Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 374, Marzo 2015

1. 855. The complaint is contained in a communication from Kristal-Is (Trade Union of Glass, Cement and Soil Workers of Turkey) dated 15 July 2014. The IndustriALL Global Union supported the complaint in a communication dated 21 July 2014.
2. 856. The Government sent its observations in a communication dated 28 October 2014.
3. 857. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 858. In its communication dated 15 July 2014, the complainant organization alleges that, by Decree No. 2014/6524 issued on 27 June 2014, the Government of Turkey suspended, for a period of 60 days, a major strike that had started on 20 June 2014 and involved the entire glass industry, on the grounds of public health and national security.
2. 859. Kristal-Is indicates that the Decree was issued pursuant to section 63 of Act No. 6356 on trade unions and collective labour agreements, which reads as follows:
   • (1) A lawful strike or lock-out that has been called or commenced may be suspended by the Council of Ministers for 60 days with a decree if it is prejudicial to public health or national security. The suspension shall come into force on the date of publication of the decree.
   • (2) After a suspension decree has entered into force, a mediator designated according to the seventh paragraph of Article 50 shall make every effort for the settlement of the dispute during the suspension period. During the suspension period, the parties may also agree to refer the dispute to a private arbitrator.
   • (3) If an agreement is not reached before the expiry date of the suspension period, the High Board of Arbitration settles the dispute upon the application of either parties within six working days. Otherwise, the competence of the workers’ trade union shall be void.
3. 860. The complainant organization asserts that the Turkish Government misuses the mechanism of strike suspension as a tool for eliminating the right to strike. Kristal-Is points out that the suspension mechanism provided for in section 63 of the Act which should be applied solely to essential services, the interruption of which would endanger the life, safety and health of the whole or part of the population as made clear in the decisions of the ILO supervisory bodies, is extended by the Government to apply to any ordinary strike in any service or industry. According to Kristal-Is, claiming that any strike in the glass industry threatens national security is unreasonable, unlawful and unfair.
4. 861. Kristal-Is further states that the use of section 63 of Act No. 6356 is a strategy that the Government regularly resorts to in order to suspend strikes in industries that have no direct connection with national security or public health and amounts, in the view of the complainant, to a serious and systematic violation of the right to strike in Turkey. In this regard, Kristal-IS indicates that, from May 2000 to June 2014, four major strikes were suspended in the glass industry, four others in the rubber sector and one in the mining industry, all on the basis of national security or public health. The complainant organization adds that, in all decrees issued on the basis of section 63, the Government has never indicated any reason as to why a strike in the glass industry might be considered harmful to public health and national security. In the opinion of Kristal-Is, there is no reasonable connection between the glass industry and Turkey’s national security.
5. 862. Moreover, the complainant states that the suspension of strike under the current Turkish labour legislation usually means an indefinite ban in practice, as the law imposes a compulsory arbitration mechanism at the end of the suspension, unless the parties have either come to an agreement or voluntarily sought arbitration. This provision, according to Kritstal-Is, renders the exercise of the right to strike extremely difficult in Turkey.
6. 863. In addition, the complainant considers that the Government has also violated the rule of law. According to Kristal-Is, the Council of State of Turkey, a high court, has, on several occasions in the past, issued decisions annulling Government decrees suspending strikes and which the latter did not comply with. The complainant refers as an example to the Government’s Decree No. 2003/6479 suspending a strike in the glass sector, a decree that was subsequently annulled by a decision of the Tenth Department of the Council of the State following a complaint from Kristal-Is. However, the Government, despite the decision of the Council of the State proceeded to issuing a new decree (No. 2004/6782) on 11 February 2004 to suspend the same strike.
7. 864. The complainant states that, despite the Committee’s recommendations in Case No. 2303, dealing with a suspension of a strike pursuant to section 33 of Act No. 2822 (the predecessor of Act No. 6356) and the numerous promises made by the Government, there has been no meaningful improvement in amending the legislation: Act No. 6356 adopted in 2012 provides, in its section 63, for the same strike suspension mechanism.
8. 865. In conclusion, the complainant organization reiterates that section 63 of Act No. 6356, which allows the Government to suspend strikes by way of decrees, is not in conformity with Conventions Nos 87 and 98 and the decisions of the ILO supervisory bodies, and considers that the Act should be brought in line with the previous recommendations of this Committee and those of the Committee of Experts on the Application of Conventions and Recommendations.

