Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report.

The Committee takes note of the observations by the following workers organizations: the Confederation of Turkish Public Employees Union (TURKIYE-KAMU-SEN) (communication dated 9 February 2006), the Confederation of Progressive Trade Unions of Turkey (DISK) (communication dated 9 June 2006), and the International Confederation of Free Trade Unions (ICFTU) (communications dated 12 July 2006 and 10 August 2006). The Committee notes the observations of the Government regarding the communication of the TURKIYE-KAMU-SEN, and regarding the communication of the DISK.

The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2303 (see 342nd Report, June 2006) concerning, inter alia, the amendments to the Trade Unions Act No. 2821 and the Collective Agreements, Strikes and Lockouts Act No. 2822.

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 Unions Act No. 2821, and the Collective Agreements, Strikes and Lockout Act No. 2822. The Committee noted that 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 noted that two draft bills have been prepared. Moreover, the Committee notes the adoption of a new Associations Act No. 5253, enacted in 2004, and replacing Act. No. 2908, and a new Penal Code. The Committee will examine these two texts once it has at its disposal the translation. The Committee requests once again the Government to transmit the second text amending Act No. 4688.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that its previous comments related to section 18 of Act No. 4688; while this provision generally provides for a prohibition of acts of anti-union discrimination, this guarantee is not accompanied by sufficiently effective and dissuasive sanctions. The Committee notes that, in its 2005 observations, the ICFTU points to a number of instances in which public employees, as trade union members or officers, suffered various acts of anti-union discrimination. The Committee also notes that the Committee on Freedom of Association has examined, in Case No. 2200, allegations of anti-union discrimination in the public service (see 334th Report, paragraphs 722-762, and 338th Report, paragraphs 319-327). In its report, the Government indicates that cases of violations of section 18 of Act No. 4688 by any administrative officer will be punished with disciplinary measures in accordance with the legislation applicable to public personnel. Moreover, the Government indicates that the new Turkish Penal Code No. 5237, which came into effect in June 2005, introduced new provisions for protection against acts of anti-union discrimination. Section 118 prohibits acts of anti-union discrimination and provides dissuasive sanctions: it stipulates that any person who uses force or threats with the aim of compelling a person to join a trade union or not to join, or to participate in union activities or not to participate in them, to resign from a trade union or from his/her position in the union management, shall be punished with imprisonment from six months to two years. Furthermore, section 118 states that a judgement of imprisonment for one year to three years shall be given in cases where a trade union’s activities are obstructed by using force, threats or other unlawful acts. Section 135 stipulates that any person found guilty of recording personal data of a person unlawfully, including his/her trade union attachments, shall be punished with imprisonment from six months to three years. The Committee takes note of this information with interest.

With regards to the comment of the TURKIYE-KAMU-SEN concerning general and specific violations of section 18 of Act No. 4688 (as amended by Act No. 5198), the Government observed in its comments to the TURKIYE-KAMU-SEN’s communication that this provision provides sufficient guarantees to union representatives and union officials. It contains a legal obligation, the breach of which can be brought to the court. Any union representatives or official transferred to other workplaces without a valid reason has the right to take legal action. Without more information, the Government is unable to comment on the merits of the 62 cases mentioned in the TURKIYE-KAMU-SEN’s communication, but insists that it attaches great importance to ensuring that administrative practice is fully in line with the law. The Committee requests the Government to ensure that the provisions of the Convention are applied in law and in practice and requests the Government to keep it informed in future reports of any further measures taken or envisaged to ensure adequate protection against anti-union discrimination.

