REPRESENTATION (article 24) - TURKEY - C011, C098 (Lodged: 1982 - Report:1992)

Report No. 282 of the Committee on Freedom of Association, Cases Nos. 997, 999, 1029 -- Representation concerning the non-observance by Turkey of the Right of Association (Agriculture) Convention, 1921 (No. 11), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), made by the General Confederation of Trade Unions of Norway under article 24 of the Constitution of the ILO -- Complaints against the Government of Turkey presented by the World Confederation of Labour (WCL), the World Federation of Trade unions (WFTU), the International Confederation of Free Trade Unions (ICFTU) and several other trade union organisations

Complaint Procedure

1. 1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 20, 21 and 27 February 1992 under the chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body.
2. 2. The Committee had before it various complaints of infringements of trade union rights in Turkey presented by a number of trade union organisations (Cases Nos. 997, 999 and 1029), as well as a representation concerning the non-observance by Turkey of the Right of Association (Agriculture) Convention, 1921 (No. 11), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), made by the General Confederation of Trade Unions of Norway under article 24 of the Constitution of the ILO in June 1982.
3. 3. The Committee submits, for the Governing Body's approval, a report on the pending cases and the representation presented in virtue of article 24 of the Constitution of the ILO.
4. 4. The Committee has examined the substance of these cases 24 times since 1981. It has submitted several interim reports to the Governing Body, most recently in November 1991 (see 280th Report of the Committee, approved by the Governing Body at its 251st Session in November 1991).
5. 5. The Government sent a communication on 24 January 1992.
6. 6. Turkey has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Right of Association (Agriculture) Convention, 1921 (No. 11).
7. A. Previous examination of the cases
8. 7. Following the series of initial complaints presented in the aftermath of the military take over of September 1980, the Committee has examined this case from a dual perspective looking, on the one hand, at the legislative aspects and, on the other hand, at the factual issues. Upon examining the case in November 1990, the Committee summarised the history of these cases and recalled in some detail the factual and legal issues they raised.
9. 8. In the interim report that it submitted to the Governing Body in November 1991, the Committee made the following recommendations:
10. (a) The Committee requests the Government to return the assets of DISK and its affiliated organisations. It requests it to keep it informed of the measures taken in that respect and of the developments concerning the legal situation of the DISK.
11. (b) The Committee invites the Government to pursue its efforts with a view to expanding and accelerating constructive tripartite discussions on amendments to be brought to its constitutional and legislative provisions which are not in conformity with the principles of freedom of association, so that terms and conditions of employment may be regulated through voluntary negotiation, in accordance with Article 4 of Convention No. 98.
12. (c) The Committee requests the complainants and the Government to provide further information on the allegations relating to the events during the miners' march from Zonguldak to Ankara on 6 January 1991.
13. B. The Government's reply
14. 9. In its communication of 24 January 1991, the Government explains that following the October 1991 early general elections, the True Path Party (DYP) and the Social Democrat Populist Party (SHP), which had been in opposition since 1983, came to power as a coalition government. The Government states that it is determined to make necessary adjustments, particularly in the labour legislation, in order to enhance its compatibility with existing international labour principles and standards as appropriate and justified by economic and social circumstances of the country. This determination is reflected in the Government Programme presented before the Grand National Assembly. Accordingly, the Government is eager to take necessary legislative steps in furthering trade union rights and freedoms.
15. 10. In relevant parts, the Government Programme of 25 November 1991 states in particular as follows:
16. (The Turkish Constitution ...) will provide for all the conditions of a participatory democracy ..., and for human rights, individual rights and freedoms and trade union rights as accepted in the most advanced countries. ...
17. The rights and freedoms of individuals and organisations should be in accordance with the most advanced mentality of our day.
18. We suggest the formation of such a constitution as a result of a consensus reached among the concerned organisations in the country, our people and above all the political parties. We firmly believe that "consensus" must be a basic conditions if constitutions are to last.
19. ...
20. Turkey is obliged to create a social state. Our government shall take the necessary measures to structure a "social state of law", based upon sharing the contemporary global views on the functions of the state and realising development in a rapid, balanced and just manner.
21. Trade union rights will be institutionalised in conformity with ILO standards. Employer-employee relations will be brought to a level which will improve social security and strengthen social peace in Turkey.
22. ...
23. Special importance will be given to the preservation of labour and peace in employer-employee relations.
24. ...
25. Necessary legislative adjustments will be made to ensure trade union rights and freedoms for civil servants. Necessary initiatives will be launched for the constitutional aspect of the matter.
26. 11. The Government states that, as a result, in close cooperation with employers' and workers' organisations, it has already initiated procedural formalities for the ratification of the Freedom of Association and Protection of the Right to Organise Convention (No. 87) and the Labour Relations (Public Service) Convention (No. 151). It is the Government's conviction that the ratification of the Conventions in question and the bringing of the current legislation into conformity with ILO standards will not only greatly improve industrial relations, but will also eliminate the basis for allegations which sometimes seem to be of political rather than technical nature.
