 that were noted by the Committee in its previous examination of this case. In particular, the Government reiterates that although the proceedings concerning some of the cases filed by workers are still ongoing, the verdict of local courts stating that “termination of service contracts cannot be considered as an evidence of obstacle before freedom of association” shows that the allegations of anti-union dismissal are not founded, and that according to Turkish legislation, a trade union whose competence to conclude the collective labour agreement is not certified is not accepted to represent workers against employers and therefore, the employer’s refusal to work with Teksif cannot be criticized and be considered as a ground for complaint.
4. 99. With regard to the situation in enterprise (b), the Government indicates in its 2017 communication that inspections were conducted in 2011 in three plants of the enterprise, namely Düzce OSB, Çorlu/Tekirdaǧ and Sefaköy/İstanbul. With regard to the first plant, the Government indicates that after the initiation of unionization efforts in June 2008, the employer terminated the contracts of several workers, and it was found in final judicial rulings that these terminations were based on anti-union grounds and consequently seven dismissed workers returned to work, six of whom declared that they still worked for the enterprise as of the inspection date. With regard to the second plant, the Government indicates that witnesses stated confidentially that no pressure was put on them in relation to union membership activity or membership and the employer stated that it had established the Joint Workers’ Council with a view to further motivate the workers and facilitate the communication of problems and suggestions for improvement to the management. The members of the board were elected by workers for three years in a secret ballot and the minutes of the election were seen during the inspection. With regard to the third plant, the Government indicates that the Labour Court found Ms Emine Arsalan’s dismissal was based on anti-union grounds and the Appeal Court confirmed this ruling on 13 April 2009. However, the employer refused to reinstate her and instead paid her compensation. The Government also refers to the case of another worker, Mr Nevzat Ülkü, dismissed on 17 January 2011, who has filed a lawsuit against the employer claiming that his dismissal was based on anti-union grounds. According to the inspection report the case has not yet been concluded. The Government further indicates that during the inspection in the third plant, the representative of the employer denied the use of any pressure or coercion against workers in relation to trade union membership or activity. The workers’ statements were however mixed: while some said they had not been subjected to any pressure or differential treatment, others expressed their belief that union membership may entail dismissal and said that they had resigned from the union in view of the fact that they were approaching retirement. The Government concludes that the inspection board could not reach any concrete determination with regard to allegations of anti-union pressure or formation of the Joint Council with a view to preventing union organization.
5. 100. The Committee notes the information provided by the Government. With regard to the situation in enterprise (a), the Committee notes that the Government provides no information as to the final outcome of the dismissal proceedings, neither does it refer to any enquiry into the general allegation of anti-union discrimination. The Government however emphasizes that the fact that the first instance courts have found no evidence of anti-union dismissals shows that the allegations were ill-founded. With regard to the recognition of Teksif Trade Union, the Committee notes the Government’s indication that the union has not initiated the legal process in order to organize in the enterprise and adds that as the union’s competence to conclude collective bargaining agreements at the enterprise (a) is not certified, the employer cannot be required to work with Teksif. In view of the number of years that have elapsed since the facts at the origin of this case took place and the lack of information from the complainant, that has been in the meantime replaced by a new international trade union – the International Textile, Garment and Leather Workers’ Federation (ITGLWF) was dissolved in June 2012 and replaced by the IndustriALL Global Union together with two other international workers’ federations, to which Teksif is an affiliate, the Committee recalls that the complainants had indicated that Teksif was the only union present at enterprise (a) and notes that despite this fact, the Government indicates that the employer’s refusal to work with a union that does not qualify as exclusive bargaining agent is justified. The Committee recalls that the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited. Minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them [see Compilation, para. 1388]. The Committee trusts that the Government will ensure respect for this principle.
6. 101. With regard to enterprise (b), the Committee notes that the information submitted by the Government is drawn from inspection reports dating back to 2011 and that the complainant has not submitted the information requested in the Committee’s recommendations at its last examination of this case. The Committee notes the Government’s indication that seven workers dismissed on anti-union grounds were reinstated and recalls the previous Government indications according to which the courts found that 28 workers were dismissed for anti-union reasons but that the employer had preferred to pay compensation to 14 among them rather than reinstating them. The Committee notes that the precise number of workers involved and the outcome of the dismissal cases appealed by the employer remain unclear in the absence of clarification on the part of the Government and the complainant. The Committee further notes that the inspection board could not reach any determination on the issue of anti-union pressure and coercion in the third plant despite the fact that certain workers had expressed the belief that union membership could entail dismissal. In view of the time that has elapsed since the facts at the origin of this case and the absence of new information on the situation at the enterprise, the Committee is only in a position to recall the principle that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Compilation, op. cit., para. 1142].
7. 102. With regard to the legislative aspects of the case, the Committee notes the information submitted by the Government and recalls that the Committee of Experts, to which it has referred the legislative aspects of this case, is closely following the reforms related to the threshold of representativeness for collective bargaining purposes and its impact on the collective bargaining machinery as a whole. In view of the above conclusions the Committee will not pursue the examination of this case.