REPRESENTATION (article 24) - TURKEY - C087 - 1996

1. Confederation of Progressive Trade Unions of Turkey (DISK), 2. Confederation of Turkish Trade Unions (TURK-IS)

Closed

Report No. 303 of the Committee on Freedom of Association, Cases Nos. 1810, 1830 -- Representation made by the Confederation of Turkish Trade Unions (TURK-IS) under article 24 of the ILO Constitution alleging non-observance by Turkey of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) -- Complaint against the Government of Turkey presented by the Confederation of Progressive Trade Unions of Turkey (DISK)

Complaint Procedure

1. Allegations: Violation of the trade union rights of workers and their organizations, restrictions on freedom of assembly and demonstration, denial of the trade union rights of public servants and restrictions on the right to strike, restrictive trade union legislation, representativity criteria violating collective bargaining, anti-union discrimination, interference by the authorities in trade union affairs
2. 4. By a communication dated 4 July 1994, the Confederation of Turkish Trade Unions (TURK-IS), referring to article 24 of the ILO Constitution, sent the Director-General a representation alleging non-observance by the Government of Turkey of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). Subsequently, TURK-IS submitted additional information on this matter in its communication of 12 December 1994.
3. 5. At its November 1994 Session, the Governing Body declared this representation receivable and decided to refer it to the Committee on Freedom of Association for examination (Case No. 1810) (see GB.261/14/14).
4. 6. Since that time, several trade union organizations have supported this complaint: the International Federation of Building and Woodworkers (IFBWW), the International Graphic Federation (IGF), the International Transport Workers Federation (ITF), Public Services International (PSI), on 15, 17, 20 and 21 December 1994, together with the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association (IUF) and the International Federation of Chemicals, Energy and Miscellaneous Industries Trade Unions (ICEF) on 6 and 10 January 1995 respectively.
5. 7. In a communication dated 24 March 1995, the Confederation of Progressive Trade Unions of Turkey (DISK) also submitted a complaint against Turkey for violation of freedom of association. Subsequently, it presented additional allegations on this matter in its communication of 2 June 1995.
6. 8. The Government sent its comments on these two cases in communications dated 15 September 1995 and 8 January 1996.
7. 9. Turkey has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Services) Convention, 1978 (No. 151).
8. A. The complainant's allegations
9. 10. The representation submitted by TURK-IS relates to the non-observance by Turkey of Convention No. 87 and, in particular, to various legislative restrictions concerning trade union rights and their connection with public liberties, the right of workers to establish and belong to trade unions and the right of these organizations to draw up their constitutions and rules, to elect their representatives, to freely organize their administration, including the right to strike. It also relates to the administrative suspension of workers organizations, violations of the right of organizations to establish federations and to affiliate with international organizations, and to the obstacles that are placed in the way of international contacts.
10. 11. The complaint made by DISK concerns several breaches in the application of Conventions Nos. 87 and 98, particularly with respect to numerous provisions in the Constitution, the Act on trade unions, the Act on collective agreements, strikes and lockouts and other legislative texts which contravene the provisions of these Conventions. It also raises the negative impact of the dual criteria imposed on trade union organizations for the conclusion of collective agreements (10 per cent of the workers in the branch in question and 50 per cent of the workers in the undertaking). Finally, it relates to acts of anti-union discrimination and acts of interference by the authorities in the structures and activities of the trade unions affiliated to DISK.
11. 12. In its representation, TURK-IS alleges that several provisions in the national legislation violate Convention No. 87, and makes repeated reference to the jurisprudence of the supervisory bodies - both that of the Committee on Freedom of Association and that of the Committee of Experts on the Application of Conventions and Recommendations.
12. 13. Allegation on violations of the right of assembly and demonstration:
13. - The banning of confederations, trade unions and their sections from organizing meetings and demonstrations outside the field of their objectives and competence (section 39 of Act No. 2821 on trade unions of 7 May 1983, as amended), under penalty of their leaders being sentenced to six months to two years in prison (section 59, paragraph 6 of the Act).
14. - Appointment of a government commissioner instructed by the highest public servant in the locality to attend the general assembly of a trade union (sections 67 and 69 of Act No. 2829 on associations of 7 October 1983).
15. - Power of the administrative authorities to postpone for between 30 days and two months the convening of a meeting or a demonstration (Act No. 2911 of 6 October 1983).
16. 14. Allegation of the violation of freedom of opinion and expression:
17. - The banning of trade unions from setting up radio and television stations under the penalty of six months' to two years' imprisonment (Act No. 3984 of 13 April 1994 concerning the establishment and broadcasting of radio and television stations).
