Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Türkiye (Ratification: 1993)

Autre commentaire sur C087

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019 (see sections on Civil liberties and Article 2 below).The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK), received on 31 August 2020, of the International Trade Union Confederation (ITUC), received on 16 September 2020, of Education International (EI), received on 1 October 2020, and the Government’s detailed replies thereon. The Committee further notes the observations of the Confederation of Public Servants Trade Unions (MEMUR-SEN), communicated with the Government’s supplementary report.

The Committee had previously noted the observations of the ITUC, received on 1 September 2019 and examined by the Committee below. It had further noted the observations of the KESK and of the Turkish Confederation of Employers’ Associations (TİSK) transmitted by the Government with its report and referring to the issues raised by the Committee below. The Committee further noted the observations of the International Transport Workers’ Federation (ITF), received on 4 September 2019 and referring to the information submitted by the ITUC. The Committee also noted the TİSK observations received on 2 September 2019.

The Committee recalls that it had previously requested the Government to reply to the 2018 observations of the Confederation of Turkish Trade Unions (TÜRK-İŞ) alleging that workers employed temporarily via private employment agencies could not enjoy trade union rights, as well as to the allegations of pressure exercised on workers, particularly in the public sector, to join unions designated by the employer. The Committee notes the Government’s indication that in a “triangular employment contract” arrangement (in which the worker is employed by a temporary employment agency and works for a different employer), workers have the right to organize in the branch of activity in which the employment agency operates. The Committee requests the Government to provide further information in this regard, including concrete examples as to how the rights of workers in a triangular employment contract arrangement are exercised in practice. With regard to the allegation of pressure exercised on workers in the public sector, the Government refers to the legislative provisions guaranteeing protection against anti-union discrimination and points out that unions and workers are entitled to administrative and judicial means to contest such actions. It refers, in particular, to the first paragraph of article 118 of the Penal Code, according to which, 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, or to resign from a trade union office shall be punished by imprisonment for a term of six months to two years. In addition, according to the Government, in such cases, the legislation provides for compensation equivalent to at least the amount of one year’s wage and, in the case of a dismissal, the possibility of reinstatement. Public sector employers have the responsibility to respect the law in discharging their duties and thus are further liable under the public law.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussion that took place in the Conference Committee in June 2019 concerning the application of the Convention. The Committee observes that the Conference Committee noted with concern the allegations of restrictions placed on workers’ organizations to form, join and function and called on the Government to: (i) take all appropriate measures to guarantee that irrespective of trade union affiliation, the right to freedom of association can be exercised in normal conditions with respect for civil liberties and in a climate free of violence, pressure and threats; (ii) ensure that normal judicial procedure and due process are guaranteed to workers’ and employers’ organizations and their members; (iii) review Act No. 4688, in consultation with the most representative workers’ and employers’ organizations, in order to allow that all workers without any distinction, including public sector workers, have freedom of association in accordance with the Convention in law and practice; (iv) revise Presidential Decree No. 5 to exclude workers’ and employers’ organizations from the scope; and (v) ensure that the dissolution of trade unions follows a judicial decision and that the rights of defence in due process are fully guaranteed through an independent judiciary.

