Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011, Education International (EI) in a communication dated 31 August 2011, and the Turkish Union of Public Employees in the Education, Training and Science Services (EGITIM SEN) in a communication dated 12 September 2011. The Committee notes the observations provided by the Government on the 2010 comments of the Confederation of Public Employees’ Trade Unions (KESK), ITUC and EI, as well as on the 2011 ITUC comments. The Committee recalls that in its previous observation it had also noted the comments submitted by the Independent Confederation of Public Servants’ Trade Unions (BASK) in a communication dated 11 October 2010. The Committee requests the Government to provide its observations thereon as well as on the 2011 EI comments.

The Committee notes the discussion that took place in the 2011 Conference Committee on the Application of Standards.

Civil liberties. The Committee recalls that for a number of years it has been commenting upon the situation of civil liberties in Turkey. It further recalls that in its previous observation, while taking note of the information provided by the Government on the steps taken to avoid police violence and undue interference, the Committee observed with concern the allegations of important restrictions placed on freedom of speech and assembly of trade unionists, including numerous cases of arrests of trade unionists contained in the above-noted ITUC, KESK and EI communications. The Committee notes the Government’s observations thereon. The Committee notes, in particular, that the Government, referring to the alleged cases of arrests of trade unionists, points out that while the mentioned trade union leaders have been arrested and detained, such measures were taken against them not because of their trade union activities, but rather because of their membership in a terrorist organization. The Committee notes in this respect that EI indicated that by accusing trade unionists of being a member of an armed and illegal organization, the State effectively stigmatized and delegitimized the trade union movement in Turkey. With regard to the EI allegation relating to the assaults committed by the riot police which used tear gas against members of the EGITIM SEN during a march organized on 5 June 2009, the Government indicates that the security forces intervened by gradually using gas, in a controlled manner, in order to disintegrate the group of people who forced the barricades. The Government provided similar explanation with regard to interventions by the security forces in other strikes and demonstrations. The Government considers that the security forces acted in accordance with the regulations and exerted force accordingly. The Committee notes with concern new allegations of restrictions placed on freedom of association and assembly of trade unionists. The Committee, as did the Conference Committee, once again recalls that respect for civil liberties is an essential prerequisite to freedom of association and 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 be 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 into the new allegations concerning all the cases of use of violence during police or other security force interventions and to provide information on its outcome in its next report.

Legislative issues. The Committee recalls that for a number of years it had 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 further recalls that in its previous observation, the Committee had noted the draft Act on Trade Unions amending Acts Nos 2821 and 2822. In this respect, the Committee noted that in general, the draft provisions concerning internal functioning of unions and their activities appeared to be less detailed than corresponding provisions of Acts Nos 2821 and 2822, which previously gave rise to repeated interference by the authorities. The Committee had further noted several other improvements concerning, among others, the procedure for establishment of a trade union. The Committee noted, however, that the draft did not deal with all issues previously raised by the Committee and that no amendments to Act No. 4688 have been proposed. It therefore expressed the hope that the necessary measures aimed at the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688 will be taken without further delay.

The Committee notes the Government’s statement before the 2011 Conference Committee to the effect that more time was needed for revising the legislation regarding the industrial relations system and that the harmonization process of the legislation had not been fully completed. The Committee further notes that the Conference Committee requested the Government to provide detailed and complete information on all progress made in this respect to the Committee of Experts for its 2011 session. While observing with regret the absence of the Government’s report, the Committee notes the Government’s communication dated 30 November 2011 by which it informs that a draft Act on Collective Labour Relations had been prepared by the Tripartite Consultation Board. The Government expects that this draft, which aims at bringing the Turkish legislation into conformity with the Convention, will be enacted by Parliament in the first half of 2012. The Committee expresses the hope that the new legislation amending Acts Nos 2821, 2822 and 4688 will be adopted without further delay and that it will take into account the following points raised by the Committee in its previous observations.

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.

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.