Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK), received on 1 September 2021 and the Government’s reply thereon. The Committee further notes the observations of the Confederation of Turkish Trade Unions (TÜRK-IS), communicated with the Government’s report. The Committee finally notes the observations of the Turkish Confederation of Employer Associations (TİSK), received on 7 September 2021, referring to the issues raised by the Committee below.

Scope of the Convention. In its previous comments, the Committee had noted that while the prison staff, like all other public servants were covered by the collective agreements concluded in the public service, this category of workers did not enjoy the right to organize (section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688)). Recalling that all public servants not engaged in the administration of the State or those who are not members of the armed forces or the police, defined in a restrictive manner, must enjoy the rights afforded by the Convention, the Committee requested the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff could be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee notes the Government’s indication section 15 of the Act was drafted taking into account the provisions of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Labour Relations (Public Service) Convention, 1978 (No. 151). While reminding its comments under Convention No. 87 concerning the right of prison staff to organize, the Committee recalls once again that under the terms of Convention No. 98, the right of collective bargaining can be denied only to members of the armed forces, the police and to public servants directly engaged in the administration of the State; the simple fact of being employed by the Government does not automatically exclude such workers from the rights enshrined in the Convention. The Committee therefore once again requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect their rights and interests. The Committee requests the Government to indicate all progress made in this regard.

The Committee had previously requested the Government to provide its comments with regard to the observation made by the Confederation of Public Servants Trade Unions (MEMUR-SEN) on the need to ensure freedom of association and collective bargaining rights to locum workers (teachers, nurses, midwives, etc.) as well as public servants who work without a written contract of employment. The Committee notes the Government’s indication that Act No. 4688 applies to public servants, whereas locum workers do not fall with the scope of that law as they are not considered to be public servants. Recalling that locum workers as well as those employed in the public service without a written contract of employment should enjoy the rights enshrined in the Convention, the Committee requests the Government to provide detailed information on freedom of association and collective bargaining rights afforded to these categories of workers.

Articles 1, 2 and 3 of the Convention. Massive dismissals in the public sector under the state of emergency decrees. The Committee recalls that in its previous comments, it had noted the information on the high number of suspensions and dismissals of trade union members and officials under the state of emergency and reiterated its firm hope that the Inquiry Commission and the administrative courts that review its decisions would carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds. The Committee requested the Government to provide specific information on the number of applications received from trade union members and officials, the outcome of their examination by the Inquiry Commission and on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials. The Committee notes that according to the information provided by the Government, as of 28 May 2021, there were 126,674 applications submitted to the Inquiry Commission. Since 22 December 2017, the Commission delivered its decisions in respect of 115,130 applications, out of which, 14,072 were accepted for reinstatement and 101,058 were rejected while 11,544 applications are still pending. While taking note of the general statistics provided by the Government, the Committee  regrets  once again the absence of specific information on the number of trade union members and officials involved. The Committee notes with  concern  the high number of rejection cases (currently almost 88 per cent) and further  regrets  the absence of information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials. Reiterating that in line with Article 1 of the Convention, the Inquiry Commission and the administrative courts that review its decisions shall carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds, the Committee once again urges the Government to provide detailed and specific information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials. Further in this respect, the Committee recalls that it had expressed its concern at the allegation of Education International (EI) that close to 75 per cent of the members of the Education and Science Workers Union of Turkey (EĞİTİM SEN) dismissed from the public service were still without employment. The Committee regrets that no information has been provided by the Government on this serious allegation and once again requests the Government to provide its comments thereon.

Article 1. Anti-union discrimination in practice. The Committee recalls that in its previous comments it had noted numerous allegations of anti-union discrimination in practice despite the existence of a legislative framework aimed at protecting against anti-union discrimination. The Committee requested the Government to continue engaging with the social partners regarding complaints of anti-union discrimination practices in both the private and public sectors. The Committee regrets that no new information has been provided by the Government in this respect and that, rather, the Government once again refers to the existing legislative framework, which, in its opinion, adequately protects against anti-union discrimination. The Committee notes that in its observations, the KESK alleges new cases of transfers and relocations of its members. The Committee notes the Government’s indication that all transfers referred to by the KESK were necessitated by the requirements of the service and that any anti-union discrimination would be in breach of the national legislation. The Government points out that judicial remedies are available to all those concerned. Emphasizing that the guarantees enunciated in the Convention would remain a dead letter if the national legislation is not complied with in practice, the Committee therefore reiterates its previous request and asks the Government to provide information on the concrete steps taken to engage with the social partners on the issue of anti-union discrimination in practice.

