CMNT_TITLE

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Türkiye (RATIFICATION: 1993)

Other comments on C087

Observation

Direct Request

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Previous comment

Article 2. Right of workers, without distinction whatsoever, to establish and join organizations. Workers employed via private employment agencies. In its previous comment, the Committee had requested the Government to provide information on how workers employed temporarily via private employment agencies exercise their right to establish and join organizations of their own choosing. The Committee notes the Government’s indication that pursuant to the provisions of Act No. 6356, an employee engaged by a private employment agency is entitled to establish a trade union in the branch of activity of the agency, or freely to become a member of an existing one. The Government adds that section 19(4) of Law No. 4904 on Certain Regulations Regarding the Turkish Employment Agency provides that agreements specifying the condition of an employee being or not being a member of a union are invalid. The Committee takes due note of this information and requests the Government to provide concrete examples of unions established or joined by workers employed via private employment agencies.

Impact of sectoral classification. Domestic workers. In its previous comment the Committee had noted the Confederation of Progressive Trade Unions of Turkey (DİSK) (observation indicating that sectoral classification of unions by law makes it impossible for certain categories of workers such as domestic workers to exercise their freedom of association; and that in the workplaces which have both a production facility and an office or a store, organizing based on sectors makes it impossible for all workers to join the same union, because offices and production plants are mostly registered in different sectors. The Committee notes the Government’s indication that domestic workers directly employed by households can join trade unions operating in the General Affairs economic activity listed as sector number 20. The Government refers to IMECE Domestic Workers’ Union, which was established within section No. 20, as well as Hizmet-İş and Domestic Workers Solidarity Union (EVID-SEN) which are also active in organizing these workers. The Government adds that those employed in “domestic services” through private employment agencies are covered by the Code of Obligations. Regarding the possibility for all workers in a workplace to join the same union, the Government indicates that pursuant to section 4 of Act No. 6365 auxiliary activities along with the main activity carried out in a workplace shall be considered to belong to the main branch of activity and indicates that for example, marketing and administrative units in the production facilities are considered auxiliary activities, and within the branch of activity determined according to the main goods or services produced. The Committee takes note of the information provided and requests the Government to clarify whether workers employed in “domestic services” through private employment agencies can join the existing domestic workers unions or establish their own unions.

Article 3. Right of workers’ organizations to elect their representatives in full freedom and to organize their activities. In its previous comments, the Committee had noted that the last paragraph of section 10 of Act No. 4688 provides that in the case of non-respect of legal requirements concerning trade union meetings and decisions of general assemblies, the union executives are removed from office by decision of the labour court upon the application made by one of the members or by the Ministry of Labour. The Committee had recalled in this respect that any removal or suspension of trade union officers which is not the result of an internal decision of the trade union, a vote by the members, or normal judicial proceedings, seriously interferes with the exercise of the trade union office, and had requested the Government to review this provision. The Committee notes with regret that the Government does not provide any information in this respect and therefore reiterates its request.

Right to strike. In its previous comments, the Committee had noted that whereas on the one hand, the seventh paragraph of article 54 of the Constitution (prohibiting politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, go-slows and other forms of obstruction) had been repealed, on the other hand, section 58 of the Act on Trade Unions and Collective Labour Agreements (Act No. 6356) restricted lawful strikes to disputes during collective negotiations, and the Committee had requested the Government to take necessary measures to revise the legislation with a view to expressly recognizing in domestic law all forms of legitimate industrial action. The Committee notes the Government’s indication that the right to collective action is guaranteed in accordance with the provisions of the Convention and the European and international human rights treaties. The Government also refers to a Court of Cassation ruling dated 31 March 2016 providing that “according to international norms, protest actions that affect the economic and social conditions of workers or that are short-term and use of a democratic right against practices in the workplace are included in the right to take collective action. Such actions cannot be prohibited unless they are purely of a political nature”. The Committee recalls that sympathy strikes (provided that the underlying strike is lawful) and strikes calling for the recognition and exercise of fundamental liberties are also legitimate forms of collective action and requests the Government to indicate whether these forms of strike are recognized in the current administrative and judicial practice.

Determination of minimum service. In its previous comments, the Committee had noted that section 65 of Act No. 6356 granted the authority of determining a minimum service in the event of industrial action unilaterally to the employer and had requested the Government to review this provision with a view to ensuring that workers’ organizations were able to participate in the determination of a required minimum service at the workplace, and that failing agreement the matter may be referred to an independent body that has the confidence of the parties. The Committee notes the Government’s indication that this issue is not problematic in practice, nevertheless the Government is ready to revise section 65 if the social partners make such an application by mutual agreement. The Committee also notes the observations of the Turkish Confederation of Employers’ Associations (TISK) in this respect, indicating that although workers who may not participate in lawful strikes and lockouts are determined by the employer or the employer representative, the worker party has the right to appeal this within six working days of notice of this determination. The TISK further reiterates its previous observation that in practice, negotiations between employers and workers organizations on a proposed list of staff who may not participate in strikes and lockouts together with their substitutes by the employer side take place within six working days following commencement of collective bargaining. The Committee notes that the workers’ organizations do not make any observation in this respect. While noting that it would appear from the information provided that in practice, workers’ organizations may be involved at all stages of determination of minimum service, the Committee considers that the legislation should expressly afford this right to the workers’ organizations, instead of only indirectly allowing them to object to a list drawn-up unilaterally by the employer. Therefore, the Committee once again requests the Government, in consultation with social partners, to take appropriate steps to ensure the review of section 65 of Act No. 6356 with a view to ensuring that the law expressly guarantees the right of workers’ organizations to participate in the determination of a required minimum service at the workplace, and that failing agreement the matter may be referred to an independent body that has the confidence of the parties. In the meantime, the Committee requests the Government to monitor the application of section 65, with a view to ensuring the continued active involvement of workers’ organizations in the determination of minimum services.

Public sector. In its previous comment, the Committee had requested the Government to review the legislation concerning public service workers with the relevant social partners with a view to its amendment, so as to ensure that the ban on industrial action is limited to public servants exercising authority in the name of the State and those working in essential services. The Government indicates in this respect that restrictions are limited to senior public officials and to public servants in public services such as security and justice where the services cannot be disrupted. The Committee notes the KESK observation once again indicating that almost 3 million public employees are deprived of the right to organize industrial actions in a broader sense and that one of KESK’s core demands is related to legal guarantee for industrial actions. The Committee requests the Government to indicate specifically all the groups of public workers who have the right to establish and join organizations, but whose right of collective action is restricted by law and to indicate the legal provisions authorizing such restrictions.