18. 15. Allegation concerning restrictions of the right of workers to set up and join organizations:
19. - The prohibition of trade union membership for:
20. (a) inspectors, auditors, members of management committees and other persons exercising similar or higher functions in establishments, institutions, administrations, banks and insurance companies (section 21, paragraph 2 of the Act on trade unions);
21. (b) teaching staff subject to the provisions of Act No. 625 of 18 June 1965 concerning private teaching establishments (section 21, paragraph 5 of the Act);
22. (c) security personnel in private establishments (Act No. 2495 of 22 July 1981 concerning defence and security in certain institutions and establishments);
23. (d) apprentices (Act No. 3308 of 5 June 1986);
24. (e) armed forces conscripts employed in public undertakings (Legislative Decree No. 96/11945 of 17 July 1987);
25. (f) public servants (Act No. 657 of 17 July 1987);
26. (g) public employees with a contract employee status (section 14 of Legislative Decree No. 399 prohibiting trade union membership and the right to strike for 300,000 public sector employees).
27. - Prohibition of occupational or enterprise trade unions (section 3 of the Act on trade unions).
28. - Prohibition of membership of more than one trade union at a time (article 51 of the Constitution and section 22 of the Act on trade unions).
29. - Supervision by a notary of the acquisition of membership of a trade union and the possibility of resigning from a trade union (sections 22 and 25 of the above-mentioned Act).
30. 16. Allegations about restrictions of the right of trade unions to draw up their constitutions and rules, elect their representatives in full freedom and organize the administration of their activities:
31. - Absence of provisions stipulating that trade union officers have the right of access to the premises of establishments (construction sites, factories, plantations).
32. - Ban on trade unions and trade union officers from participating in any political activity under penalty of the union being dissolved and the officers being sentenced to six months to two years in prison (article 52 of the Constitution and sections 37, 39, 58, paragraph 3, and article 59, paragraph 6, of the Act on trade unions).
33. - Ban on members of the Turkish National Grand Assembly from belonging to the leadership of trade unions and of trade union confederations (article 82 of the Constitution).
34. - Limit on the number of members in management committees (from three to nine members in trade unions and from five to 29 members in confederations) (section 15 of the Act on trade unions).
35. - Restrictive eligibility conditions for founder members (must be Turkish and belong to the branch of activity) (section 5 of the Act).
36. - Restrictive eligibility conditions for founder members, officers and trade union delegates (disqualification linked to a long list of offences that have nothing to do with carrying out trade union activities) (sections 5 and 9, paragraph 8, and 34, paragraph 2, of the Act).
37. - Requirement that a person must have worked for ten years in the profession in order to have the right to be a candidate for trade union elections (article 51 of the Constitution and section 14 of the Act on trade unions).
38. - Loss of membership and of any function within trade union bodies on retirement (section 25 of the Act).
39. - Limitation to four consecutive ordinary terms of office for election to trade union, section or confederation office (section 9 of the Act).
40. - Requirement that the president and officers of confederations, trade unions and their sections must declare their personal assets and incomes within three months of their election (section 42 of the Act).
41. - Limit on the number of trade union delegates (one delegate in enterprises of up to 50 workers, two delegates for between 51 and 100 workers, three delegates for between 101 and 500 workers, four delegates for between 501 and 1,000 workers, six delegates for between 1,000 and 2,000 workers and eight delegates above 2,000 workers) (section 34 of the Act).
42. - Ceiling placed on the amount of trade union dues, with trade unions not being allowed to demand other contributions from their members (the amount of the monthly dues that a worker is required to pay to a trade union should not exceed the worker's basic daily wage) (section 23 of the Act).
43. - Interference in trade union affairs, requirement that trade unions must deposit their assets with the banks (article 52 of the Constitution and section 43 of the Act on trade unions).
44. - Requirement that trade unions must pay 25 per cent of their income for worker education to the Apprenticeship Development Fund (section 32(h) of Act No. 3308 of 1986 on apprenticeship).
45. - Ban on trade unions paying out income and revenue to workers who are members (section 39 of the Act on trade unions; this provision would prohibit solidarity contributions for the benefit of other trade unions or non-unionized workers who have been dismissed during the recruitment campaign).
46. - Ban on trade unions accepting the assistance of associations, public professional organizations or foundations under the penalty of a fine amounting to five times the level of the financial aid or donations received (sections 40 and 59, paragraph 7, of the Act).
47. - Administrative and financial supervision of trade unions, auditing of accounts at least once during the normal period of a congress; this is usually carried out by the Ministry of Finance and the Ministry of Labour, together or separately, and may be carried out more often if necessary. Refusal to present accounting documents is punishable by a prison term of one to six months (sections 47 and 59, paragraph 5, of the Act).
48. - Establishment by the President of the Republic of a State Accounts Supervisory Council authorized to examine trade union accounts (section 2 of Act No. 2443 of 1 April 1981).
49. 17. Allegations concerning restrictions on the right to strike:
50. - The right to strike may be exercised only with respect to the conclusion of a collective agreement (article 54 of the Constitution and section 25 of Act No. 2822 on collective agreements, strikes and lockouts).
51. - Apprentices are not covered by collective agreements and do not have the right to strike (section 22 of Act No. 3308 of 5 June 1986 on apprenticeship).
52. - Conscripts employed in public enterprises do not have the right to strike (Decree No. 87/11945 of 12 July 1987).