Article 4. Free and voluntary collective bargaining. 1. With respect to the dual criteria to determine the representative status of a union for the purpose of collective bargaining set out in section 12 of Act No. 2822 (under which, in order to be allowed to negotiate a collective agreement, a trade union must represent 10 per cent of the workers in a branch and more than half of the employees in a workplace), the Committee expressed the firm hope in its previous comments (see the 2002 observation), that the Government would take the necessary measures to ensure the conformity of the draft Bill amending Act No. 2822 with the requirements of the Convention. The Committee takes note of the Government’s indication that the draft Bill of Act No. 2822 contains two alternative proposals for determining the representative status of unions. On the one hand, the amendment to section 12 stipulates that a majority union in a given workplace shall be recognized as the competent union for collective bargaining if the union concerned is affiliated to one of the three most representative trade union confederations. On the other hand, the alternative amendment proposal envisages the gradual elimination of the 10 per cent representation requirement in the branch of activity concerned without any condition for affiliation. The Committee also takes note of the DISK communication, dated 9 June 2006, in which it states that it has received from the Government the draft Bills amending Acts Nos. 2821 and 2822, as well as the alternative text of 10 per cent threshold. The DISK has examined these drafts and is of the opinion that the draft Bill amending Act No. 2822 and the alternative text of 10 per cent threshold do not provide a solution to any problems in collective labour relations and do not contribute to free use of union rights. The Committee recalls that the dual numerical requirement in section 12 of Act No. 2822 are not in accordance with the principle of voluntary collective bargaining. Thus, under the current legislation, unions representing the majority of workers in a workplace but not having membership strength of more than 50 per cent of the workers cannot enter into collective bargaining with the employer. The Committee considers that, at the enterprise level, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions, at least on behalf of their own members. Similarly, the Committee notes that a trade union meeting the 50 per cent criterion cannot bargain if it does not represent at least 10 per cent of employees engaged in a given branch of activity. The Committee expresses the hope that the Government will take the necessary measures to eliminate the dual requirement in the national legislation in order to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4, and requests it to transmit all information relevant to the progress made in amending section 12 of Act No. 2822.

In addition, in its previous comments, the Committee noted that, according to comments submitted directly by the DISK, the Ministry of Labour and Social Security did not mention this organization in its statistics published on 17 July 2003, although it had reached the 10 per cent requirement in its branch of activity, and thus prevented the organization from participating in the collective bargaining process. Similar representations have been made by the DISK concerning some of its affiliates. The Committee noted that, in its reply, the Government referred only to the statistics published in respect of one of the DISK’s affiliates (Sosyal-IŞ), and which were eventually rectified by the Ministry of Labour and Social Security as a result of an objection raised by the union concerned before the courts. The Government indicates in its report that published statistics are based on union memberships reported by unions and that the unions concerned have the right to object to these statistics in the labour court of Ankara. The Government further indicates that, as confederations are not bargaining agents, there is no requirement for the DISK to represent 10 per cent of workers in a branch of activity. The Committee takes note of this information.

In a communication by the DISK, transmitted by the ICFTU on 30 August 2005, the DISK mentions that, as one of its affiliated trade unions, (DEV-SAGLIK IŞ – health workers’ union) did not reach the 10 per cent sector threshold, it had to sign a protocol and not a collective agreement. The Ministry has asked for the annulment of this protocol on the basis that the DEV-SAGLIK IŞ had not exceeded the 10 per cent threshold. In response, the Government refers to the statistics published on the DEV-SAGLIK IŞ. Recalling that, under Article 4 governments should take measures appropriate to national conditions to encourage and promote the full development and utilization of voluntary negotiation by means of collective bargaining, the Committee requests the Government to ensure that, in the absence of a representative union, unions are able to bargain on behalf of their own members and to indicate the measures taken or envisaged to amend the relevant legislation in this respect.

2. Collective bargaining in the public service. In its previous comments (see 2002 observation), the Committee had requested the Government to provide details on the role and functions of the Supreme Administrative Committee, the Institution Administrative Committees and the Public Employers Board during collective bargaining. The Committee noted that the Government had not addressed the issue of the scope of the negotiations but had given some explanations about the role and function of the Supreme Administrative Committee and the Institution Administrative Committees. In its latest report, the Government gives indications about the Public Employers Board. The Committee notes that the parties to the negotiation are, on the one hand, the Public Employers Board and, on the other, unions for each branch of service and their confederations. The Public Employers Board is the negotiating agent under section 3(h) of Act No. 4688 as it defines the term “collective negotiation”, for the purposes of the Act, as the negotiation between the Public Employers Board and the competent public servants’ trade unions and their higher organizations. The Public Employers Board and the unions and confederations concerned meet on 15 August of each year (section 32) and collective negotiation starts when the Public Employers Board presents the relevant information and documents on the matters within the scope of collective negotiation, taking into account also the proposals made by the Supreme Administrative Board (section 33). Under the provisions of section 33, parties to the negotiation present their proposals which shall be the basis of the negotiation and shall form its agenda. Principles governing the negotiation shall be determined by the parties. In accordance with the provisions of article 53 of the Constitution and the provisions of section 34 of the said Act, when agreement has been reached by the abovementioned parties, a text of the agreement is submitted to the Council of Ministers so that the appropriate administrative or legal arrangements can be made. Scope of the negotiations includes the coefficient and indicators, salary and wages, any kind of pay increases and compensations, overtime pay, travel allowances, bonuses, house allowance, birth, death and family allowances, medical help and funeral expenses, food and clothing allowances to be applied to the public servants, as well as other allowances of this nature that increase effectiveness and productivity (section 28). In its latest comments, the Committee noted that the Public Employers Board is composed of representatives of the Prime Minister, the Ministry of Finances and of the Treasury, as well as of the public employers’ organization. The Committee recalls that legislative provisions which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 263). The Committee once again requests the Government to explain the manner in which the direct employer participates in the negotiations alongside the financial authorities.