Civil liberties. The Committee recalls that for a number of years it has been commenting upon the situation of civil liberties in Turkey. Noting the Government’s indication that domestic administrative or judicial remedies were available against all acts of the administration, the Committee had requested the Government to indicate whether such remedial channels had been invoked by those affected and with what results. The Committee had also requested the Government to provide information on the measures taken 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 recalls that in its previous comment it noted the Government’s reiteration that Turkey is a democratic country, upholding the rule of law and that no trade union had ever been closed or their officials suspended or dismissed on grounds of their legitimate activities. The Government indicated that: (i) with the enactment of the Act on Trade Unions and Collective Labour Agreement (Act No. 6356) and substantial amendments to Act No. 4688 on public employees unions in 2013, the rate of unionization has steadily increased, reaching 22 per cent in public and private sectors combined (66.79 per cent public sector; 13.76 per cent private sector). Currently, there are four trade union confederations in the private sector and ten confederations of public servants trade unions. Like all democratic countries, Turkey has a regulatory framework for organizing meetings and demonstrations. When trade union members transgress the law, destroy public and private property and seek to impose their own rules during the meetings and demonstrations, the security forces are obliged to intervene to preserve public order and safety. The Government indicates that marches and demonstrations can be organized with a prior notification, as illustrated by the May Day celebrations, held by all trade unions and confederations in a peaceful manner. The Government further reiterates that fundamental rights and freedoms are protected under the national Constitution. Apart from the right to seek judicial review against acts of the administration, every person may apply to the Constitutional Court against public authorities for violation of constitutional rights and freedoms. The Government further points out that the allegations mostly concern the period during the state of emergency between July 2016 and July 2018 in the aftermath of a coup attempt and that the problems occurred when the requirements of the state of emergency were ignored and disrespected persistently by some trade unions and their members. Although civil servants do not have the right to strike, strike actions were called for by some public servants’ trade unions and their members; and open air meetings and demonstrations were conducted in violation of the provisions of the Act on Meetings and Demonstrations No. 2911. Consequently, the disciplinary procedures may have been applied for civil servants involved in politics.

Regarding the alleged excessive use of force by the security forces, the Government points out that it has taken all the necessary measures to prevent the occurrence of such incidences. It explains that these incidences largely occurred for two reasons: (i) infiltration of illegal terrorist organizations into the marches and demonstrations organized by trade unions; and (ii) the insistence of some trade unions to organize such meetings in areas not allocated for such purposes. The Government informs that the security forces intervened in 2 per cent of cases out of 40,016 actions and activities in 2016; in 0.8 per cent of cases out of 38,976 activities in 2017; and in 0.7 per cent of cases out of 36,925 activities in 2018. According to the supplementary information provided by the Government, the rate of interference by the security forces decreased from 0.8 per cent in 2017 to 0.7 per cent in 2019. The Government further indicates that in 2019, 51,525 demonstrations or activities were conducted involving 32,166,244 people, representing, compared to 2018, an increase of 3.6 per cent in the number of events and an increase by 11.07 per cent in terms of participants. The Government indicated in its 2019 report that the police intervention occurs only in cases of violence and attacks against the security forces and citizens and when the life of citizens is affected unbearably.

The Committee recalls that in its 2019 report, the Government indicated that a Judicial Reform Strategy was launched on 30 May 2019 by the President of the Republic. The main aims of this reform include strengthening of the rule of law, effective protection and promotion of rights and freedoms, strengthening the independence of the judiciary and improving impartiality, increasing the transparency of the system, simplifying judicial processes, facilitating access to justice, strengthening the right of defence and efficiently protecting the right to trial in a reasonable time. The Government indicated that a clear and measurable Action Plan would also be prepared and the Ministry of Justice would issue annual monitoring reports.

While taking note of the above, the Committee noted with concern the observations of the ITUC alleging that since the attempted coup and the severe restrictions on civil liberties imposed by the Government, workers’ freedoms and rights have been further restricted (the ITUC denounces, in particular, police crackdowns on protests and the systematic dismissal of workers attempting to organize). The Committee further noted with concern the allegation of the murder of a president of the rubber and chemical workers’ union Lastik-İş on 13 November 2018 and the sentencing, on 2 November 2018, of 26 trade union members to a suspended five-month imprisonment for “disobeying the law on meetings and demonstrations” after taking part in a protest in March 2016 demanding the recognition of the right to organize at a private company (the ITUC alleged that the protest was violently dispersed by police). The Committee also noted with concern the ITUC allegations of criminal prosecution of the following trade union leaders for their legitimate trade union activities: (i) the General Secretary of the teacher’s union Eğitim Sen was arrested in May 2019 for attending a press meeting and was thus not allowed to attend the ILO Conference; (ii) Kenan Ozturk, the President of the transport workers’ union TÜMTIS, and four other union officials were arrested under Act No. 2911 for visiting, in 2017, the unfairly dismissed workers of a cargo company in the Province of Gaziantep and holding a press conference; while they await criminal trial, another TÜMTIS leader, Nurettin Kilicdogan is still in prison; (iii) Arzu Çerkezoğlu, the President of the Confederation of Progressive Trade Unions of Turkey (DISK) is facing criminal trial for speaking at the public panel organized by Turkey’s opposition party in June 2016; and (iv) in May 2019, the prosecution began proceedings against Tarim Orman-is, the President of the Civil Servants Union of Agriculture, Forestry, Husbandry and Environment for criticising the Government after he publicly defended workers’ right to benefit from the public facilities.