53. - Strikes are prohibited in export processing zones for ten years as from the date of creation of an establishment (Act No. 3218 of 15 June 1985); during the ten years following commencement of activities in EPZs, Act No. 2822 on collective agreements, strikes and lockouts is not applicable - during this period, however, labour disputes are settled by Supreme Court arbitrators (transitory section 1 of Act No. 3218).
54. - The law prohibits striking by non-unionized workers and unionized workers if they call for a strike without a resolution having previously been adopted by the trade union's competent bodies.
55. - Incitation to an illegal strike is punishable by one to three months in prison, and participation in such a strike by three to six months' prison (section 70, paragraphs 1 and 2 of Act No. 2822).
56. - Prohibition of strikes for political reasons, general strikes and all sympathy strikes, occupation of premises, go-slow strikes, deliberate reductions in output and any act of resistance (article 54 of the Constitution and section 25 of Act No. 2822), under penalty of the trade unions being dissolved (section 58, paragraph 3, of the Act on trade unions) and penal sanctions, including imprisonment of up to one year for trade unionists (sections 72 and 73 of the Act on collective agreements, strikes and lockouts).
57. - Prohibition of the right to strike by public servants and contract workers in public undertakings under penalty of imprisonment (sections 26 and 27 of Act No. 657 of 1965 on public servants, and section 236 of the Turkish Penal Code, Act No. 765 and Legislative Decree No. 399).
58. - Prohibition of strikes in services which are not essential in the strict sense of the term under penalty of imprisonment (sections 29 and 30, read together with section 72 of Act No. 2822).
59. - Prohibition of the right to strike for employees of the Central Bank of the Turkish Republic (section 32, paragraph 3, of Act No. 1211).
60. - Prohibition of strikes in the event of declaration of martial law or a state of emergency (Act No. 1402).
61. - Imposition of compulsory arbitration by the Supreme Court of Arbitration in the event of prohibition or suspension of a strike in order to resolve collective disputes (article 54 of the Constitution).
62. - Imposition of compulsory arbitration to bring to an end a strike, accompanied by penalties of imprisonment of up to six months for strikers who continue to strike (article 54 of the Constitution and sections 33 and 75 of Act No. 2822).
63. - Unwieldy procedure for initiating the strike (notarial act for submitting the advance notice to strike, and commencement of the strike only 60 days after the other party has been notified) (section 37 of Act No. 2822).
64. - Six days' advance notice for initiating the strike, which allows employers in small undertakings to engage in unfair practices, including the dismissal of future strikers and their replacement by other workers or the removal of machines.
65. - Compulsory requirement that workers leave the establishment at the start of the strike (section 38 of Act No. 2822) under penalty of between one month and one year of imprisonment (section 201 of Act No. 765 under the Penal Code).
66. - Prohibition of the payment of wages and social benefits during the strike and prohibition on the inclusion of clauses to the contrary in collective agreements (section 42 of Act No. 2822).
67. - Prohibition of striking workers blocking the establishment's access or exit routes and congregating in groups in front of the establishment or around it (section 38 of Act No. 2822).
68. - Limiting the number of strike pickets to four, prohibiting obstruction of entrances and exits and propaganda-making through the exhibition of posters, signs or slogans, other than the statement "workers on strike in the establishment", or protection of strike pickets under a shelter, a hut or a tent under penalty of between one and six months' imprisonment (sections 48 and 79 of Act No. 2822).
69. - Possibility for the employer to dismiss strikers without advance warning or indemnity, and financial responsibility of trade unions in the event of unlawful strikes (section 45 of Act No. 2822).
70. - Financial responsibility of trade unions in the event of material damage caused in the establishment during a strike due to the deliberate action or negligence of the workers or the trade union during the strike (article 54 of the Constitution and section 47 of the Act No. 2802).
71. - Suspension of the strike on the decision of the courts if the right to strike is exercised in a dishonest manner or in such a way as to prejudice society or the wealth of the nation (section 47 of Act No. 2822).
72. - Decision of the courts to terminate a strike when three-quarters of the members of the establishments affected by the strike withdraw from the trade union that declared the strike.
73. - Increasing sanctions against the strikers by at least one-third and at most one-half in the event of repeated offences (section 81 of Act No. 2822).
74. 18. Allegation concerning the suspension of organizations by administrative decision:
75. - In the event of the proclamation of martial law or a state of emergency, the administrative and military authorities may suspend trade union activities.
76. 19. Allegation concerning the right of organizations to form federations and affiliate with international organizations:
77. - Ban on the constitution of federations and local committees.
78. - Obstacles placed on affiliating with international organizations (section 28 of the Act on trade unions stipulating the presentation of the constitution of the international organization of which the trade unions wish to become members three months prior to the application for membership).
79. - Need to obtain advance approval from the Council of Ministers for the creation of international organizations (section 1 of Act No. 3335 of 26 March 1987) and for the receipt of financial assistance from an international organization (section 40 of the Act on trade unions) under penalty of imprisonment for three to six months for the beneficiary trade union and imprisonment for six months to two years or a fine amounting to twice the assistance received for the trade union officers (sections 56 and 59, paragraph 7, of the Act on trade unions).
