Rapport définitif - Rapport No. 273, Juin 1990

1. 19. In communications dated 30 January and 28 February 1990, the Turkish Railway Workers' Union (DEMIRYOL-IS) submitted a complaint against the Government of Turkey alleging violation of trade union rights. For its part, the Confederation of Turkish Workers' Unions (TURK-IS) submitted a complaint on the same grounds in communications dated 20 February and 13 March 1990. The International Transport Workers' Federation (ITF) stated that it was supporting the complaint of its affiliate, the Turkish Railway Workers' Union (DEMIRYOL-IS), in a communication dated 6 February 1990.
2. 20. The Government sent its observations and comments in reply to the allegations made by the complainant organisations as a whole in communications dated 10 and 17 April 1990.
3. 21. Turkey has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 22. The Turkish Railway Workers' Union (DEMIRYOL-IS) alleges that, out of a total of 61,788 workers employed in the public railways enterprises, 28,000 are not authorised to set up or join trade unions on account of their status as public servants or contract employees. Indeed, according to the complainant organisation, both the Constitution, which devotes article 51 to the principle of freedom of association, and Act No. 2821 respecting trade unions of 5 May 1983 only cover "workers", thus excluding public servants and contract employees from their scope. The trade union goes on to state that, Legislative Decree No. 399 of 29 January 1990, amending Legislative Decree No. 233, forbids public servants and contract employees in public enterprises, including railway transport enterprises, to bargain employment and wage conditions collectively (section 3(d)) and denies contract employees any trade union rights whatsoever (section 14); they are forbidden to belong to a trade union, engage in trade union activities, participate in, encourage or support a strike. The complainant states that this is in violation of the principles of freedom of association contained in the ILO Constitution and in Convention No. 98.
2. 23. Furthermore, the trade union points out that section 29 of Act No. 2822 respecting collective labour agreements, strikes and lock-outs of 5 May 1983, prohibits strikes in some services, particularly in the railways and other urban rail public transportation. It maintains that this is not in accordance with the principles of freedom of association, which only acknowledge the prohibition of the right to strike in essential services, i.e., those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In the complainant organisation's opinion, the services in question do not enter into the category of essential services in the strict sense of the term.
3. 24. For its part, TURK-IS maintains that in the long term, Legislative Decree No. 399, which does not allow contract employees in public enterprises to have trade union rights, will result in the dismantling of the trade union movement. The TURK-IS explains that under a similar decree, Decree No. 233, adopted last year, some 20,000 workers in the public sector lost their status as "workers" and were automatically reclassified as "contract employees". In spite of the fact that the Constitutional Court declared Decree No. 233 to be unconstitutional, the Government gave effect to Legislative Decree No. 399 on 29 January 1990 - the provisions of which are similar to those declared to be unconstitutional and which infringe Convention No. 98. TURK-IS specifies that this Decree, adopted and promulgated by the Council of Ministers under the Act on special powers, is at present before Parliament, in accordance with the procedure applicable in such circumstances.

B. The Government's reply

1. 25. In its reply, the Government specifies that the only members of staff in public enterprises to be deprived of trade union rights are those having the status of public servant or contract employee - a status determined in accordance with the provisions of Acts Nos. 3173 and 5616, adopted in 1937 and 1950 respectively, at a time when trade union rights were not regulated in a detailed way under Turkish legislation. Given these circumstances, the Government goes on to state that, Decrees Nos. 233 and 399, which only concern these categories of staff, cannot be considered as a move on the part of the Government to restrict trade union rights laid down in the Constitution and other legislation on staff with the status of "worker", but as a measure to guarantee the requirements of the services provided by the enterprises in question.
2. 26. What is more, the Government points out that the Decrees in question do not oblige a "worker" to change his status to that of contract employee if he has not made the request to do so; in fact, it was staff members with the status of public servant who themselves decided upon the change because Decrees Nos. 233 and 399 grants them more favourable wage conditions than Act No. 657 respecting public servants. In the railways sector, about 17,000 public servants took advantage of this move. It is therefore wrong to state, as does TURK-IS, that 200,000 "workers" in public enterprises became "contract employees", since there were 391,644 "workers" in the public sector as at 31 December 1985, 387,339 as at 31 December 1986, 385,224 as at 31 December 1987 and 379,777 as at 31 December 1989. As regards the railways sector, the Government points out that none of the 28,297 "workers" employed in these enterprises ever benefited from a change of status or were forced to do so, and that as "workers", all of them are entitled to the trade union rights granted them under Turkish legislation.
3. 27. The Government adds that, in accordance with section 60, Decree No. 399 will only enter into force after being ratified by the Parliament, which contradicts the allegations of the TURK-IS. Furthermore, the Government points out that the DEMIRYOL-IS sent a circular letter to the contract employees stressing this provision in the Decree and inviting all the staff with this status to join a trade union. However, the Government points out that although it is too early to predict the outcome of this Decree, any employee who is not a worker is not covered by Convention No. 98 and, if public servants and contract employees in state enterprises are not authorised to engage in trade union activities or strikes or to bargain collectively, this ban must be viewed within the framework of Article 6 of Convention No. 98.
4. 28. As regards the prohibition of the right to strike in railway and other urban public rail transport, as provided for under section 29 of Act No. 2822, the Government is of the opinion that this prohibition is in accordance with the principles of freedom of association since the services in question are essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population and that the ban is appropriate to national conditions, as provided for under Article 4 of Convention No. 98.

