Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, by the Confederation of Public Employees’ Trade Unions (KESK) in a communication dated 28 August 2010 and by Education International (EI) in a communication dated 30 August 2010 and the Independent Confederation of Public Servant’s Trade Unions (BASK) in a communication dated 11 October 2010. The Committee requests the Government to provide its observations thereon in its next report.

The Committee notes the discussion that took place in the 2010 Conference Committee on the Application of Standards. It further notes that an ILO high‑level bipartite mission visited the country in March 2010 pursuant to a request by the Conference Committee in 2009.

Civil liberties

The Committee notes the Government’s reply to the comments previously made by the ITUC on the excessive force used by the police during public demonstrations. The Government indicates, in particular, that measures were put into effect in 2009 to prevent the use of excessive force by the police. Police officers responsible for the security of public marches and demonstrations began to receive training on the proportional use of force. About 17,000 police officers will be trained annually. The Government further indicates that, after the promulgation of May Day as Labour and Solidarity Day in 2008 and official holiday in 2009, May Day was celebrated in 2010 in Taksim square in Istanbul for the first time since its closure for meetings and demonstrations three decades ago. According to the Government, the demonstration was peaceful due to the constructive collaboration between trade unions and the security forces.

With regard to the 2007 ITUC allegation that trade unions must allow the police to attend their meetings and record the proceedings, the Government points out that, according to the Associations Act, the security forces are not authorized to enter trade union premises unless a court order is obtained on the grounds of the need to maintain public order and prevent the occurrence of criminal incidences. It further points out that a distinction between public meetings and meetings at trade union premises should be made and that any attendance at trade union public meetings by the police is entirely related to the need to maintain public order.

Regarding the setting on fire of the premises of Egitim-Sen’s branch office, the Government indicates that the security forces and the fire brigades intervened on time, three suspects were arrested and one of them was sentenced to three years of imprisonment. No trade union member was harmed.

While taking due note of the information provided by the Government on the steps taken to avoid police violence and undue interference, the Committee observes with concern the allegations of important restrictions placed on freedom of speech and assembly of trade unionists, contained in the above-noted communications from the ITUC, KESK and EI. The Committee, like the Conference Committee on the Application of Standards, urges the Government to continue to take all the necessary measures to ensure a climate free from violence, pressure or threats of any kind so that workers and employers could fully and freely exercise their rights under the Convention. The Committee also urges the Government to review, in full consultation with the social partners, any legislation that might have been applied in practice in a manner contrary to this fundamental principle and to consider any necessary amendments or abrogation. It requests the Government to indicate in its next report all measures taken in this respect. The Committee also requests the Government to carry out an investigation on the allegations concerning all the cases of use of violence during police or other security force interventions and to provide information on the outcome with its next report.

Legislative issues

The Committee recalls that for a number of years it has been commenting on several provisions of Act No. 2821 on trade unions, Act No. 2822 on collective labour agreements, strikes and lockouts and Act No. 4688 on public employees’ trade unions.

The Committee notes the Government’s indication that Law No. 5982 amending the Constitution of the Republic of Turkey, enacted by the Grand National Assembly on 7 May 2010, entered into force after being approved by the electorate in the referendum held on 12 September 2010. The Committee notes with interest that, pursuant to this Law, the following provisions of the Constitution were repealed:

–      article 51(4) prohibiting membership in more than one trade union;

–      article 54(3) providing for trade union liability for any material damage caused during a strike; and

–      article 54(7) prohibiting “politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, labour go-slows, and other forms of obstruction”.

Regarding Act No. 4688 on public servants’ trade unions, the Committee further notes the Government’s explanation provided to the Conference Committee that the constitutional amendment would be followed by the relevant legislative amendments.

With regard to Acts Nos 2821 and 2822, the Committee notes the Government’s indication that a draft Law on trade unions, amending both Acts, has been prepared by a “scientific committee” appointed by the Ministry in 2009. It further notes that this draft was communicated to the ILO High-level bipartite mission, as well as to the social partners in March 2010, in the framework of the Tripartite Consultation Board. The Committee notes that the provisions of the draft Law appear to address a number of the Committee’s previous concerns. The Committee notes, in general, that the draft provisions concerning internal functioning of unions and their activities appear to be less detailed than corresponding provisions of Acts Nos 2821 and 2822, which previously gave rise to repeated interference by the authorities. Among other improvements, the Committee notes, in particular, that:

–      the procedure for establishment of a trade union appears to be simplified (section 7);

–      the notary requirement for becoming a trade union member is lifted (section 16);

–      the establishment of workplace and occupation unions is allowed (section 3);

–      a check-off facility is made available to all trade unions and the amount of trade union dues is to be determined by the organizations themselves (section 17);

–      the citizenship requirement, as well as the requirement of being actively employed in the relevant branch of activity previously imposed on trade union founders, is abolished (section 6);

–      the possibility for the Governor to appoint an observer at the general congress of a trade union is removed;

–      the draft no longer provides for sanctions of imprisonment for violation of the legislation (section 35); and

–      responsibility for suspending a strike lies with the court and not with the Council of Ministers (section 42).

The Committee notes, however, that the draft does not deal with all issues previously raised by the Committee and that no amendments to Act No. 4688 have been proposed further to those already considered by the Committee at its last session. It therefore once again draws the Government’s attention to the need to amend its legislation so as to ensure compliance with the following Articles of the Convention.