27. 12. The Government also indicates that studies have been initiated by the Ministry of Justice aiming at amendments which will shorten the duration of trials as well as reduce and simplify the complexity of the procedural formalities in the Penal Law and Law on Procedure for Penal Trials. Moreover, the Government established a new ministry responsible for human rights, with a view to improving the related legislation and practices as regards international norms and standards.
28. 13. As for the assets of DISK and its affiliates, the Social Democrat Populist Party, a coalition partner, had filed a suit to the Constitutional Court when it was in opposition, requesting the cancelling of provisional section 9 of Act No. 3713 concerning Measures Against Terrorism, which stipulated that the assets of DISK and its affiliates be handed over to the Treasury. This case is subjudice at the Constitutional Court. On the other hand, legislative arrangements to ensure the restitution of the assets of DISK and its affiliates are on the agenda of the Council of Ministers.
29. 14. Finally, the Government considers the case of the miners' march from Zonguldak to Ankara on 6 January 1991, as closed, since 201 persons who had been taken into custody were released the very next day and no case has been filed against any of the marchers.
30. 15. While aiming at bringing its national legislation into line with the norms and standards embodied in international instruments, the Government hopes that the foregoing explanation and the positive developments under way will be regarded by the Committee not only as an expression of good will but also as the determination of the Government which took office only nine weeks ago. The Government will duly inform the Committee of further developments in accordance with the established procedure.
31. C. The Committee's conclusions
32. 16. The Committee notes with interest the Government's communication, its stated intentions as regards the changes to be made to the labour law and industrial relations in Turkey. It observes in particular that the Government expresses a firm commitment to amend the constitutional and legislative provisions which are not in conformity with the principles of freedom of association, and to ratify Conventions Nos. 87 and 151. The Committee firmly hopes that these intentions will be rapidly followed by concrete measures and trusts that the Government will be able to announce their enactment and implementation in the near future. The Committee recalls that the provisions which restrict union rights and are not compatible with the principles of freedom of association concern:
33. - the prohibition of trade unions from engaging in any political activity;
34. - the ban on various forms of strikes;
35. - the prohibition of teachers from striking;
36. - the use of binding arbitration to bring a strike to an end in cases of work stoppages which result from a strike which threatens to endanger the life, personal safety or health of the whole or part of the population and in the case of acute national crises;
37. - the denial of the right to collective bargaining of trade unions which do not represent more than 50 per cent of the workers in an enterprise, and 10 per cent of the workers in a specific branch.
38. The Committee also reminds the Government that the advisory services of the International Labour Office are at its disposal if it so wishes. It requests the Government to keep it informed of the developments in that respect.
39. 17. As regards the events surrounding the miners' march from Zonguldak to Ankara on 6 January 1991, the Committee notes that all the persons who had been taken into custody were released the next day and that no charges were laid against any of them. The Committee recalls the principles it emphasised in this respect (280th Report, Case No. 999 et al., para. 34; Digest of decisions and principles of the Freedom of Association Committee, paras. 154-168). It hopes that in the future, and in line with the principles stated in the Government's programme, workers who wish peacefully to demonstrate or to hold meetings or marches will be allowed to do so without interference by the authorities. The Committee considers that this aspect of the case does not call for further examination.
40. 18. With respect to the assets of DISK and its affiliates, the Committee notes that judicial proceedings have been instituted in the Constitutional Court to challenge the provisions of Act No. 3713 which stipulated that these assets were to be handed over to the Treasury. The Committee further notes that legislative arrangements to ensure the restitution of said assets are currently on the agenda of the Council of Ministers. The Committee welcomes these positive developments and strongly hopes that measures will be taken rapidly so that DISK may in the near future recover its assets, which had been confiscated contrary to the principles of freedom of association. The Committee requests the Government to keep it informed of the legislative or judicial developments on this issue.
41. The Committee's recommendations
42. 19. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
43. (a) Noting with interest the stated intentions of the Government, and in particular its commitment to amend constitutional and legislative provisions which are not in conformity with the principles of freedom of association, the Committee firmly hopes that these intentions will be rapidly followed by concrete measures and that the Government will be able to announce their enactment and implementation in the near future. The Committee draws the Government's attention to the fact that the advisory services of the International Labour Office are at its disposal if it so wishes. It requests the Government to keep it informed of developments in this respect.
44. (b) Noting that legislative arrangements are under consideration by the Council of Ministers as regards the restitution of the assets of DISK, and that judicial proceedings have also been instituted in that respect, the Committee strongly hopes that DISK will rapidly recover its assets, which had been confiscated contrary to the principles of freedom of association. The Committee requests the Government to keep it informed of the legislative or judicial developments on this issue.
45. (c) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.