80. 20. Allegation concerning restrictions on international contacts:
81. - Need to obtain authorization from the Ministry of the Interior for Turkish trade union officers to be able to travel abroad and for foreign trade union officers to visit Turkey, under penalty of three to six months in prison (sections 43 and 82 of Act No. 2908 on associations).
82. 21. DISK s complaint refers to de jure and de facto restrictions on the application of Conventions Nos. 87, 98 and 151.
83. 22. As concerns the legal factors, in its initial complaint, DISK alleges that restrictions on freedom of association are laid down in the Constitution.
84. - Article 51 of the Constitution prohibits membership of more than one trade union at a time and stipulates ten years of activity in the branch before becoming eligible to hold an office in a trade union or confederation.
85. - Article 52 prohibits trade unions from becoming involved in any political activity.
86. 23. DISK also explains that restrictions are imposed by Act No. 2821 on trade unions:
87. (a) section 3: limitation on the establishment of trade unions at the industry level by branch of activity;
88. (b) section 5: requirement of Turkish nationality, and penal disqualification for political offences;
89. (c) section 7: stipulation of items which have to appear in the organization s constitution;
90. (d) sections 9 to 19: specification of the rules with which trade unions and confederations must comply;
91. (e) section 21: prohibition of trade union membership for persons teaching in private teaching establishments;
92. (f) sections 22 and 25: stipulation of the presence of a notary to certify a member joining or withdrawing from a trade union, with the withdrawal taking effect only at the end of three months;
93. (g) section 23: limitation of the right of trade unions and confederations to freely set the amount of their dues;
94. (h) section 28: stipulation of state control and prior authorization for joining international workers and employers organizations;
95. (i) section 29: absence of specific protection of job security for some workers representatives (members of the disciplinary council, accounts auditing council, voluntary trade union officials);
96. (j) section 31: although this section prohibits discrimination on the grounds of trade union activity, it makes provision only for compensation for workers who have been dismissed and not for reinstatement in their jobs to implement a court decision. Thus, since 1992, when DISK recommenced its activities, 20,000 workers have been dismissed on grounds of discrimination related to freedom of association. DISK calls for Turkey to adopt legal measures similar to those laid down in Convention No. 158 that the country has just ratified;
97. (k) section 34: limitation on the number of trade union delegates who may be elected;
98. (l) section 35: limitation on the functions of trade union delegates (they cannot carry out their functions without hampering their own work and without breaching labour discipline in the establishment);
99. (m) section 37: banning of trade unions and confederations from political activities;
100. (n) section 39: banning of trade unions and confederations from organizing meetings and demonstrations outside their area of competence;
101. (o) sections 40 to 45: compulsory requirement for trade unions to deposit their assets in the state banks and banning them from assisting their members;
102. (p) section 47: state administrative and financial control of trade unions and confederations;
103. (q) sections 54 to 59: dissolution by court order and replacement of management committees by official receivers, and penal sanctions in the case of infractions by the trade unions and their officers (section 59 specifies up to three years in prison in certain cases). Trade unions and federations may be banned for the following reasons:
104. - non-conformity of their constitutions and other documents;
105. - assistance received in an unlawful manner;
106. - political activity in relation with a political party;
107. - maintaining in office persons who have been sentenced for offences which are impediments to their election as trade union officers;
108. - affiliating with international organizations without authorization;
109. - financial assistance or support from political parties;
110. - political activity together with professional associations or foundations.
111. 24. DISK also refers to restrictions imposed under Act No. 2908 on associations:
112. - Sections 43, 44, 67, 68 and 90 of the Act prohibit associations from activities other than those contained in their statutes and their officers from taking part in marches and demonstrations which are not in line with the objectives of the association, stipulate that prior authorization be obtained for contacts abroad and that associations must deposit with the governor of the province, 24 hours in advance, the text of any declarations that they will be making, impose the presence of government commissioners at general assemblies or congresses, allow the authorities to make audiovisual recordings and take photographs during the meetings, and stipulate that prior authorization must be obtained from the governor of the town in order to open premises for an association.
113. 25. According to DISK, restrictions are also imposed under Act No. 2495:
114. - Sections 21 and 22 of the Act prohibit security personnel from joining a trade union.
115. 26. DISK alleges that the Constitution also imposes restrictions on collective bargaining and the right to strike.
116. - Article 53 grants the right to collective bargaining only to workers and employers, and permits the conclusion of only one collective agreement for a given workplace.
117. - Article 54 bans political strikes, sympathy strikes and general strikes.