In addition, the Committee recalls that following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference, which requested the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors, it has been requesting the Government to provide information on the measures taken to that end. The Committee notes that the Government reiterates that it is currently not possible to obtain reliable data on the cases of anti-union discrimination and points out the difficulties with carrying out data collection, which include the length of judicial processes and the need to make considerable arrangements in the records and databases of various institutions. While being fully cognisant of the difficulties referred to above, the Committee once again underlines the importance of statistical information for the Government to fulfil its obligation to prevent, monitor and sanction acts of anti-union discrimination.  The Committee stresses the need to take concrete steps towards establishing the system for collecting such information and expects the Government to provide in its next report information on all measures taken to that end.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. It noted in this respect that pursuant to section 34 of Act No. 6356, collective work agreement may cover one or more than one workplace in the same branch of activity, thereby making cross-sector bargaining in the private sector impossible. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 to ensure that it did not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes that the Government reiterates that Act No. 6356 was drafted taking into account the views of the social partners and that it does not restrict collective bargaining to the level of workplace or one employer. The Government indicates in this respect that any change to the current arrangements can only result from the joint will of and demands from the social partners. The Committee notes the TİSK indication that collective agreements can cover a large number of work places at local, regional and national levels at the same branches and that in the TİSK opinion, the current regulation is appropriate and strengthens the industrial peace.

While taking note of these explanations, the Committee once again recalls that in accordance with Article 4 of the Convention, collective bargaining should remain possible at all levels and that the legislation should not impose restrictions in this regard. The Committee recognizes that while the search for a consensus with regard to collective bargaining is important, it cannot constitute an obstacle to the Government's obligation to bring the law and practice into conformity with the Convention. The Committee therefore once again requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 to ensure that the parties in the private sector wishing to engage in cross-sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. Furthermore, the Committee recalls that legal exemptions from the branch threshold requirement were granted until 12 June 2020 to the previously authorized trade unions to prevent the loss of their authorization for collective bargaining purposes. Noting that the provisional exemption has expired on 12 June 2020, the Committee had requested the Government to indicate if further extension had been decided and if not, to provide information on the impact of the non-extension on the capacity of previously authorized organizations to bargain collectively and to indicate the status of the collective agreements concluded by them. It also requested the Government to continue monitoring the impact of the perpetuation of the branch 1 per cent threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

The Committee notes the Government’s indication that among the unions benefiting from the exemption until mid-2020, only one union exceeded the threshold. The Government points out, however, that workers were not left without a union when the exemption was not extended as there is more than one union in every branch of activity with a membership that exceeds the thresholds and that it is possible for workers to become members of these trade unions in the branch they work in. The Committee notes the statistical information on the number of collective agreements to which unions which were under the exemption are parties. The Committee notes that the TİSK considers that granting unauthorized unions the right to collective bargaining will impair Turkish industrial relations system and will disrupt the competitiveness and existing industrial peace. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold, the Government requests the Government to continue monitoring the impact of the branch 1 per cent threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

With regard to the workplace and enterprise representativeness thresholds, the Committee had noted section 42(3) of Act No. 6356, which provided that if it was determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information was notified to the party which made the application for the determination of competence. It had further noted section 45(1), which stipulated that an agreement concluded without an authorization document was null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee had requested the Government to take the necessary measures to amend the legislation, in consultation with the social partners, so as to ensure that if no union represented the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee notes that the Government reiterates that it would consider the proposal for the amendment to the legislation if put forward by the social partners and if such a proposal represented a broad agreement. Recalling once again that while the search for a consensus with regard to collective bargaining is important, it cannot constitute an obstacle to the Government's obligation to bring the law and practice into conformity with the Convention, the Committee once again requests the Government to amend the legislation and to provide information on all measures taken or envisaged in this regard.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had previously noted that section 28 of Act No. 4688, as amended in 2012, restricted the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government’s indication that issues that concern public servants in general, but which are not covered by the collective agreements, are placed on the agenda of the Public Personnel Advisory Board. The Committee is therefore bound to once again recall that while the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention.  Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the collective agreements concluded in the public service. In this respect, the proposals for the general section of the collective agreement were prepared by the confederation members of PSUD and the proposals for collective agreements in each service branch were made by the relevant branch trade union representative member of PSUD. The Committee had also noted the observation of the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN) indicating that many of the proposals of authorized unions in the branch were accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprived the branch unions of the capacity to directly exercise their right to make proposals. Having noted that although the most representative unions in the branch were represented in PSUD and took part in bargaining within branch-specific technical committees, their role within PSUD was restricted in that they were not entitled to make proposals for collective agreements, in particular where their demands were qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. While noting the Government’s detailed explanation regarding the PSUD membership, the Committee again requests the Government to ensure that Act No. 4688 and its application in practice enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State. The Committee requests the Government to indicate all developments in in this respect.

Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employee Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had noted that 7 of the 11 members of the Board including the chair were designated by the President of the Republic and considered that this selection process could create doubts as to the independence and impartiality of the Board. The Committee had therefore requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Committee notes that the Government limits itself to referring to section 34 of Act No. 4688, which determines the composition and working procedures of the Board. The Committee therefore once again requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

The Committee recalls that the Government can avail itself of the technical assistance of the ILO with regard to the issues raised above.