Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Türkiye (Ratification: 1993)

The Committee notes the information provided in the Government’s report, as well as the comments made by the Confederation of Turkish Trade Unions (TÜRK-IŞ), the Confederation of Progressive Trade Unions of Turkey (DISK) and the Turkish Confederation of Employers’ Associations (TISK).

1.  Right of workers’ organizations to elect officers freely.  In its previous comments, the Committee noted that section 37 of the Trade Unions Act No. 2821, as amended in June 1997, still provided that union officers may not also be candidates for local administrative and general parliamentary elections, under penalty of imprisonment of up to two years (section 59(6)). In its latest report, the Government indicates that union executive officers may become candidates for local or general elections without losing their union status; rather their official functions are suspended and terminated only if they are elected. According to the Government, this provision is in line with the constitutional principle that members of Parliament represent not merely their own constituencies and constituents, but the nation as a whole. As concerns the penalty of imprisonment, the Government indicates that section 59(6) is only applicable to the second paragraph of section 37. While noting this final point, the Committee must once again recall that it is the prerogative of workers’ and employers’ organizations to determine the conditions for electing their leaders, and the authorities should refrain from any undue interference in the exercise of the right of workers’ and employers’ organizations to elect their officers in full freedom, as established under Article 3 of the Convention. Thus, the effect of being candidate or being elected in local or general elections should be left to the determination of the trade union members in their respective statutes and not a matter for the Government to regulate. The Committee therefore once again requests the Government to indicate the measures envisaged to repeal this restriction and to ensure that the conditions of eligibility for trade union office are determined by the organizations themselves.

2.  Right to organize of public servants.  As concerns the right to organize for public servants, the Committee notes from the Government’s report that the draft bill on public servants’ unions submitted by the Government has been approved by the Parliamentary Committee on Health and Social Affairs with several amendments. However, the Parliamentary Committee on Planning and Budget has not concluded its work yet. The Government provided the latest version of the draft Bill in Turkish with its report, indicating that it was still subject to amendments that might be proposed by the Committee on Planning and Budget and General Assembly. The Committee regrets however that the Government did not respond to the 1999 comments made by DISK to the effect that this Bill was in direct contravention with certain principles of freedom of association. The Committee requests the Government to provide information in its next report in reply to the comments made by DISK when the Committee will also be in a position to fully examine the contents of the draft Bill. In this respect, the Committee recalls the need to adopt legislation to ensure the full rights of the Convention to public servants, including the right to strike for public servants who are not exercising authority in the name of the State. It requests the Government to indicate in its next report any developments in respect of the draft Bill.

3.  Rights of workers’ organizations to organize activities and formulate their programme free from Government interference.  As concerns its previous comments in respect of certain restrictions on strike action, the Committee notes the information provided in the Government’s report. It notes with regret however that the Government has not provided any information in respect of the prohibition of protest and sympathy strikes (section 54) and the severe sanctions, including imprisonment, for participation in "unlawful" strikes not determined in accordance with freedom of association principles, provided for in Act No. 2822 on collective labour agreements, strikes and lockouts of 5 May 1983, other than to say that no amendments are foreseen in respect of sympathy strikes because of a corresponding provision in article 54 of the Constitution. In this respect, the Committee would draw the Government’s attention to paragraphs 168 and 177 of the 1994 General Survey on freedom of association and collective bargaining in which it has indicated that: (1) a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful; and (2) sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Furthermore, if measures of imprisonment are at all to be imposed, they should be justified by the seriousness of the offences committed. The Committee requests the Government to take the necessary measures to amend its legislation, including where necessary the Constitution, in accordance with these principles and to indicate in its next report the measures taken or envisaged in this regard.

As concerns the imposition of compulsory arbitration (section 32 of Act No. 2822) in respect of services which cannot be considered to be essential in the strict sense of the term (sections 29 and 30), the Committee notes the information and statistics provided in the Government’s report. The Committee must recall, however, that such restrictions on strike action can only be justified in respect of essential services, public servants exercising authority in the name of the State and in cases of acute national crisis. It further recalls that essential services are only those the interruption of which would endanger the life, personal safety or health of whole or part of the population (see 1994 General Survey, paragraph 159), whereas sections 29 and 30 of Act No. 2822 prohibit strike action in activities and services, including property saving, funeral and mortuary, exploration, production and refining of gas and petroleum, banking and public notaries, sanitation, educational and training or day nursery and old‑age retirement homes, and cemeteries. In this respect, the Committee draws the Government’s attention to paragraph 160 of its 1994 General Survey wherein it states that, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, the authorities could establish a system of negotiated minimum service in other services which are of public utility rather than impose an outright ban on strikes, which would be limited to essential services in the strict sense of the term.

Moreover, the Committee considers that sections 21 to 23 of Act No. 2822, read with section 27, require an excessively long waiting period of almost three months from the start of negotiations before a decision to call a strike may be taken. Noting from the Government’s report that the Ministry of Labour and Social Security has prepared a draft bill to amend Act No. 2822, among others, the Committee requests the Government to take the necessary measures to amend sections 29 and 30 so as to ensure that strike action may only be prohibited in respect of essential services in the strict sense of the term, public servants exercising authority in the name of the State and in cases of acute national crisis and to amend sections 21 to 23 so as to ensure that the waiting period prior to declaring a strike is not excessively long.

As concerns the right to strike in export processing zones (EPZs), the Committee recalls that Act No. 3218 of 1985 imposes compulsory arbitration for a ten‑year period in EPZs for the settlement of collective labour disputes. According to the Government’s report under Convention No. 98, the ten‑year period laid down under the Act expired in the Mersin and Antalya zones in 1997 and will come to an end in the Aegean and Atatürk Airport zones in 2000. The Committee would nevertheless recall that the imposition of compulsory arbitration poses a severe limitation on the right of workers’ organizations to organize their activities and formulate their programmes free from interference by the public authorities in accordance with Article 3 of the Convention. It therefore requests the Government to indicate in its next report the measures taken or envisaged to amend Act No. 3218 so that all workers in export processing zones have the possibility of taking industrial action in defence of their interests.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring the legislation into conformity with the abovementioned points and once again recalls that ILO technical assistance is available in this regard should the Government so desire.

Finally, the Committee is raising a number of other points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2001.]