118. 27. DISK also alleges the existence of restrictions resulting from Act No. 2822 on collective agreements, strikes and lockouts, and in particular:
119. - section 3 imposes a collective agreement for a specified period in an establishment;
120. - section 12 imposes the criteria of 10 per cent of the workers in the branch and 50 per cent of the workers in the establishment for collective bargaining purposes;
121. - section 32 grants excessively broad powers to the authorities to refer matters to the Supreme Court of Arbitration;
122. - sections 33 and 34 grant the Council of Ministers the power to suspend a strike for 60 days if it is likely to prejudice public health and national security, as well as in the event of continuing disagreement between the parties at the end of the 60-day suspension period;
123. - sections 25, 29, 37, 38 and 48 contain numerous restrictions on the right to strike and on strike pickets;
124. - sections 71 to 73 stipulate heavy penal sanctions for offenders.
125. 28. Finally DISK criticizes the banning of strikes for ten years in export processing zones, specified under Act No. 3218.
126. 29. Moreover, the initial complaint by DISK also covers a number of factual situations which corroborate its statements on the violation of freedom of association.
127. 30. DISK insists on the fact that the requirement to group together 10 per cent of the workers in a specific branch, as stipulated in section 12 of Act No. 2822, severely impedes the process of collective bargaining. In actual fact, DISK explains, although section 12 stipulates that trade union confederations may contest the accuracy of the statistics published by the Ministry of Labour each year for determining the 10 per cent rate of workers employed in a branch of activity before the Ankara Labour Tribunal which is required to announce its decision within 15 days, since 1991, when DISK relaunched its activities (after having been disbanded for a period of 11 years following the military coup of 12 September 1980), the tribunal has still not rendered its verdict. This legal battle, which has lasted some two to three years, has had the result of blocking the collective bargaining system of a large number of undertakings.
128. 31. The same applies to the workers in Gida Is (Food Workers Union) in which the three member trade unions (i.e. Gida Is affiliated to DISK, Tek Gida Is affiliated to TURK-IS and Os Gida Is affiliated to HAK IS), have taken legal action against the statistics issued by the Ministry of Labour but the tribunal has not yet reached its decision; 7,524 members of Gida Is, in 107 undertakings, are currently deprived of the right of inclusion in a collective agreement. Similar situations have occurred in the case of Genel Is (Union of Public Employees) thus delaying the process of collective bargaining for 200,000 employees, for Teksil Is (Textile Union) with 9,833 members of DISK, for Sosyal Is (Office and Trade Workers' Trade Union) with 4,610 members of DISK and 11,942 members of TURK-IS, for Dev-Saglik Is (Revolutionary Health Workers Union) with 10,000 workers, for Tumka Is (Paper Processing Workers Trade Union) with 300 workers, for Deri Is (Leather Workers Trade Union), Basin Is (Publishing Workers Trade Union) and for Limiter Is (Port Workers Trade Union), where the tribunal estimates that the organization affiliated to DISK does not group together 10 per cent of the workers in the branch of activity and has, therefore, been denied the right to bargain collectively.
129. 32. DISK also raises the question of the violation of trade union rights resulting from the lack of protection in job security. It regrets that the law places the burden of proof in cases of anti-union discrimination on the employees in view of the fact that the other workers hesitate to testify for fear of reprisals.
130. 33. DISK cites several examples of dismissals and prejudicial measures to which workers have been subject for their trade union activities, and in particular the cases of:
131. - Genel Is, in which 5,500 municipal employees were dismissed following the municipal elections of March 1994 that were won by mayors from the political right;
132. - Teksil Is, in which 10,000 workers have been dismissed, with the employers having requested these workers to join Teksif, the trade union affiliated to TURK-IS;
133. - Gida Is, in which 7,360 workers were dismissed when this trade union was being set up;
134. - Lastik Is (Chemical Workers Union), in which 618 workers were dismissed for similar reasons;
135. - Dev Maden Sen (Miners Union), in which 43 workers were dismissed;
136. - Oley Is (Hotel and Restaurant Workers Trade Union), in which workers drew up a petition on the same matter;
137. - Dev-Saglik Is, in which 192 workers have been dismissed; and
138. - Bank Sen (Bank and Insurance Workers Trade Union), in which 200 workers at Garanti Bank Inc. were dismissed for having refused to resign from Bank Sen and join Banksis, as demanded by their employer.
139. 34. DISK also refers to interference by the authorities in the establishment of trade unions and confederations.
140. - In Bank Sen and Dev Maden Sen, the workers had elected their executive committee but the authorities took legal action against the fact that one had elected only five alternates instead of seven and that the other had elected trade union executives who had not been employed in the profession for ten years.
141. 35. Similarly the authorities complained about certain items in the constitution that DISK had approved at its extraordinary congress of December 1991, and requested that these items be eliminated on the occasion of the first ordinary congress.
142. 36. The text indicates the items that were criticized in article 15 of the DISK constitution:
143. - First, the word "Turkey" which appears in the name of the Confederation of Progressive Trade Unions of Turkey (DISK) cannot, according to the authorities, be used except with government authorization;
144. - The amount of liquid funds made available to social undertakings, such as cooperatives, by the constituent trade unions or the confederation is not mentioned in the constitution.