B. The Government’s reply

1. 866. In a communication dated 28 October 2014, the Government states that, on 15 January 2014, Kristal-Is and the Turkish Glass, Cement and Soil Industries Employers’ Union started a round of collective bargaining in order to conclude an agreement, which would cover several enterprises. According to the Government, after the parties had failed to reach an agreement, a mediator was appointed on 21 March 2014. Following the failure of the mediation, on 28 May 2014, Kristal-Is decided to call for a strike. By the Council of Ministers’ Decision No. 2014/6524 of 25 June 2014, the strike, which had commenced on 20 June 2014 and involved 5,508 strikers, was postponed for 60 days on the grounds that it was deemed prejudicial to public health and national security in accordance with section 63 of Act No. 6356.
2. 867. The Government points out that, pursuant to section 63 of the Act, the Undersecretary of the Minister of Labour was then appointed as a mediator in the mediation process that ensued. As the mediation did not result in an agreement between the parties, the dispute was referred to the High Arbitration Board, a body established under article 54 of the Constitution and tasked with adjudicating collective labour disputes. According to the Government, the Board has a tripartite structure composed of state, employers’ and workers’ representatives and serves as an important social dialogue mechanism; due to its impartial and independent nature, its decisions are final and have the force of collective labour agreements binding on all the parties. It is a mandatory appeals body to which application should be made, including in situations where the Council of Ministers suspends a strike on the ground that it is prejudicial to national security or public health. The Government states that, in the matter under examination, the Board ruled for a collective labour agreement to be in effect from 1 January 2014 to 31 December 2016.
3. 868. With regard to the suspension of strikes that occurred from 2000 to 2005, the Government indicates that:
   • – concerning the decree to postpone the strike at the Turkish Bottle and Glass Factories Company (Şişecam), which was annulled by the Tenth Department of the Council of State and subsequently followed by a another suspension decree, the strike and lock-out decisions were lifted upon the parties reaching an agreement on 14 March 2004;
   • – with regard to the strike postponement in the rubber industry, the strike and lock-out decisions were also retracted after the parties had reached an agreement on 12 May 2004; and
   • – as for the strike at Erdemir Mining Industry Trade Inc., it was suspended on 21 March 2004 because the Government was of the opinion that the strike was prejudicial to national security.

C. The Committee’s conclusions

1. 869. The Committee notes that the complainant organization, Kristal-Is, alleges that section 63 of Act No. 6356, which allows the Government to suspend a strike by way of decrees and to impose a compulsory arbitration, in general, and the Government’s Decree No. 2014/6524 of 27 June 2014, which suspended a strike in the glass industry for a period of 60 days on the grounds of public health and national security, in particular, are not in conformity with Conventions Nos 87 and 98.
2. 870. The Committee notes that it had dealt with similar allegations in Case No. 2303 [see Reports Nos 335 (November 2004), 338 (November 2005) and 342 (June 2006)]. The Committee recalls that, in that case, the allegations concerned a decree by which the Government suspended a strike in the glass industry on the grounds of national security, as was provided in section 33(1) of Act No. 2822 (Collective Labour Agreement, Strike and Lock-out Act, now repealed). In that case, the complainant further alleged that a suspension of a strike meant an indefinite ban in practice, as the law empowered the Labour Ministry to impose a compulsory arbitration in such cases. The Committee notes that the wording of section 63(1) of Act No. 6356 reproduces the wording of section 33(1) of Act No. 2822 and further provides in its subsection (3) for an arbitration, upon a request of either party to the dispute, if an agreement is not reached within 60 days. In this respect, the Committee also notes that according to article 54 of the Turkish Constitution, in cases where a strike is prohibited or postponed, the dispute shall be settled by the Board at the end of the period of postponement, which would appear to ensure that all cases of strike postponement would be terminated by compulsory arbitration.
3. 871. As it already did in Case No. 2303, with regard to section 33 of Act No. 2822, the Committee considers that section 63 of Act No. 6356, which allows the Government to suspend a strike and impose compulsory arbitration on the grounds of national security or public health, is not in itself contrary to freedom of association principles as long as it is implemented in good faith and in accordance with the ordinary meaning of the terms “national security” and “public health”. The Committee observes, however, that the Government indicates no reason why a strike in the glass industry might be considered harmful to national security and public health. Moreover, the Committee notes that section 63 of Act No. 6356 no longer provides for the right to appeal the decision of the Council of Ministers to an independent body, whereas section 33(2) of Act No. 2822 had previously ensured a possibility to appeal to the Council of State (although the Council of State recommendations were apparently not always heeded by the Government). The Committee further considers that the repeated application of this provision, so as to prevent strikes in sectors such as the glass industry, which do not appear to have any direct connection to national security or public health, might amount to a systematic violation of the right to strike. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, for instance in the case of disputes in the public service involving public servants exercising authority in the name of the State, or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 564]. Furthermore, compulsory arbitration is acceptable in cases of acute national crisis. The Committee notes, with regret, that a strike has once again been suspended and compulsory arbitration imposed in the glass industry, and requests the Government to ensure in the future that such restrictions may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or an acute national crisis.
4. 872. Noting that the legislation does not provide for the possibility of appeal to an independent body of a Council of Ministers’ decision to suspend a strike, the Committee recalls that responsibility for suspending a strike should not lie with the Government, but with an independent body which has the confidence of all parties concerned. The Committee requests the Government, as it has previously done with regard to section 33 of Act No. 2822, to take the necessary measures for the amendment of section 63 of Act No. 6356 so as to ensure that the final decision whether to suspend a strike rests with an independent and impartial body. It requests the Government to keep it informed of the progress made in this respect.