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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Türkiye (Ratification: 1952)

The Committee notes the comments made by the Turkish Union of Public Employees in the Education, Training and Science Services. (EGITIM SEN) in a communication dated 17 December 2010 and the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 alleging violations of collective bargaining rights and numerous cases of anti-union dismissals. The Committee requests the Government to provide its observations thereon in its next report. The Committee further notes the comments submitted by the International Metalworkers’ Federation (IMF) in a communication dated 31 August 2011 alleging anti-union dismissals that have taken place at two enterprises, and the Government’s observations thereon. The Committee examines the comments submitted by Education International (EI) in the framework of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee recalls that in its previous observation it had noted the draft Act on Trade Unions amending Acts Nos 2821 (Trade Unions Act) and 2822 (Collective Agreements, Strikes and Lock-outs Act). In this respect, the Committee notes the discussion that took place in the June 2011 Conference Committee on the Application of Standards regarding the application of Convention No. 87 in Turkey and, in particular, the Government’s statement 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 expresses the firm hope that the necessary measures aimed at the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688 (Public Servants Trade Unions Act) will be taken without further delay and that any new legislation will take into account the following points raised by the two Committees.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous observation, while taking due note of legislative provisions introducing dissuasive sanctions against acts of anti-union discrimination (sections 118 and 135 of the Penal Code No. 5237, and section 18(2) of Act No. 4688), it observed that the ITUC referred to the widespread incidences of acts of anti-union discrimination in the public and private sectors, such as transfers of public employees who are trade union members or officers, interference in the activities of public sector trade unions by the Government as employer, and blacklisting and pressure to quit the union in the private sector. The Committee noted that similar allegations were submitted by the Public Employees’ Trade Unions (KESK). The Committee requested the Government to indicate the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee notes the observations provided by the Government on the ITUC and KESK comments. The Government indicates, in particular, that in addition to the abovementioned legislative provisions which, in its view provide for sufficient protection against all types of discrimination, the necessary warnings have been issued by the Government and four circulars have been published by the Office of the Prime Minister on the unacceptability of interference in trade union activities of public employees. The Committee further notes that, in its report, the Government indicates that no statistical database regarding complaints of anti-union discrimination is kept by the Ministry of Labour and Social Security. It further explains that, as regards the public sector, public servants have the right to make written or verbal complaints to their supervisors requesting to investigate cases of trade union discrimination. If the alleged cases are not resolved following this procedure, administrative proceedings can be initiated. The Government informs that the State Personnel Administration possesses statistical information and documents submitted to it by the relevant institutions regarding claims relating to cases of anti-union discrimination in the public sector. The Committee requests the Government to provide this statistical data. The Committee notes that in its latest communication, the ITUC refers to cases of reinstatement ordered by the court. Noting, however, that no information has been provided by the Government with regard to the private sector and noting that some of the ITUC allegations concern the private sector, the Committee reiterates its previous request for information and expresses the firm hope that the Government will take all necessary measures to ensure that the provisions of the Convention are effectively applied.

Remedies and compensation. The Committee had previously requested the Government to update the sanctions provided for under sections 59(2) (non reinstatement of trade union officers) and 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 and to ensure that the compensation afforded to a trade union officer who wishes to return to his/her post and is not reinstated for anti-union reasons has a dissuasive effect. The Committee notes in this respect that section 24 of the draft Law on Trade Unions would appear to address the issue previously raised by the Committee with regard to adequate compensation for acts of anti-union discrimination as it proposes to provide, in addition to the compensation provided for under the Labour Law (No. 4857), for a compensation of not less than the worker’s annual wage. With regard to the non-reinstatement of a trade union officer who wishes to return to his/her post, section 22 of the draft merely indicates that, while calculating the compensation, the employment period in the workplace shall be taken into consideration, as well as the wage and other rights enjoyed by the worker prior to termination. The Committee considers that compensation established solely pursuant to this criterion would not constitute a sufficiently dissuasive sanction against an employer. The Committee therefore once again requests the Government to review the draft Law on Trade Unions so as to further amend the relevant sections of Act No. 2821.

Article 4. Free and voluntary collective bargaining. The Committee recalls that it had previously expressed the hope that the Government would take the necessary measures to amend section 12 of Act No. 2822 so as to ensure that, where no union meets the 50 per cent membership criterion, the existing unions at the workplace or enterprise may bargain at least on behalf of their own members regardless of whether they are affiliated to a confederation or not. The Committee notes that, while section 39 of the new draft Law on Trade Unions, amending section 12 of Act No. 2822, proposes to abolish the requirement of affiliation to a major confederation in order for a union to be able to engage in collective bargaining at the workplace level, the proposed amendment maintains the requirement that unions should represent the majority of workers in a workplace (50 per cent plus one) in order to enter into negotiations with the employer with a view to concluding a collective agreement. The Committee once again recalls that in such systems, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members. The Committee therefore once again requests the Government to review the draft Law on Trade Unions so as to further amend section 12 of Act No. 2822.

Collective bargaining in the public service. The Committee recalls that it had previously noted that Law No. 5982 of 2010 repealed several provisions of the Constitution which previously restricted collective bargaining rights and granted, by virtue of its article 53, the right to conclude collective agreements to public servants and other public employees. The Committee had also taken note of the Government’s indication that the constitutional amendment would be followed by the relevant legislative amendments and trusted that Act No. 4688 would be soon amended so as to ensure that public servants enjoy full collective bargaining rights and not just the right to hold “collective consultative talks” as currently established. The Committee therefore once again trusts that Act No. 4688 would be soon amended so as to bring it into conformity with the newly amended Constitution and the Convention by addressing the following points raised previously: (i) if the legislation is to provide for the direct employer to participate in genuine negotiations with trade unions representing public servants not engaged in the administration of the State, the need to ensure that a significant role is left to collective bargaining between the parties; (ii) the need to guarantee clearly within the legislation that negotiations cover not only financial questions but also other conditions of employment; (iii) the need to clearly guarantee that the legislation does not give the authorities, in particular the Council of Ministers, the power to modify or reject collective agreements in the public sector; and (iv) the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that currently provided for (currently 15 days under section 34).

The Committee notes that in its statement before the Conference Committee, the Government referred to the adoption in February 2011 of an Act providing for a collective agreement premium for members of public servant trade unions and to the abrogation of a criticized provision concerning contract personnel in the public sector. The Committee requests the Government to provide a copy thereof.

The Committee further once again recalls that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State who are excluded from this right and, therefore, from the right to be represented in negotiations (as addressed in the comments on the application of Convention No. 87).

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 and 4688, and expresses the firm hope that the final texts will take fully into account its comments above. It requests the Government to transmit the relevant legislative texts or proposed drafts thereof with its next report.