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

The Committee takes note of the information provided in the report communicated by the Government, as well as the observations attached to the report, made by the following workers’ organizations: the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Public Employees of Turkey (TURKIYE-KAMU-SEN) and the Confederation of Turkish Trade Unions (TURK-IŞ). The Committee also notes the responses of the Government to the observations made by the Independent Public Sector Communication Employees’ Union (BAGIMSIZ HABER-SEN), by DISK, by the Confederation of Public Employees Trade Unions (KESK), by the Turkish Union of Public Employees in the Education, Training and Science Services (TÜRK EGITIM-SEN) and by the International Confederation of Free Trade Unions (ICFTU). The Committee requests the Government to transmit its comments on the observations sent by the ICFTU in a communication dated 15 December 2003.

In its previous comments, the Committee examined the conformity with the Convention of the following laws: Act No. 4688 on public employees’ trade unions, the Trade Unions Act No. 2821, the Collective Labour Agreements, Strike and Lockout Act No. 2822 and Act No. 3218 imposing, under provisional section 1, compulsory arbitration in export processing zones.

The Committee notes that since it last examined the Government’s report, certain sections of Act No. 4688 have been amended by Act No. 5198 and a draft comprising further modifications to Act No. 4688 is under preparation. With respect to Acts Nos. 2821 and 2822, the Committee notes that two draft bills have been prepared and that consultations thereon are under way. The Committee requests the Government to transmit the second text amending Act No. 4688 with its next report as well as an updated version of the texts amending Acts Nos. 2821 and 2822. Finally, the Committee takes note of the entry into force of the new Labour Act No. 4857.

At the outset, the Committee notes with satisfaction Act No. 4771, which has repealed provisional section 1 of Act No. 3218 under which compulsory arbitration was imposed for a ten-year period in export processing zones for the settlement of collective labour disputes. Further, the Committee notes with interest that the draft bills amending Acts Nos. 2821 and 2822 contain improvements in the application of the Convention and thereby address some of the questions raised by the Committee:

n  the removal of two conditions of eligibility for the election of trade union officers: the condition of nationality and the condition of at least ten years of employment (Act No. 2821, section 14, paragraph 14);

n  the abrogation of the provision under which trade union officers’ mandates are suspended in case of candidacy in local or general elections and terminated in case of election (Act No. 2821, section 37, paragraph 3);

n  the abrogation of the provision under which the Governor is entitled to appoint an observer at the General Congress of a trade union (Act No. 2821, section 14, paragraph 1);

n  the removal from the list of activities where strikes are prohibited of the following activities: the production of lignite coal for thermal plants; banking and public notaries; sea and land transport or railway, and other rail transport (Act No. 2822, section 29);

n  the removal of the prohibition of unions’ television and radio stations which results from Act No. 3984;

n  the exclusion of unions from the scope of section 43 of Associations Act No. 2908, which provide that associations are allowed to invite any foreigner to Turkey or send one of their members abroad, provided due notification is given in advance to the Governor.

A reading of the draft bills reveals that a number of concerns raised by the Committee remain valid:

n  the exclusion from the right to organize of a number of public employees (sections 3(a) and 15 of Act No. 4688);

n  the criteria under which the Ministry of Labour determines the branch of activity covering a worksite (unions must be constituted on a branch activity basis) and the implications of such determination on the workers’ right to form and join organizations of their own choosing (sections 3 and 4 of Act No. 2821);

n  the detailed provisions of Acts Nos. 4688, 2821 and 2822 in respect of the internal functioning of unions and their activities;

n  the removal of union executive bodies in case of non-respect of requirements set out in the law which should be left to the free determination of the organizations (section 10 of Act No. 4688);

n  the right to strike: (a) the public service (section 35 of Act No. 4688); (b) under Act No. 2822.

Article 2 of the Convention. Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. 1. The Committee recalls that, under section 3(a), the definition of "public employee" refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees who are prohibited from joining trade unions. The Committee notes that, according to the ICFTU, over 400,000 public employees are excluded from the right to organize and that, according to KESK, public employees are increasingly employed under fixed-term contracts and thereby excluded from the scope of Act No. 4688. According to the Government, the draft bill amending Act No. 4688 will remove the reference to the "trial period" and that the definition of "public employees" will be revised so as to include in particular, special security personnel, although it seems that public employees holding positions of trust will remain outside the scope of Act No. 4688.

The Committee underlines that Article 2 of the Convention provides that workers without distinction whatsoever should have the right to form and join organizations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. It follows, in particular, that the right to organize of public employees cannot hinge on the duration of their contract of employment. As regards public employees "in position of trust", the Committee recalls once again that it is not compatible with the Convention to exclude totally these public officials from the right to organize. On the other hand, to bar such officials from the right to join trade unions representing other workers is not necessarily incompatible with the Convention provided that two conditions are met: first, that the officials concerned have the right to form their own organizations to defend their own interests; and second, that the category of the employees concerned is not so broadly defined as to weaken the organizations of other public employees by depriving them of a substantial proportion of their actual or potential membership (see the General Survey on freedom of association and collective bargaining, 1994, paragraphs 87 and 88). The Committee trusts that the draft bill will amend sections 3(a) and 15 so that all public employees, with the exception of the armed forces and the police, will have the right to organize in accordance with Article 2, and requests the Government to keep it informed in this respect.