C. The Committee's conclusions

1. 29. The Committee notes that the complaint hinges on three issues: (1) the denial of trade union rights of public servants and contract employees in public enterprises; (2) the denial of the right to bargain collectively for both these categories of staff; (3) the prohibition of the right to strike in the rail transport sector.
2. 30. As regards the first aspect of the complaint, the Committee notes that under article 51 of the Turkish Constitution, only "workers" enjoy the right to form unions to defend and promote the social and economic rights and interests of their members. This appears to exclude from this constitutional right public servants and, as alleged by DEMIRYOL-IS, people employed in public enterprises having the status of public servants. In its reply the Government does not deny this allegation but points out that the "public servants" in public enterprises, particularly in the railways, are a restricted category, decided upon in accordance with legislation adopted before the regulation of trade union rights in Turkey. The Committee notes, however, that Decree No. 399 intends, under section 3, to review this category of staff.
3. 31. As regards contract employees in public enterprises, the Committee is unable, given the contradictory information at its disposal, to sustain or refute the allegation that this category of staff is excluded from the scope of Act No. 2821 respecting trade unions of 5 May 1983.
4. 32. The Committee nevertheless notes that, if Decree No. 399 is adopted, this category of staff will, under section 14, be denied any trade union rights, i.e.: the right to join a trade union, to engage in trade union activities, to decide upon, encourage or participate in a strike or to support the initiative and its course. What is more, from allegations made by the complainant organisations, which have not been denied, the Committee understands that a legislative decree, Decree No. 233, was adopted the previous year, was subsequently declared to be unconstitutional and that it contained similar provisions.
5. 33. In these circumstances, the Committee recalls the importance it attaches to the principle of freedom of association according to which all workers, without distinction whatsoever and irrespective of their legal status, including public servants and contract employees, are entitled to set up and join organisations of their own choosing. The Committee therefore requests the Government to amend the provisions of the current or proposed legislation that contravene these principles, in order to guarantee to staff in public enterprises having the status of public servant or contract employee, the right to set up and join organisations of their own choosing. It requests the Government to keep it informed of developments in this situation.
6. 34. As regards the second aspect of the complaint, the Committee, on the basis of the information available to it, understands that staff in public enterprises having the status of public servant are excluded from the scope of the legislation on collective bargaining (Act No. 2822 of 5 May 1983), as they are not "workers" under the terms of this Act and that employment and wage conditions are settled in accordance with Public Service Statute No. 657. Furthermore, it is intended that under Decree No. 399 this category of staff - as well as contract employees in public enterprises - will be forbidden to bargain collectively their employment and wage conditions (section 3(d) of Decree No. 399).
7. 35. In these circumstances, the Committee recalls that Article 6 of Convention No. 98 does indeed authorise the exclusion of public servants engaged in the administration of the State. However, the Committee has already pointed out, as has the Committee of Experts on the Application of Conventions and Recommendations, that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector, who do not act as agents of the public authority (even though they may be granted a status identical with that of public officials engaged in the administration of the State) is contrary to the requirements of the Convention. A distinction must be drawn between public servants employed in various capacities in government ministries or comparable bodies and other persons employed by the Government, by public undertakings or by independent public corporations.
8. 36. In addition, the Committee draws the Government's attention to the fact that no provision in Convention No. 98 authorises the exclusion of staff having the status of contract employee from its scope.
9. 37. The Committee therefore requests the Government to amend the provisions of the national legislation, in particular those of Decree No. 399, so that public servants who are not engaged in the administration of the State and contract employees in public enterprises have the right to bargain collectively in accordance with Article 4 of Convention No. 98. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
10. 38. As regards the final aspect of the complaint, namely the prohibition of the right to strike in railway and other urban public rail transport set out in section 29 of Act No. 2822, the Committee notes the Government's statement to the effect that this prohibition is justified because these are services whose interruption would endanger the life, personal safety or health of the whole or part of the population, taking account of national conditions. The Committee must point out that the reference to national conditions in international instruments concerning trade union rights is designed to enable governments to take account of the national situation in implementing the rights they are bound to promote, but that reference does not justify a prohibition of these rights.
11. 39. The Committee therefore draws the Government's attention to the fact that, in its opinion, workers in railway transport enterprises or other urban public rail transport - irrespective of their legal status - are not carrying out an essential service in the sense of the term given by the Committee on Freedom of Association, and that they should therefore be able to strike to defend their interests. However, the Committee does not exclude the possibility that a minimum service might be established in these enterprises to maintain activities strictly essential for the safety of machinery and equipment and for the prevention of accidents, with the participation of the workers' organisations concerned. The Committee therefore trusts that the Government will amend its legislation, in accordance with the principles of freedom of association requiring that workers may have recourse to strike action as a means of defending their interests when they are not performing essential services in the strict sense of the term.