Observación (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (2002)

The Committee takes note of the information provided in the Government’s report as well as the comments made by the Confederation of Public Servants Trade Unions (KESK), by the Confederation of Turkish Trade Unions (TURK-IS), by the Energy-Building and Road Construction-Union (ENERJI-YAPI YOL SEN), by the Trade Union of Civil Officers Employed in Military Offices (ASIM-SEN), and the Turkish Confederation of Employers’ Associations (TISK).

In its previous comments, the Committee had requested the Government to provide information on the draft bill on public servants’ unions which was under preparation. In this regard, the Committee had recalled the need to adopt legislation to ensure the full rights of the Convention to public servants, including the right to strike for public servants who are not exercising authority in the name of the State.

The Committee notes the information given by the Government in its report that the bill which was soon to be adopted would govern the activities of the organizations of public servants already in existence. The Committee also notes the comments from the Government in respect of the right to strike for public servants to the effect that public servants enjoy a special employment status.

The Committee notes that the bill has been adopted and came into force on 12 August 2001 as Act No. 4688 on public employees’ trade unions. While noting that the adoption of the Act is part of a substantial reform process initiated by the Government, the Committee would like to draw the Government’s attention to certain discrepancies between the Act and the provisions of the Convention, as well as on a number of other points which the Committee had raised in its previous comments.

Article 2 of the Convention

Right of workers and employers without distinction whatsoever to establish and join organizations of their own choosing. The Committee notes from sections 3(a) and 15 of the Act on public employees’ trade unions that several categories of public servants are denied the right to organize either because they are not covered by the Act or because they are specifically excluded from this right by the Act. The definition of "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 judges, lawyers, high-ranking officials, 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 would like to underline that Article 2 of the Convention provides that workers without distinction whatsoever should have the right to form organizations of their own choosing. Consequently, all public servants should have the right to organize irrespective of the nature and the level of their responsibilities and of their professional status. As concerns senior public officials, the Committee considers that they should at least be entitled to establish their own organizations. The only admissible exception under the Convention concerns the armed forces and the police, and even in these areas it is understood that civilian workers at these institutions should be entitled to exercise this right fully as all other workers. The Committee therefore requests the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than members of the armed forces and the police, are fully ensured the right to organize in accordance with Article 2 of the Convention.

The Committee notes from the information submitted by the various workers’ organizations that public servants have already established a number of organizations that will become illegal by reason of the prohibitions and restrictions set forth in the law and noted above. The Committee notes from the transitional provisions that existing organizations have eight months to meet the conditions set out by the Act. It trusts that the Government will take the necessary measures to ensure that the application of the Act will not affect the activities of these organizations in a manner that would be in direct contravention with the Convention.

Article 3 of the Convention

1. Right of workers’ organizations to elect their officers freely. With reference to section 37 of the Trade Unions Act No. 2821, the Committee had noted in its previous comments the Government’s indications concerning the effect of candidacy of union officers to local and general elections on their union activities and the scope of the penalty of imprisonment in case of infringement of the law. The Committee had requested that the Government indicate measures to ensure that the conditions of eligibility for trade union officers are determined by the organizations themselves. The Committee notes with regret that the Government has not provided any information in its latest report in this respect. The Committee would like to recall once again that the effect of the candidacy of union officers to local and general elections is a matter to be left to the organizations’ internal rules and not for the Government to regulate. The Committee requests the Government to take the necessary measures to amend section 37 so as to enable workers’ organizations to determine freely whether union officers may remain in their posts during their candidacy or election to local or general elections.

As concerns public servants, the Committee notes that section 10 of the Act on public employees’ trade unions also addresses the impact of the candidacy of union officers to general and local elections on their union activities by providing that the positions in the union or confederation bodies of those who are candidates in the general or local elections remain in suspense during their candidacy period. In this respect, the Committee would like to recall the comments made above on the Trade Union Act, which also apply to civil servants union officers. The Committee therefore requests the Government to amend section 10 of the Act to ensure the right of civil servants’ organizations to elect their representatives in full freedom.

2. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes free from government interference. In its previous comments, the Committee had made a number of points concerning the prohibition and the restriction of the right to strike provided for under section 54 of Act No. 2822 on collective labour agreements, strikes and lockouts. In particular, the Committee had drawn the Government’s attention to certain principles concerning the general prohibition on sympathy strikes, namely, that workers should be able to take such action provided that the initial strike they are supporting is itself lawful. The Committee had also pointed out that sanctions for strike action, in particular penalties of imprisonment, should only be possible where the prohibitions for strike actions are in conformity with the principles of freedom of association. With reference to sections 29, 30 and 32 of Act No. 2822, the Committee had also recalled that restrictions on strike action, in particular through the imposition of compulsory arbitration, could only be justified in respect of essential services in the strict sense of the terms, public servants exercising authority in the name of the State and in cases of acute national crisis. The Committee notes the information provided by the Government in its latest report that no legislative reform in respect of the prohibition of protest and sympathy strikes can occur until the procedure to amend the relevant provisions of the Constitution is carried out and that a draft bill will amend section 29 of Act No. 2822 on collective agreements, strikes and lockouts by limiting the activities and services in which strike action is prohibited. The Committee expresses the hope that the Government will in the near future take the necessary measures to amend the abovementioned provisions so as to ensure the right of workers’ organizations to organize their activities without interference by the public authorities.

The Committee further notes that section 35 of the Act on public employees’ trade unions provides that in case of failure to reach an agreement one of the parties may call for a reconciliation committee, but makes no mention of the circumstances in which strike action may be exercised. It also notes the comments made by the Government on the special status of public servants in respect of the right to strike. In this respect, the Committee recalls that 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraph 158). The Committee also recalls that restrictions to the right to strike by the imposition of compulsory arbitration can only be justified in respect of this limited category of public servants and those working in essential services in the strict sense of the term. Further, where the right to strike may be prohibited or limited, 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. The Committee therefore requests that the Government take the necessary measures to ensure that those public servants who are not exercising authority in the name of the State and who cannot be deemed to be carrying out essential services in the strict sense of the term have recourse to industrial action without penalty.

The Committee notes with interest the indications given by the Government in its latest report to the effect that provisional section 1 of Act No. 3218 imposing compulsory arbitration in export processing zones for a ten-year period will be repealed. The Committee requests that the Government keep it informed of any developments in this respect so as to ensure that workers in export processing zones have the possibility of taking industrial action in defence of their interests.

The Committee notes that section 10 of the Act on public employees’ trade unions governs in detail the timing of the general assembly meetings and the majority needed to summon an extraordinary general assembly or to hold the other meetings of the general assembly. Furthermore, this section provides that, upon application to a labour court by an official of the Ministry of Labour and Social Security, a union executive committee can be dissolved if the union does not comply with these requirements. The Committee underlines that Article 3 of the Convention provides that workers’ and employers’ organizations shall have the right to organize their administration and activities without interference by public authorities. In particular, the Committee points out 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 members or normal judicial proceedings, seriously interferes in the exercise of the trade union office to which the officers have been freely elected by the members of their trade unions. Provisions which permit the suspension and removal of trade union officers or the appointment of temporary administrators by the administrative authorities are incompatible with the Convention (see 1994 General Survey, paragraph 122). The Committee therefore requests that the Government take the necessary measures to repeal section 10 of the Act so as to ensure that workers’ organizations may organize their administration and activities without any undue interference by the public authorities.

The Committee requests that the Government indicate in its next report the specific measures taken or envisaged to bring its legislation on the abovementioned points into full conformity with the Convention. It draws the Government’s attention to the availability of ILO technical assistance in this respect.

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