2. The Committee recalls that its previous comments referred to the conclusions of the Committee on Freedom of Association in Case No. 2126, and to sections 3 and 4 of Act No. 2821, under which trade unions are constituted on a branch activity basis and the branch of activity covering a worksite is determined by the Ministry of Labour. The Committee requested the Government to indicate the criteria on which the Ministry of Labour makes the determination under section 4 and to provide any text governing this determination. The Committee notes that the Government’s report does not address this issue. At the same time, the Committee notes that the draft bill amending Act No. 2821 modifies the list of branches of activity. Thus, some branches currently listed in section 60 of Act No. 2821, will disappear or be merged with other branches of activity. The Committee notes that under provisional section 2 of the draft bill, unions currently established in branches of activity that will be abolished or merged with others, must hold an extraordinary congress in order to draw up their new rules and modalities of operation.

The Committee recalls that it considers that the setting up of broad bands of classification relating to branches of activity for the purpose of clarifying the nature and scope of industrial level unions is not in itself incompatible with the Convention. On the other hand, the Committee considers that this classification, and its modification, should be determined according to specific, objective and pre-established criteria relating in particular to the nature of the functions carried out by the workers at the worksite concerned so as to avoid any arbitrary determination and thus to guarantee fully the right of workers to form and join organizations of their own choosing. The Committee once again requests the Government to specify the criteria on which a particular worksite is classified in a given branch of activity. Further, the Committee requests the Government to take the necessary measures so that members of a union which may be affected by the modification of the list of branches of activity will have the right to be represented by the union of their choice in accordance with Article 2. In this connection, as regards workers who, by reason of a decision taken under section 4 have lost their right to be represented by the trade union Dok Gemi-Is (see Case No. 2126) which they had freely chosen, the Committee once again requests the Government to indicate the measures taken so as to restore to these workers their right to establish and join the organization of their own choosing. The Committee requests the Government to keep it informed on all the measures taken and of the practical implications for unions of the entry into force of the modified list of branches of activity.

Article 3. 1. Right of workers’ organizations to draw up their constitutions and rules. In its previous comments, the Committee underlined that several provisions of Acts Nos. 2821, 2822 and 4688, unduly regulate trade union internal matters and that this could give rise to undue interference by public authorities in the functioning and the activities of trade unions. The Committee notes that according to the Government, the provisions in question of Act No. 4688 do not aim at limiting organizations’ independence. They were introduced with the sole objective of ensuring a democratic functioning of trade unions and transparency in their activities, as well as of protecting the rights of their members.

The Committee recalls first that its comments concern not only Act No. 4688 but also Acts Nos. 2821 and 2822. It notes in this respect that Act No. 5198 and the draft bills amending Acts Nos. 2821 and 2822 do not lessen the level of detail of the framework within which unions are to operate. The Committee recalls that legislative provisions, which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey, op. cit., paragraphs 110 and 111). The legislation may oblige unions to adopt provisions on various issues but should not dictate the contents of these provisions. Details could always be provided in guidelines attached to the Acts that the unions would nonetheless remain free to follow. The Committee expresses the firm hope that its comments will be taken into account in the draft bills that are to amend Acts Nos. 4688, 2821 and 2822 and requests the Government to keep it informed in this respect. Finally, with respect to section 10 of Act No. 4688 under which a union executive committee can be withdrawn in case of non-compliance with requirements which should be left to the free determination of the occupational organizations, the Committee refers to its comments made above and requests the Government to take the necessary measures to amend section 10 of the Act so as to ensure that workers’ organizations may organize their administration and activities without any interference by public authorities on grounds which are incompatible with Article 3.

2. Right of workers’ organizations to elect their representatives freely. The Committee recalls that under section 18 of Act No. 4688 the mandate of a union officer is suspended if the latter is a candidate in local or general elections. The Committee notes that, according to the Government, this provision is designed to ensure that candidates are on an equal footing and to prevent a union’s resources being used for political purposes. The Committee notes with interest that the corresponding provision of Act No. 2821, section 37, paragraph 3, has been removed by virtue of the draft amending bill, whereas the amendment made by Act No. 5198 to section 18 of Act No. 4688 maintains this restriction and appears to further exclude union officers from union office in the event that their candidacy in local and general elections fails. The Committee considers that while the issue of public employees’ participation in local or general elections may be relevant to the general status of public servants, it should not result in a restriction on the choice of union officers made by union members. The Committee therefore requests the Government, in the event that there is no prohibition or restriction on public servants’ candidacy for local and general elections, to take the necessary measures to amend section 18 of Act No. 4688 further, so as to enable public employees’ organizations to determine freely whether union officers may remain in their posts during their candidacy or election for local or general elections and to permit unions’ by-laws to determine whether such officers shall remain in their posts in the event that their candidacy in local and general elections fails.

3. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes free from government interference. Public employees’ trade unions. The Committee recalls that section 35 of Act No. 4688 makes no mention of the circumstances in which strike action may be exercised in the public service. The Committee notes that, in its report, the Government links this particular issue with the studies which are under way and which aim at revising the definition of "public employee". The Committee underlines that restrictions to the right to strike in the public service hinge solely on the functions carried out by the public employees concerned. Thus, restrictions on the right to strike in the public service should be limited to public servants who are exercising authority in the name of the State and those working in essential services in the strict sense of the term (see General Survey, op. cit., paragraphs 158-159). Where the right to strike is prohibited or limited in a manner compatible with the Convention, compensatory guarantees should be afforded to public servants, such as mediation and conciliation procedures or, in the event of deadlock, arbitration with sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., paragraph 164). The Committee trusts that the Government will take the necessary measures in the near future to amend Act No. 4688 in a manner compatible with Article 3 along the lines set out above and requests the Government to keep it informed of the progress made in this regard.

Other trade unions. The Committee recalls that it has commented on several occasions on certain provisions of Act No. 2822 concerning the right to strike and which are incompatible with the Convention. The Committee notes in this respect the comments made by the ICFTU on the specific restrictions placed on the right to strike, both in law and practice, and the severe penalties applicable to the participation in an illegal strike. The Committee recalls that its previous comments concerned the following provisions:

n  section 25 prohibiting strikes for political purposes, general strikes and sympathy strikes; article 54 of the Constitution contains similar prohibitions and prohibits as well occupation of work premises, go-slow strikes, and other forms of obstruction;

n  section 48 placing severe limitation on picketing;

n  sections 29 and 30 prohibiting strikes in many services which cannot be considered to be essential in the strict sense of the term and section 32 under which compulsory arbitration at the request of any party may be imposed in the services where strikes are prohibited. In light of the services remaining in the draft bill amending section 29, the Committee underlines that activities concerning the production, the refining and the distribution of natural gas, town gas, and petroleum, cannot be considered as essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population;

n  sections 27 (referring to section 23) and 35 providing for an excessively long waiting period before a strike can be called. In this respect, the Committee notes that the Government agrees that the period running from the beginning of the negotiations until the strike actually begins is considerably long and that sections 22 and 23 are amended in the draft bill; the Committee requests the Government to clarify the extent to which the waiting period has been reduced under sections 22 and 23 as amended and to communicate an updated version of the amended texts;

n  sections 70-73, 77 and 79 providing for heavy sanctions, including imprisonment, for participating in "unlawful strikes" the prohibition of which, however, is contrary to the principles of freedom of association. In this respect, the Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and, furthermore, if measures of imprisonment are at all to be imposed they should be justified by the seriousness of the offences committed.

Noting that the draft bill amending Act No. 2822 does not address most of the concerns previously raised by the Committee, the Committee urges the Government to take the necessary measures to amend the abovementioned provisions so as to bring them into conformity with Article 3.

Finally, the Committee notes that the ICFTU has referred, in its observations, to restrictions on freedom of association which are particularly acute in the four provinces in the south-east of the country and to the detention of many trade unionists under section 312 of the Penal Code which provides for imprisonment for "inciting hatred". The Committee notes that, according to the Government, the state of emergency was lifted throughout Turkey and that section 159 of the Penal Code was amended so that freedom of expression of non-violent thoughts is no longer considered as an offence. The Committee notes that the Government has not addressed the particular issue of the application of section 312 of the Penal Code to trade unionists in the legitimate exercise of their activities. The Committee therefore requests the Government to provide its reply in this respect and to indicate the measures taken so as to ensure that section 312 is not applied to trade unionists carrying out legitimate trade union activities.

With respect to the lawsuit brought against DISK, the Committee notes that the Government confirms that a lawsuit was brought against the Confederation under section 54 of Act No. 2821 and that the case is under way. The Committee notes that although the Government submits that the required documents concerning the union officers elected during the 2000 General Congress of DISK were incomplete, the Government seems to confirm that one of the reasons for the lawsuit related to the ten-year service requirement that has been repealed from the Constitution. The Committee notes that the existence of an organization, which has duly acquired legal personality and which is currently functioning, is being threatened by a lawsuit initiated more than two years ago and which is based on a condition of eligibility which has been repeatedly criticized by the Committee as a violation of Article 3. The Committee considers that such a lawsuit brought to dissolve an organization not only interferes with the right of workers’ organizations to elect freely their representatives but also more basically infringes the workers’ right to establish and join organizations of their own choosing. The Committee trusts therefore that the Government will take the necessary measures to withdraw the lawsuit, all the more so as the condition of eligibility will be repealed from Act No. 2821. The Committee requests the Government to keep it informed in this respect.

The Committee expresses the hope that, in the forthcoming legislative reforms concerning the right to organize, the comments made above will be taken into account. The Committee once again recalls that ILO technical assistance is available in this regard should the Government so desire.

The Committee is raising a number of other points in a request addressed directly to the Government.