Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

With reference to its observation, the Committee requests that the Government provide further information on the following points.

At the outset, the Committee notes that, with the exception of the right to organize of private security personnel, the Government’s report does not address any of the points previously raised by the Committee. In particular, the Committee recalls that it requested the Government to specify the matters relating to the functioning and the activities of trade unions which are governed by the law on associations and the practical implications for trade unions of these provisions. A number of additional points arise from the draft bills amending the Unions Act No. 2821 and the collective labour agreements, strike and lockout Act No. 2822, which the Committee will also address below. The Committee requests the Government to ensure that its next report also responds to matters raised in its direct request and to clarify the extent to which the law on associations is applicable to trade unions.

Article 2 of the Convention. 1. The Committee recalls that under article 51 of the Constitution the right to establish and join a union can be restricted on the following grounds: national security, public order, prevention of crime, general health and morals and the protection of the freedom of others. The Committee underlines that a state of emergency can only justify restrictions on the right to organize in circumstances of extreme gravity and on the condition that the restrictions are limited in scope and duration to what is strictly necessary to deal with the situation in question (see General Survey on freedom of association and collective bargaining, 1994, paragraph 41). The Committee considers that the general terms - such as general health and morals and the protection of the freedom of others - in which the abovementioned restrictions are set forth in article 51 of the Constitution could potentially give rise to unacceptable restrictions in respect of the rights under this Convention. It therefore requests the Government to consider amending article 51 to ensure that restrictions to the right to organize may only be possible in exceptional circumstances and, in the meantime, to keep it informed of any practical application of these restrictions.

2. (a) The Committee recalls that several categories of workers are denied the right to organize either because they are not covered by Act No. 2821 or because they were specifically excluded from this right by legislation governing their status. Such categories of workers include: homeworkers, private security personnel, contract personnel and apprentices. With respect to private security personnel, the Committee notes with interest that, according to the Government’s report, Act No. 5188 repeals Act No. 2495 under which this category of workers was forbidden to join unions. The Committee requests the Government to provide a copy of Act No. 5188 and to indicate in its next report the measures taken or envisaged so as to ensure that the other categories of workers mentioned above enjoy the right to organize, in accordance with Article 2.

(b) Regarding foreign workers, the Committee recalls that section 5 of Act No. 2821 provides that a worker must be a Turkish citizen in order to be a founding member of a union. The Committee notes that the draft bill amending Act No. 2821 no longer refers to the condition of nationality but requires that a person must be in full possession of the civic rights in order to establish a trade union. The Committee requests the Government to clarify the meaning of "civic rights" and to indicate whether foreign workers enjoy such rights, at least after a reasonable residency period, and will be able to establish organizations of their own choosing in accordance with Article 2.

(c) The Committee recalls that, under paragraph 3 of section 22 and paragraph 2 of section 25 of Act No. 2821, a number of formalities, and in particular the intervention of a public notary, are required to become a member of a trade union or to resign from it. The Committee notes that the draft bill amending Act No. 2821 strengthens the observance of these provisions since members of the union executive boards who have not complied with the formalities shall be sentenced to a term of imprisonment. In its comments, the Confederation of Progressive Trade Unions of Turkey (DISK) also refers to the compulsory intervention of a notary for the members’ affiliations and resignations as one of the restrictions to the right to organize. The Committee requests the Government to remove the required intervention of a notary from sections 22 and 25 and to withdraw the corresponding sanctions from the draft bill so as to fully guarantee the free exercise of the right to organize.

(d) The Committee recalls that section 14 of the Public Employees’ Trade Union Act No. 4688 prohibits public employees from belonging to more than one trade union. Bearing in mind that Act No. 5198 amending Act No. 4688 maintains this restriction, the Committee once again requests the Government to take the necessary measures to ensure that public employees in more than one occupational activity have the right to belong to the trade unions corresponding to each of their activities if they so wish. Further, the Committee requests the Government once again to clarify whether section 22 of Act No. 2821 allows workers employed in more than one occupational activity to join more than one union corresponding to each of these activities if they so wish, even if they are in the same overall branch of activities.

(e) Recalling that the right to join the organization of one’s own choosing includes the free determination of the level of representation, the Committee requests the Government to repeal the prohibition concerning the establishment of trade unions on an occupational or workplace basis in section 3 of Act No. 2821 and section 4 of Act No. 4688.

(f) As regards the dual criteria for recognition of the right to conclude a collective agreement under section 12 of Act No. 2822, that is representation of at least 10 per cent of the workers in a given branch of activity and more than half of the workers employed in the worksite or each of the worksites to be covered by the collective agreement, the Committee refers to its comments under Convention No. 98.

