Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 376, Octubre 2015

Effect given to the recommendations of the Committee and the Governing Body

1. 142. The Committee last examined this case at its March 2014 meeting [see 371st Report, paras 926–936] when it requested the Government to renew its efforts, in consultation with the social partners, so as to bring Act No. 4688 into conformity with Convention No. 87 to ensure the right of judges and public prosecutors to establish trade unions to defend their occupational interests. It once again urged the Government to take the necessary measures to immediately register YARGI-SEN as a trade union organization of judges and prosecutors so as to ensure that it can function, exercise its activities and enjoy the rights afforded by the Convention to further and defend the interests of these categories of public servants. The Committee also once again urged the Government to institute an independent inquiry without delay into the alleged acts of anti-union discrimination through the imposed transfer of union leaders Dr Rusen Gültekin, Omer Faruk Eminagaoglu and Ahmet Tasurt, and should these acts be found to be of an anti-union nature to take appropriate remedial steps. The Committee requested the Government to keep it informed of the developments with regard to the measures undertaken in implementation of its recommendations.
2. 143. In its communication dated 5 May 2014, the Government reiterates that according to sections 4 and 15 of Act No. 4688, judges and prosecutors cannot establish trade unions and the Labour Court of Ankara ruled that YARGI-SEN be dissolved in application of the said provisions. The Government indicates that the Supreme Court has upheld this ruling, and the Ministry of Labour and Social Security is now bound to implement the judgments in accordance with article 138 of the Constitution of the Republic of Turkey. The Government also indicates that the scope of section 15 of Act No. 4688 that excludes certain groups of public servants from the right to establish trade unions or be members thereof has been diminished as a result of legislative reform and judgments of the Constitutional Court. Law No. 6289, adopted on 4 April 2012, repealed parts of subparagraphs (c) and (j) of section 15 of Act No. 4688 that excluded “chief managers and their assistants of the workplaces employing 100 and more public servants” and “private security staff of public institutions and organizations”. In addition to those legislative amendments, the Constitutional Court issued a judgment published in the Official Gazette dated 12 July 2013 that allowed civil servants in the Ministry of National Defence and the Turkish armed forces to join trade unions. With regard to the allegation of anti-union acts, the Government refers to the second paragraph of section 18 of Act No. 4688, where the law states that the public employer cannot relocate workplace trade union representatives, as well as at the district and provincial level representatives and union managers, “unless the fact is clearly and precisely indicated”. The Government states that this legal protection is reflected in the circulars of the Prime Ministry in order to protect the right to organize, to avoid restricting the freedom of organization and to provide sufficient protection against discrimination. The Government concludes that the entity established by judges, prosecutors or those considered to be members of these professions under Act No. 4688 cannot be incorporated, and that those professionals cannot establish trade unions and cannot be members of trade unions.
3. 144. The Committee takes note of the information provided by the Government. The Committee deeply regrets that despite its previous recommendations, the Government reiterates that in accordance with the legislation in force, judges and prosecutors are not entitled to establish trade unions or be members thereof and maintains that the Ministry of Labour and Social Security is bound to comply with the judgment ordering the dissolution of YARGI-SEN. The Committee notes with deep concern that subparagraph (b) of section 15 of Act No. 4688 remains in force and continues to deny the judges’ and prosecutors’ right to organize. The Committee is hence bound to note that the reforms undertaken have fallen short of bringing Act No. 4688 into harmony with principles of freedom of association with regard to judges and prosecutors. The Committee firmly expects that the Government renew its efforts, in consultation with the social partners so as to bring Act No. 4688 into conformity with Convention No. 87 with regard to the organizational rights of judges and public prosecutors and invites the Government to avail itself of the technical assistance of the Office in this respect, if it so desires. The Committee also expects that the Government take the necessary measures to register YARGI-SEN as a trade union organization of judges and prosecutors, and requests the Government and the complainant organization to keep it informed of the developments in this regard.
4. 145. The Committee notes with concern that, despite its repeated recommendations to this effect, no information has been provided by the Government as to the conduct of an independent inquiry into alleged acts of anti-union discrimination through imposed transfer of YARGI-SEN leaders Dr Rusen Gültekin, Omer Faruk Eminagaoglu and Ahmet Tasurt. The Government merely refers to section 18 of Act No. 4688 that prohibits the relocation of trade union representatives and managers “unless the fact is clearly and precisely indicated”. The Committee recalls that all protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 781]. Protection against acts of anti-union discrimination is particularly desirable in the case of trade union officials in order to allow them to perform their trade union duties in full independence and to ensure that the workers’ organizations effectively have the right to elect their representatives in full freedom. The importance of this protection requires that allegations of acts of anti-union discrimination against trade union officials and leaders be promptly and effectively investigated so that, if they are found to be grounded, effective remedial steps can be taken. In view of the foregoing, the Committee firmly expects the Government to institute an independent inquiry into the alleged anti-union acts without further delay, to indicate the current status of the union leaders and to keep it informed of the outcome of the inquiry and the follow-up measures taken. The Committee also invites the complainant organization to provide information on these matters.