Article 2 of the Convention

–      The need to ensure that self-employed workers, homeworkers and apprentices enjoy the right to organize. In this respect, the Committee notes that section 2 of the draft Law refers to the definition of “worker” provided for in the Labour Law (No. 4857), according to which, an “employee is a real person working under an employment contract” and recalls that section 18 of Act No. 3308 (Apprenticeship and vocational training) leads to the exclusion either explicitly or in practice of these categories of workers.

–      The need to guarantee the right to organize to public employees, such as senior public employees, magistrates, civilian personnel in military institutions and prison guards (section 15 of Act No. 4688).

–      The need to ensure that persons who have been unemployed for over one year or those retired can retain their trade union membership, subject only to the by-laws of the relevant trade union (section 18 of the draft Law on trade unions).

Article 3. Election of representatives

–      The need to ensure that the decision regarding the suspension of a trade union officer’s mandate in cases where he/she becomes a candidate in local or general elections and its termination in case of election belongs to the relevant trade union (sections 22(3) and 27(3) of the draft Law on trade unions).

–      The need to repeal section 10(8) of Act No. 4688, which provides for the removal of union executive bodies in case of non-respect of requirements concerning meetings and decisions of general assemblies set out in the law.

–      The need to repeal section 16 of Act No. 4688 providing for a mandatory termination of trade union membership and duties by reason of resignation and exclusion from the public services or transfer to another branch of activity, so as to ensure the right of organizations to elect their representatives in full freedom.

–      The need to ensure that procedures and principles related to the acquisition and termination of membership are regulated by trade unions’ internal regulations or by-laws and not by the authorities (section 18(10) of the draft Law on trade unions).

Limitations on the right to strike

–      The need to ensure that cases in which strikes may be restricted or even prohibited are limited to those involving: (i) public servants exercising authority in the name of the State; and (ii) essential services in the strict sense of the term, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. With regard to the public service, the Committee recalls that section 35 of Act No. 4688, which provides for the determination and settlement of disputes by the conciliation board, makes no mention of the circumstances in which strike action may be exercised in the public service. With regard to other services, the Committee notes that, on the one hand, the draft Law on trade unions proposes to repeal sections 29–34 of Act No. 2822, which impose important limitations on the right to strike, including banning strikes in specified categories of services and, on the other, it proposes to add section 29, pursuant to which strikes may be fully or partially, permanently or temporarily prohibited by a ruling of the competent court if the strike is deemed contrary to public order or public health (section 42 of the draft Law on trade unions). The Committee considers that the term “public order” is too broad to fall within a strict definition of what may constitute an essential service.

–      The need to amend section 52 of Act No. 2822, which provides for compulsory arbitration by the High Court of Arbitration at the request of one party in disputes concerning activities and establishments where strike is prohibited and where parties have failed to come to an agreement. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is only 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, that is in the case of disputes in essential services in the strict sense of the term.

–      The need to reduce the excessively long waiting period before a strike can be called (section 27 – referring to section 23 – and section 35 of Act No. 2822).

–      The need to ensure that workers’ and employers’ associations are involved in the determination of minimum services and, in cases of disagreement, the question should be settled by an independent body (section 40 of Act No. 2822).

–      The need to repeal severe limitations on picketing (section 48 of Act No. 2822).

–      The need to ensure that no penal sanction could be imposed against a worker for having carried out a peaceful strike and that on no account measures of imprisonment could be imposed, except in cases where during a strike, violence against persons or property or other serious infringements of rights have been committed (sections 70, 71, 72, 73 (except for paragraph 3 repealed by the Constitutional Court), 77 and 79 of Act No. 2822, imposing heavy sanctions, including imprisonment for participating in unlawful strikes).

Supervision of organizations’ accounts (Associations Act No. 5253)

The Committee had previously observed that section 35 of the Associations Act of 4 November 2004 provides that certain specific sections of this Act apply to trade unions, employers’ organizations, as well as federations and confederations, if there are no specific provisions in special laws concerning these organizations. In this respect, section 19 enables the Minister of Internal Affairs or the civil administration authority to examine the books and other documents of an organization, conduct an investigation and demand information at any time, with 24 hours’ notice. Once again, the Committee recalls that the supervision of accounts should be limited to the obligation of submitting periodic financial reports or to cases where serious grounds exist for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention), or if there is a need to investigate a complaint by a certain percentage of the members of the employers’ or workers’ organizations; both the substance and the procedure of such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 125). The Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 19 and 35 of Act No. 5253 of 2004 so as to exclude workers’ and employers’ organizations from the scope of application of these provisions or ensure that verification of trade union accounts beyond the submission of periodic financial reports takes place only where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should be in conformity with the Convention) or in order to investigate a complaint by a certain percentage of members.

While noting the Government’s indication that consultations with the social partners on the amendments to trade union legislation will continue until consensus is reached, the Committee regrets to observe that the Government has not provided any information with respect to the elaboration of the plan of action with clear time lines (requested by the Committee on the Application of Standards) that would allow the Committee to note significant progress in bringing the law and practice into full conformity with the provisions of the Convention. The Committee urges the Government to engage in ongoing assistance with the ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822, 4688 and 5253 and expresses the hope that the final texts will take fully into account its comments above.