145. - Moreover, the constitution stipulates that the decision for a constituent trade union to withdraw from the confederation must be taken by a majority of two-thirds of the congress, that the members of the Honorary Members Committee should take part in the congress, that proposals for changes in the congress agenda must be submitted for the approval of the congress plenary session, that extraordinary congresses must be held within two months of the request being made, that international organizations may provide the confederation with assistance, and that - although one of the statutory committees should, under the terms of the Act on trade unions, be called the "disciplinary committee" - the DISK constitution provides only for an honorary members' committee.
146. - Finally, the compulsory qualifications for trade union officers are not cited in the constitution.
147. 37. The Department of the Interior of the Province of Istanbul requested Bank Sen to amend the corresponding items in its constitution on the occasion of its first congress; the Ministry of Labour and Social Security has even taken legal proceedings against Bank Sen before the fourth chamber of the Istanbul Labour Tribunal to put a halt to its activities. Similar action has been taken against Sine Sen.
148. 38. Other government interference has been occasioned by the reiteration by the authorities (the Department of the Interior of the Province of Istanbul) that it is necessary to submit to the authorities 30 days in advance the names and documents of trade union representatives being sent abroad, or representatives from other countries being received in Turkey, under penalty of prosecution.
149. 39. In a subsequent communication dated 2 June 1995, DISK takes note of the positive legislative changes to the Act on trade unions that were made in April 1995, but considers that these amendments are not sufficient. It points out, in addition, that Act No. 2822 on collective agreements, strikes and lockouts has still not been amended.
150. B. The Government s reply
151. 40. In its reply of 15 September 1995, the Government points out that various provisions of the Constitution have been amended together with a certain number of the provisions of the Act on trade unions.
152. 41. Questions concerning the Constitution of the Republic of Turkey: Act No. 4121 amending the Constitution has been published in the Official Gazette of 26 July 1995.
153. - In the Preamble of the Constitution, as amended, the paragraphs praising the military intervention of 1 September 1980 have been repealed.
154. - In article 33, the means of taking legal action against trade union activities have been reduced, paragraphs 4 and 5 banning trade unions from having political activities and links with political parties have been repealed.
155. - Article 52 banning trade unions from all political activity has been repealed; trade unions may engage in political activities and the restrictive provisions concerning the trade unions' funds and expenditures have been eliminated.
156. - Under article 53, public servants have been granted the right to join trade unions, and the public servants' trade unions have been accorded the right to bargain collectively. A special law will regulate procedures in this matter.
157. - In article 69, the amendments that have been introduced lift the bans preventing political parties from having any political or cooperative link with the trade unions.
158. - In article 135, the amendments that have been made allow trade unions to deal with political matters.
159. - In article 171, the last paragraph which banned cooperatives from all political activity has been deleted.
160. 42. Questions concerning Act No. 1475 on labour affairs and Act No. 2822 on collective agreements, strikes and lockouts: The Bills aimed at aligning these two texts with the requirements of Conventions Nos. 87, 151 and 158, recently ratified by Turkey, have been put before the Turkish National Grand Assembly and are the subject of debate before the parliamentary commissions.
161. 43. Questions concerning Act No. 2821 on trade unions:
162. - Allegation concerning section 3 (trade unions and employers associations). Subsequent to the ratification of Conventions Nos. 87 and 151, the Bill on public service trade unions is currently being drafted. As soon as it has been adopted, public servants will enjoy trade union rights. According to the Government, the ban on occupational or enterprise trade unions contained in section 3 results from the fact that, on this basis, the branch trade unions better serve the interests of their members under national circumstances by allowing the creation of stronger trade unions.
163. - Allegation concerning section 5 (conditions required for founder members). Act No. 4101 of 4 April 1995 amending Act No. 2821 on trade unions entered into effect on 8 April 1995. The Government explains that it has amended section 5 by repealing, in particular, the last paragraph of this section which referred to penal disqualifications resulting from sentences for offences against sections 68 to 79 of the Act on collective agreements, strikes and lockouts. Consequently, the limitations imposed on individual trade union rights on grounds of sentences for offences relating to trade union activities are no longer in effect.
164. - Allegation concerning section 7 (constitutions of trade unions and confederations). This section contains information as to the clauses that are to be included in the constitutions of trade unions; it is not at all intended to restrict freedom in the exercise of trade union rights.
165. - Allegation concerning sections 9 to 19 (these sections deal with the statutory bodies, the organizations and their functions and the procedures for the election of their representatives). It was section 9 in particular which was the subject of criticism since it limited the number of times that a person could be elected to a trade union office. Act No. 4101 has repealed this provision together with the subsequent paragraph (under the terms of which the functions of trade union officers are automatically terminated when they accept functions in the management or in the auditing committees of enterprises or public establishments). The other sections are intended to ensure the smooth operation of the system of industrial relations and apply equally to employers' organizations.
166. - Allegation concerning section 21 (ban on membership). Act No. 4101 repeals paragraphs 2 and 5 of this section. Consequently, teachers now enjoy trade union rights.