Further, the Committee recalls that measures taken unilaterally by the authorities to restrict the scope of the negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining, are a particularly appropriate method to resolve these difficulties (see General Survey, op. cit., paragraph 250). While noting the Government’s indications that discussions at the level of the Supreme Administrative Committee and the Institutions Administrative Committees relate to conditions of work and the rights and duties of public employees, the Committee underlined that section 28 quite clearly limits the scope of the negotiations to financial issues. It therefore requests the Government to take the necessary measures to amend section 28 in a manner compatible with Article 4 of the Convention.

3. Comments of the TURKIYE-KAMU-SEN. With respect to the formalities required for the approval of the collective agreement, the Committee takes note of the observations of the Government dated 19 July 2006, regarding the communication of the TURKIYE-KAMU-SEN, dated 9 February 2006. In its communication, the TURKIYE-KAMU-SEN states that there are obstacles to union activities as section 34 of Act No. 4688 stipulates that, if an agreement is reached during the negotiation process, the agreed text shall be submitted to the Council of Ministers for the appropriate administrative, executive and legal arrangements to be taken within three months and the draft bills shall be submitted to the Turkish Grand National Assembly for enactment. According to the TURKIYE-KAMU-SEN, this amounts to a restriction of the efficient accession of both unions and public employees in the collective bargaining process and they ask the Government to provide for more objective and efficient regulations from the Ministry of Labour and Social Security in order to clarify the contributions of the unions and the public employees in the collective bargaining. The Government does not share this view and insists that there is no such restriction emanating from the said provision, either on the legal obligations or on the involvement of the unions in the negotiating process. The Committee recalls that, while the discretionary power of the authorities to approve collective agreements is by its very spirit contrary to the principle of voluntary bargaining, legislation stipulating that collective agreements must be submitted for approval to the administrative authority, the labour authorities or the labour tribunal before coming into force is compatible with the Convention provided that the national legislation merely stipulates that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down in the general labour legislation (see General Survey, op. cit. paragraphs 251-252). The Committee requests the Government to inform it of the manner in which section 34 is applied in practice and to ensure that it is not applied in any way that gives the authorities discretionary power to approve collective agreements.

Article 6. Public servants engaged in the administration of the State. In its previous comments, the Committee noted that sections 3(a) and 15 of Act No. 4688 deny several categories of public servants the right to organize, and consequently the right to collective bargaining. The definition of a public employee in section 3(a) refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees (such as lawyers, civilian civil servants at the Ministry of National Defence and the Turkish armed forces, employees at penal institutions, etc.) who are prohibited from joining trade unions. The Committee requested the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than those engaged in the administration of the State, are fully ensured the right to collective bargaining in accordance with the Convention. In its previous comments, the Committee noted with interest the Government’s indication that the draft Bill amending Act No. 4688 would remove the reference to the “trial period” and that the definition of “public employees” would be revised so as to include, in particular, special security personnel. Nevertheless, from the information provided by the Government, it seemed that public employees holding positions of trust would remain outside the scope of Act No. 4688. The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). The Committee expresses once again the firm hope that the revision of sections 3(a) and 15 of Act No. 4688 will take into account the comments made above and requests the Government to submit with its next report the text of the relevant amendments.

Comments of the ICFTU. The Committee notes the ICFTU’s comments concerning several issues already raised in previous observations. The observations underline, however, violations of the Convention, such as bargaining obstructions in the bakery sector leaving 2,500 bakers without protection; anti-union discrimination (for example, in 2005, 520 workers in the public sector have been transferred for no other reason than their trade union membership and 164 members of the DISK-affiliated United Metal Workers’ Union were dismissed and 275 members were forced to resign); anti-union harassment; police violence against trade unionists during a peaceful demonstration on 26 November 2005 (17 injured, ten arrested); police violence against workers, their wives and children and arrests of trade unionists during a protest action on 20 July 2005; pressure on local authorities not to implement 130 or so collective agreements and order to workers to pay back their wages obtained as a result of a collective agreement.  The Committee requests the Government to transmit its observations on these latest comments of the ICFTU.

The Committee expresses once again the hope that, in the forthcoming legislative reforms concerning collective bargaining, the comments made above will be fully 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.