The Committee noted that the ITUC expressed its concern at the seriousness and persistence of violations of freedom of association and the Government’s authoritarian measures to interfere in trade union affairs and impose heavy restrictions on the right to organize. The ITUC alleged that it has become almost impossible for trade unions in Turkey to operate. It stated, in this respect that from 2016, the Government has justified continued violations of civil liberties under the guise of the state of emergency through associated decrees. As a result, about 110,000 public servants and 5,600 academics had been dismissed; about 22,500 workers in private education institutions had had their work permits cancelled; 19 trade unions had been dissolved and about 24,000 workers were undergoing various forms of disciplinary action associated with workers’ protests. More than 11,000 KESK representatives and members were suspended from their jobs or dismissed because of their trade union activities, under the pretext of national security and emergency powers. Furthermore, the ITUC stated that the Government continued to uphold emergency state laws that allow for arbitrary dissolution of trade union organizations. Decree No. 667 adopted in 2016 provides that “trade unions, federations and confederations … found to be in connection, communication or adherence to formations threatening national security or to terrorist organizations are banned upon the suggestion of the commission and approval of the minister concerned”. The ITUC further alleged that the law makes no distinction between a trade union as an organization with an objective public purpose and individual actors and holds all trade union members guilty by association with a closing down of the union. Although the Government had set up an Inquiry Commission to review its actions, including cases of trade union dissolution, the process did not enjoy the trust of victims and trade unions due to the manner in which it was constituted and the results of the processes so far (the ITUC alleged that it is marred by a lack of institutional independence, long waiting periods, an absence of safeguards allowing individuals to rebut allegations and weak evidence cited in decisions to uphold dismissals).

The Committee notes that in its supplementary report, the Government indicates that Mr Kenan Ozturk, the President of the transport workers’ union TÜMTIS, and four other union members arrested in 2017 were acquitted in May 2018 and that another TÜMTIS leader, Mr Nurettin Kilicdogan, was released in February 2020. Regarding the ITUC allegation on the work of the Inquiry Commission, the Government indicates that the Commission began its work on 22 December 2017 and as of 2 October 2020 it has delivered 110,250 decisions (12,680 accepted and 97,570 rejected). According to the Government, 60 of the acceptance decisions are related to the opening of organizations that were shut down (associations, foundations, and television channels). The Government points out that 87 per cent of the applications have been decided within a period of 33 months. The Government further informs that currently, six Ankara Administrative Courts are competent to deal with the annulment cases brought against the decisions of the Inquiry Commission and that the “average completion time” (to finalize an application for annulment) varies, depending on the court, between 191 and 347 days.

The Committee notes with concern the most recent ITUC allegation that in 2019 and 2020, trade union leaders continued to face arrests and prosecution as the Government tried to suppress critical voices. According to the ITUC, while the courts dismissed several cases, the authorities have fallen into a pattern of systematic targeting, arrest and prosecution of trade union leaders. The ITUC refers to the pending case of Umar Karatepe, director of communication of DISK, noting that his house was raided on 5 March 2020; he was arrested and taken to the police headquarters in Istanbul; and charges against him were unspecified but reportedly related to several statements made on his account on social media.