167. - Allegation concerning section 22 (acquisition of membership). This section bans membership in more than one trade union. This section is intended to strengthen the trade union movement by preventing the proliferation of rival trade unions to the detriment of workers.
168. - Allegation concerning section 23 (dues). The provision in this section, which limits the amount of monthly dues paid by workers to one day s basic wage, is applicable only to first-level organizations and not to higher-level organizations. According to the Government, it is in line with national circumstances, and is designed to protect workers.
169. - Allegation concerning section 25 (cessation of membership). Act No. 4101 has amended the second paragraph of section 25 (concerning advance notice of withdrawal in the presence of a notary and the three-month waiting period for withdrawal from a trade union). Leaving one trade union and joining a new one now becomes effective after 30 days. The last paragraph of section 25 which compels leavers to lose their membership and withdraw from any trade union office has also been amended.
170. - Allegation concerning section 28 (affiliating with international workers' and employers' organizations). Act No. 4101 has amended this section so as to suppress the requirement of advance authorization from the Government which now has only the power to open legal proceedings to obtain cancellation of membership of an international organization if this organization does not have certain characteristics.
171. - Allegation concerning section 29 (protection of officers of trade unions and confederations). The Act does not stipulate cessation of employment on election to a trade union office. To permit the strengthening of the trade union movement, the law guarantees the president and the members of the trade unions' managing committee the right to be re-engaged so that they can devote themselves full time to their functions. The other trade union officers may retain their employment whilst they are in office since they do not exercise these offices full time. In contrast, however, the law does not prevent a trade union from negotiating, in its collective agreements, protection of this type for the other trade union officers.
172. - Allegation concerning section 31 (protection of membership). The Act on trade unions bans any form of discrimination on the grounds of trade union membership and stipulates a fine for the offenders and compensation of the victims. The Labour Act will be amended to bring it in line with Convention No. 158 which will enter into effect in January 1996. It will then provide for reinstatement.
173. - Allegation concerning section 34 (appointment of trade union delegates and conditions applicable to them). Section 30 of the Act guarantees the protection of trade union delegates in line with Conventions Nos. 87 and 135. Section 34 attempts to reconcile the needs of workers with the requirements of the undertaking and to guarantee the qualifications of trade union officers.
174. - Allegation concerning section 35 (office of trade union delegate). The same reasoning applies here: the law sets out the rights and the responsibilities of the parties so as to guarantee social peace at the workplace.
175. - Allegation concerning section 39 (banning of certain meetings). Act No. 4101 repeals the last paragraph of this section. Consequently, it is no longer prohibited for trade unions and confederations to organize meetings and demonstrations outside the field of their objectives or their competence.
176. - Allegation concerning sections 40 to 45, 47 and 49 to 51 (income and expenditure of trade unions and confederations). These sections stipulate certain obligations for trade unions and employers' associations; however, their aim is to allow these organizations to better serve their members and not to interfere in the exercise of trade union rights. Section 44 has, however, been amended by Act No. 4101 to allow trade unions to introduce technical and professional training facilities for their members. Similarly, section 48 has been amended to suppress the supremacy of confederations over their member trade unions.
177. - Allegation concerning sections 54 to 59 (penalties). Act No. 4101 repeals the second and third paragraphs of section 58. In this way the dissolution of a trade union because its officers have been sentenced under certain sections of the Turkish Penal Code or for offences relating to the legislation on industrial relations is no longer possible.
178. 44. Questions concerning other laws: When the constitutional amendments have been introduced into Act No. 1475 on labour affairs and into Act No. 2822 on collective agreements, strikes and lockouts, and when the Bill on the trade union rights of public servants has been adopted, the provisions contrary to these amendments contained in Act No. 765 laying down the Penal Code, Act No. 657 on public servants and the Act on the establishment and broadcasting of radio and television stations, together with any other act or decree still in effect, will either be considered null and void, or repealed.
179. 45. The Government adds that, when the draft legislation currently being prepared has been adopted, it will provide information as to the impact of the modifications on the legislation currently in effect.
180. 46. The Government also points out that, in order to adopt the necessary amendments in Act No. 2821 on trade unions, in line with the constitutional amendments that have been promulgated, a Commission was set up on 8 August 1995 and that it will continue its work in this respect.
181. 47. In a subsequent communication dated 8 January 1996, the Government points out that the ban on strikes and lockouts, contained in section 22 of Act No. 3308 of 5 June 1986, applied only to students in vocational colleges who are pursuing vocational training courses in these establishments. As far as the first transitory section of Act No. 3218, dated 15 June 1985, on export processing zones is concerned, it is specified that the sections on strikes and lockouts contained in Act No. 2822 on collective agreements, strikes and lockouts are not applicable in export processing zones for a period of ten years and that any conflicts of interest which may arise during this period will be settled by the Supreme Council of Arbitration.
