REPRESENTATION (article 24) - TURKEY - C158 - 1997

Report of the Committee set up to examine the representation alleging non-observance by Turkey of the Termination of Employment Convention, 1982 (No. 158), made under article 24 of the ILO Constitution by the Confederation of Turkish Trade Unions (TURK-IS)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By a communication dated 2 January 1996, the Confederation of Turkish Trade Unions (TURK-IS) addressed to the Director-General of the ILO a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Turkey of the Termination of Employment Convention, 1982 (No. 158).
3. 2. The ratification of Convention No. 158 by Turkey was registered on 4 January 1995; it entered into force for this country on 4 January 1996.
4. 3. The provisions of the Constitution of the International Labour Organization concerning the making of representations are the following:
5. ARTICLE 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such a statement on the subject as it may think fit.
7. ARTICLE 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed is regulated by the revised Standing Orders adopted by the Governing Body at its 212th Session (March 1980).
10. 5. In accordance with articles 1 and 2 of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Turkey thereof and transmitted it to the Officers of the Governing Body.
11. 6. At its 265th Session (March 1996), the Governing Body, on the recommendation of its Officers, declared the representation receivable and set up a committee to examine it, composed of Mr. J. Albalate Lafita (Government member, Spain, Chairman), Ms. D. France (Employer member, United Kingdom) and Mr. W. Brett (Worker member, United Kingdom). At its 268th Session (March 1997), the Governing Body designated Mr. C. López Monis (Government member, Spain, Chairman) to replace Mr. J. Albalate Lafita, who was no longer a member of the Governing Body.
12. 7. The Government of Turkey presented its observations in a communication dated 20 November 1996.
13. 8. The Committee met on 25 March 1997 to discuss and adopt the present report.
14. II. Examination of the representation
15. 1. Allegations by the complainant organization
16. 9. Referring to the 1995 General Survey by the Committee of Experts on the Application of Conventions and Recommendations on Protection against Unjustified Dismissal, from which it quotes extracts, the complainant organization maintains that the legislation in force in Turkey does not give effect to the Convention. TURK-IS alleges that, with the exception of Act No. 657 respecting civil servants, the laws applicable to wage employment do not contain any provisions which would guarantee, in application of Article 4 of the Convention, that the employment of a worker may not be terminated "unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service". The trade union points out that in the same way, Labour Act No. 1475 does not provide that a worker may not be dismissed for reasons relating to his conduct or work "before he is provided an opportunity to defend himself against the allegations made", as required by Article 7 of the Convention.
17. 10. The organization believes furthermore that section 17(1) of the Labour Act, which authorizes dismissal on health grounds, is contrary to Article 6 of the Convention. It believes that section 17(2) of the same Act gives the concept of "serious misconduct" a broader definition than that contained in Article 11 of the Convention. Finally, TURK-IS notes that although Article 12 of the Convention stipulates that a worker whose employment has been terminated shall be entitled to a severance allowance, section 14 of the Labour Act and section 20 of Maritime Labour Act No. 854 make the payment of this compensation subject to seniority of one year in the service of the same employer, while under section 6 of the Journalists' Labour Act No. 5953 the precondition for entitlement is five years of professional experience.
18. 2. The Government's statement
19. 11. The Government states that the Convention has not yet been incorporated into national legislation. A Bill to this effect had been placed before the National Assembly but was cancelled during the dissolution prior to the general elections of 24 December 1995. The Bill is now being revised and will be presented for discussion to the social partners before being retabled. This is why for the time being the Convention has been applied only in part through the provisions of section 14 of Labour Act No. 1475 and the analogous provision of the Maritime Labour Act, which provide for the payment of a severance allowance equal to one month of complete remuneration for each full year of service with the same employer in the event of the termination of the employment contract at the initiative of the employer for a reason other than immoral or dishonourable conduct. The periods of employment beyond one year provide entitlement to a pro rata payment. Journalists are entitled to compensation in all cases of dismissal, provided that they have a period of continuous employment of five years with the same employer.
20. 3. The Committee's conclusions
21. 12. The Committee notes first of all that the representation was addressed to the International Labour Office, in the form of a facsimile communication, dated 2 January 1996, i.e. two days before the date on which the Convention came into force for Turkey. The Committee notes in this respect the unusual nature of a representation requesting the Governing Body to note the non-observance of a Convention from the very first day of its entry into force.
22. 13. The Committee furthermore notes that the Government freely acknowledges that the legislative provisions in force are not sufficient to give effect to the Convention. The Government states that due to political and institutional circumstances, it was not possible, during the 12 months between the registration of ratification and the entry into force (under Article 16, paragraph 3, of the Convention) to adopt a Bill which, it states, would have incorporated the provisions of the Convention into national law. On 20 November 1996, it stated that a revised Bill would be presented for discussion to the social partners before being placed once again on the agenda of the National Assembly.
23. 14. The Committee notes that the complainant organization does not allege that the Government deliberately delayed the adoption of the Bill, nor does it make any comments on the content of the latter. In these circumstances, the Committee can only emphasize that the Government should as soon as possible take the measures required by Article 1 of the Convention, which stipulate that "the provisions of this Convention shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with national practice, be given effect by laws or regulations".
24. 15. Finally, the Committee has been informed by the competent branch of the International Labour Office that in accordance with the usual practice consisting of making the first request for a detailed report on the application of the Convention under article 22 of the Constitution of the ILO during the year following that in which the Convention comes into force for the country, a request for a first detailed report was addressed to the Government in February 1997. This report should reach the ILO between 1 June and 1 September 1997 for examination by the Committee of Experts at its session in November-December 1997. On the basis of this first report, as well as, where applicable, observations from employers' and workers' organizations, it will be for the Committee of Experts to make an in-depth legal analysis of national legislation and practice with regard to the obligations entered into and to make the observations which it considers appropriate.
25. III. The Committee's recommendations
26. 16. The Committee recommends the Governing Body:
27. (a) to adopt the present report;
28. (b) to urge the Government:
29. (i) to take as soon as possible the necessary measures to give full effect to the provisions of the Convention, in accordance with Article 1 of the latter; and
30. (ii) to provide in its first detailed report on the application of the Convention complete information in reply to each of the questions of the report form approved by the Governing Body, on the measures taken or to be taken to this end;
31. (c) to declare closed the proceedings initiated before the Governing Body following the representation made by the Confederation of Turkish Trade Unions (TURK-IS).