The Committee further notes with concern the MEMUR-SEN allegation of pressure and harassment put on its members, members of Bem-Bir-Sen, its affiliate, and members of Hizmet-Is, affiliated to Hak-Is, following the local elections of 31 March 2019.

While noting the Government’s reply to some of these allegations, the Committee requests the Government to provide its detailed comments on the remaining lengthy and serious allegations of violations of civil liberties and trade union rights. The Committee observes that the issue of dismissal of trade unionists following dissolution of trade unions is being considered by a tripartite committee of the Committee on Freedom of Association established to examine a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Turkey of Convention No. 87. The Committee will proceed with its examination of these matters once the tripartite committee finalizes its work.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee had noted that section 15 of Act No. 4688, as amended in 2012, excludes senior public employees, magistrates and prison guards from the right to organize. The Committee noted the Government’s reiteration that the restrictions under section 15 of the Act are limited to those public services where the disruption of service cannot be compensated, such as security, justice and high level civil servants.

The Committee notes that the MEMUR-SEN points out to the need to ensure freedom of association rights for pensioners, locum workers (teachers, nurses, midwives, etc.) as well as public servants who are not on the payroll and work without a contract of employment. The Committee requests the Government to provide its comments thereon.

Recalling that all workers, without distinction whatsoever, shall have the right to establish and join trade unions of their own choosing and that the only possible exceptions from the application of the Convention in this regard pertain to the armed forces and the police, the Committee encourages the Government to take the necessary measures to review section 15 of Act No. 4688, as amended, with a view to ensuring to all public servants the right to form and join organizations of their own choosing. It requests the Government to provide information on all measures taken or envisaged in this respect.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that in its previous comments it had noted that section 63(1) of Act No. 6356 provides that a lawful strike or lockout that had been called or commenced may be suspended by the Council of Ministers for 60 days by a decree if it is prejudicial to public health or national security and that if an agreement is not reached during the suspension period, the dispute would be submitted to compulsory arbitration. For a number of years, the Committee had been requesting the Government to ensure that section 63 of Act No. 6356 was not applied in a manner so as to infringe on the right of workers’ organizations to organize their activities free from government interference. While observing that in a decision dated 22 October 2014, the Constitutional Court ruled that the prohibition of strikes and lockouts in banking services and municipal transport services under section 62(1) was unconstitutional, the Committee noted that pursuant to a Decree with power of law (KHK) No. 678, the Council of Ministers can postpone strikes in local transportation companies and banking institutions for 60 days. The Committee further noted with concern that in 2017, five strikes were suspended including in the glass sector on the grounds of threat to national security, while in 2015 the Turkish Constitutional Court had found a strike suspension in the same sector unconstitutional. The Committee recalled that the right to strike may be restricted or banned only with regard to public servants exercising authority in the name of the State, in essential services in the strict sense of the term, and in situations of acute national or local crisis, for a limited period of time and to the extent necessary to meet the requirements of the situation. Recalling the Constitutional Court ruling that strike suspensions in these sectors were unconstitutional, the Committee had requested the Government to take into consideration the above principles in the application of section 63 of Act No. 6356 and KHK No. 678. It further requested the Government to provide a copy of KHK No. 678. The Committee notes a copy of the Decree and will examine it once the translation thereof is available. The Committee further notes the Government’s indication that the power to suspend a strike for 60 days rests with the President when a strike action is harmful to the general health and national security or to urban public transportation of metropolitan municipalities or to economic and financial stability in banking services. The Government indicates that where the strike has been suspended, the High Board of Arbitration makes maximum effort to bring the parties to an agreement. Judicial procedure is open for the stay of execution against the decision of the Board. The Government points out that pursuant to article 138 of the Constitution on “Independence of Courts,” no organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of their judicial power, send them circulars, or make recommendations or suggestions. The Committee notes that, according to the ITUC, while the legislation indicates that the measure of suspension should be limited to strikes that may be prejudicial to public health or national security, it has been interpreted in such a broad manner that strikes in non-essential services have also been effectively prohibited. It informs in this respect that in January 2019 a strike called by the ITF-affiliated railway union in Izmir has been postponed under these laws. The Committee requests the Government to provide its comments thereon. Considering that strikes can be suspended only in essential services in the strict sense of the term, for public servants exercising authority in the name of the State or in an event of an acute national crisis, the Committee requests the Government to ensure that the above is taken into consideration in the application of section 63 of Act No. 6356 and KHK No. 678.