3. With respect to public officials, the Committee recalls that, under section 6 of Act No. 4688, a public official must have been in employment for two years to become a founding member of a union. Bearing in mind that, according to the Government, the draft bill amending Act No. 4688 will remove from section 3(a) the condition on the completion of the probationary period to join a trade union, the Committee requests the Government to amend accordingly section 6 so as to guarantee that the right of public employees to establish an organization of their own choosing does not hinge on their particular status of employment.

Article 3. 1. The Committee takes note of the conclusions of the Committee on Freedom of Association in Case No. 2303 (see 335th Report, paragraphs 1357-1378) concerning the suspension of a strike in the glass industry on grounds of national security and the comments of the International Confederation of Free Trade Unions (ICFTU) in respect of section 33 of Act No. 2822. The Committee notes that, under section 33, the Council of Ministers can suspend for 60 days a lawful strike for public health and national security reasons. Appeals can be lodged with the Council of State. The Committee notes that, in accordance with section 34, if the parties have not been able to reach a settlement upon the expiry of the suspension period, the Ministry of Labour refers the matter to compulsory arbitration. The Committee notes that the draft bill amending Act No. 2822 modifies section 33 in order to provide for the advisory opinion of the Council of State before the suspension is decided by the Council of Ministers. The Committee recalls that a strike may be prohibited in a situation of acute national crisis, and that in such instances compulsory arbitration can be acceptable to settle the dispute. The Committee notes that the issue at hand lies with the exercise by the Council of Ministers of its power under section 33 rather than with the circumstances provided for such exercise under the law. In this respect, the Committee, like the Committee on Freedom of Association, considers that the responsibility for suspending a strike under section 33 should lie with an independent body which has the confidence of all the parties concerned. The Committee requests therefore the Government to amend section 33 accordingly so that the suspension of the strike lies with the courts and that the right of workers’ organizations to organize their activities and formulate their programmes free from interference by the public authorities in accordance with Article 3 is fully guaranteed. The Committee also requests the Government to keep it informed of any practical application of section 33 and to submit its reply in respect of the four strikes called by one of DISK’s affiliates in the rubber sector, to which DISK refers in its comments attached to the Government’s report, and which have reportedly been postponed by the Council of Ministers.

2. (a) As regards section 18 of Act No. 4688, the Committee notes with interest that, under Act No. 5198 amending Act No. 4688, there is no longer an obligation for union officers to take unpaid leave from their institutions when elected.

(b) In its previous comments, the Committee had requested clarifications on the role of the Ministry of Labour and Social Security in the determination of the number of members of a trade union. The Committee notes that Act No. 5198 amends sections 14 and 30 of Act No. 4688. Under section 14, as amended, unions are no longer required to send to the Ministry of Labour and Social Security a copy of public employees’ applications to join a particular union (on the basis of which the Ministry determined the total number of unions’ members). Under section 30, as amended, the Ministry of Labour and Social Security determines each year the total membership of public employees’ unions and confederations on the basis of reports on the total number of public employees in a given institution and the total number of public employees who are affiliated to unions, which are jointly established and signed by public employers and unions, using lists setting out the number of unions’ members whose dues are deducted. Noting that the ICFTU referred to representations submitted previously by public employees’ unions on the manipulation of figures by the Government in order to deny them the right to collective bargaining, the Committee trusts that the amendments introduced under Act No. 5198 will prevent any interference by public authorities in this respect.

Article 4. The Committee recalls that section 37 of Act No. 4688 provides for the dissolution of a union or a confederation ordered by the labour court and, at the same time, makes reference to section 54 of the Law on Associations. The Committee recalls that it raised this issue in light of comments from the Confederation of Public Servants Trade Unions (KESK) to the effect that the Law on Associations empowers Governors to dissolve a union or a confederation without any court decision. In its previous comments, the Committee noted that, according to the Government, governors do not have the power to dissolve a union but they can decide to suspend the activities of an association. This decision should be submitted within 48 hours to a court; if it is not submitted in a timely fashion to the court, it shall cease to have effect. The Committee recalls that, if the legislation allows dissolution or suspension of trade unions by administrative authority, the organizations must have the right of appeal to an independent and impartial judicial body and the decision of the administrative authority should not take effect until a final decision is handed down by the judicial authority (see General Survey, op. cit., paragraph 185). The Committee therefore requests the Government to amend section 37 of Act No. 4688 in order to avoid the activities of the union may be suspended by a decision of the governor, even if only for a brief period, and to ensure that the suspension and the dissolution of trade unions can occur only through a final decision rendered by a judicial authority with all due judicial safeguards.

Article 5. The Committee recalls that, under section 3(g) of the Act No. 4688, a confederation must be constituted of at least five unions from different sectors. The Committee requests the Government to provide information on the practical application of section 3(g) and to amend it in case it restricts the right of public employees’ unions to join confederations of their own choosing, including those which also group together organizations from the private sector. The Committee underlines that its request also applies to section 2 of Act No. 2821 which provides for a similar definition of a confederation.