The Committee recalls that the ITUC has previously alleged that Decree No. 5 adopted in July 2018 provided that an institution directly accountable to the Office of the President – the State Supervisory Council (DDK) – had been vested with the authority to investigate and audit trade unions, professional associations, foundations and associations at any given time. According to the ITUC, all documents and activities of trade unions may come under investigation without a court order and the DDK has discretion to remove or change the leadership of trade unions. Recalling that any law that gives the authorities extended powers of control of internal functioning of unions beyond the obligation to submit annual financial reports would be incompatible with the Convention, the Committee had requested the Government to transmit a copy of Decree No. 5 in order to make a thorough examination of its conformity with the Convention. It had also requested the Government to provide specific information on any investigations or audits undertaken pursuant to Decree No. 5 and their results, including any dismissal or suspension of trade union leaders. The Committee notes the Government’s indication that there has never been an investigation or audit of a trade union organization or suspension of a trade union official by the State Supervisory Council pursuant to Decree No. 5. The Government explains that the Council’s powers to investigate with the purpose of ensuring the lawfulness, regular and efficient functioning and improvement of the administration emanates from of article 108 of the Constitution. It further indicates that the Council has no authority to dismiss trade union officials and has never interfered and has no intention to interfere with the internal functioning of the unions. The measures of dismissal can be taken only by the courts within the framework of existing legal arrangements. Furthermore, suspension is a measure applied to public officials in cases where the provision of public services so requires during an administrative investigation. When a suspension measure needs to be taken for elected officials such as trade union officials, the State Supervisory Council can only propose the application of this measure to the competent authorities which, in the case of trade unions, refers to the trade unions’ own supervisory boards and the disciplinary committees. The Committee notes a copy of Decree No. 5 transmitted by the Government and will examine it once its translation is available. The Committee requests that the Government continue to provide information on any investigations or audits undertaken by the Council, pursuant to Decree No. 5 or article 108 of the Constitution, and their results including any sanctions assessed.

Article 4. Dissolution of trade unions. The Committee recalls that after the attempted coup of 15 July 2016, Turkey was in a state of acute national crisis, and that an Inquiry Commission was established to examine applications against the dissolution of trade unions by a decree during the state of emergency. The Committee firmly hoped that the Inquiry Commission would be accessible to all the organizations that desired its review and that the Commission, and the administrative courts that reviewed its decisions on appeal, would carefully examine the grounds for the dissolution of trade unions paying due consideration to the principles of freedom of association. It requested the Government to provide information on the number of applications submitted by the dissolved organizations and the outcome of their examination in the Commission. The Committee had further requested the Government to provide information on the number and outcome of appeals against the negative decisions of the Commission concerning dissolved trade unions. The Committee observes that the Government refers only to cases of Cihan-Sen and Aksiyon-İş Confederations. According to the Government, these organizations, together with their affiliated trade unions, were dissolved on the basis of their connection to the FETO terrorist organization that perpetrated the coup attempt to overthrow the democratically elected government. The Government indicates that the cases of the above-mentioned organizations are still pending before the Inquiry Commission. Recalling that the dissolution and suspension of trade unions constitute extreme forms of interference by the authorities in the activities of organizations, the Committee observes, as noted above, that the issue of dissolution of trade unions is being considered by a tripartite committee of the Committee on Freedom of Association established to examine a representation under article 24 of the ILO Constitution alleging non-observance by the Government of Turkey of Convention No. 87. The Committee will proceed with its examination of this issue once the tripartite committee finalizes its work.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.