182. 48. Moreover, the Government confirms that DISK and its member trade unions had been dissolved by legal action up until 16 July 1991, on which date these organizations recovered the right to organize workers. Previously, DISK and its member unions did not have the right to carry out trade union activities, including bargaining collectively. The conditions governing the recognition of trade unions as negotiating agents are contained in section 12 of Act No. 2822 and trade unions which fulfil these conditions may have legal recourse if they are not authorized to bargain in the name of their own members.
183. 49. The Government specifies that the right to set up trade unions is guaranteed by the Constitution and by section 31 of Act No. 2821 for anybody with a contract of employment, and by section 59 of this same Act which punishes with a fine any violation of these rights. Consequently, reprisal measures against workers for trade union activities are a matter for the courts which have the task of taking decisions and curbing offences in this matter. Trade unions which allege anti-union measures must first bring their case before the national courts to have justice done.
184. 50. Finally, as far as the closure of TUMHABER-SEN is concerned, the Government indicates that this was ordered following a decision of the court of appeal which had confirmed the decision of the lower jurisdiction on the basis of the fact that the law granting this association legal personality does not yet exist. On this item, the Government draws attention to the remarks it made under Conventions Nos. 87 and 151 in its first detailed reports on the application of these recently ratified Conventions, in which it explained that the conversion of the said Conventions into national law had not yet been carried out.
185. C. The Committee s conclusions
186. 51. The Committee notes the detailed allegations presented by the two Turkish trade unions TURK-IS and DISK concerning the severe shortcomings in freedom of association and freedom of collective bargaining. The Committee also takes note of the detailed comments and observations submitted by the Government on these two complaints, together with the constitutional and legislative amendments that have occurred in the country since these complaints were introduced.
187. 52. Referring to the recommendations it had made over a number of years in a very large number of cases, and in particular, in Cases Nos. 631, 997, 999 and 1029, 1582, 1583 and 1697 concerning serious violations of freedom of association contained in the Constitution and national legislation, the Committee notes with interest the amendments that have been made in terms of Acts No. 4101 of 4 April 1995 amending the Act on trade unions of 1983, and Act No. 4121 of 23 July 1995 amending the Constitution.
188. 53. The Committee observes in particular that, as a result of these amendments, the ban on all political activity on the part of the trade unions and all links with the political parties has now been raised (repeal or amendment of articles 52, 59, 135 and 171 of the Constitution). The Committee notes that the Government has undertaken to amend the provisions of the Act on trade unions in conformity with these constitutional amendments and that a Commission was set up for this purpose on 8 August 1995. The Committee expresses the firm hope that all the legislative provisions contained in the Act on trade unions, in the Act on associations, in the Act on the establishment and broadcasting of radio and television stations, in the Penal Code, in the Act on collective agreements, strikes and lockouts and in all other acts containing aspects relating to this ban will be repealed or amended to ensure complete conformity of the legislation with the constitutional provisions and the principles of freedom of association.
189. 54. The Committee also observes that the Act amending the Constitution has recognized the right of public servants to join a trade union and bargain collectively (article 53). The Committee notes that article 53 lays down that the points of agreement and disagreement signed by the parties shall be placed before the Council of Ministers and that special legislation will govern this matter. The Committee, taking note of the Government's statement that draft legislation is currently being debated before Parliament, expresses the firm hope that the draft legislation on public servants trade unions will be adopted in the near future and that it will be fully in line with the requirements of ILO Conventions Nos. 87, 98 and 151. The Committee insists, in particular, on the need to ensure that all persons employed by the public authorities, whether they are public servants of the State or the municipalities, or tenured public agents or contract employees in state service, benefit from the guarantees provided for in these Conventions. It also insists on the need to adopt, for settling labour disputes in the public service, a mechanism for determining conditions of employment by means of bargaining between the parties and by means of a procedure which gives guarantees of independence and impartiality such as mediation, conciliation or arbitration, implemented in such a manner as to inspire confidence among the parties involved.
190. 55. The Committee observes that Act No. 4101 amending the Act on trade unions has removed many restrictions which were contrary to Articles 2, 3 and 5 of Convention No. 87:
191. - the penal disqualifications under the Penal Code and breaches of the Act on collective agreements, strikes and lockouts have been removed;
192. - the banning of trade union membership for inspectors, auditors and members of management and other committees and for private-sector teaching staff has been suppressed (sections 5 and 21 of the Act on trade unions in its amended version);
193. - the limitation on eligibility for election as a trade union officer for more than four successive union mandates has been repealed (section 9 as amended);
194. - the right of workers to withdraw from a trade union now takes effect after 30 days and not after three months as before;
195. - retired persons may continue to be members of and fill offices in the statutory bodies of a trade union (section 25 as amended);
196. - advance approval by the Government for affiliating with international organizations is no longer necessary, and the Government has kept only the right to take legal action to cancel a membership which does not match certain characteristics (section 28 as amended);
197. - the ban on confederations, trade unions and their sections from organizing meetings and demonstrations outside the field of their objectives and competence has been repealed (section 39 as amended);
198. - trade unions and confederations may freely decide their expenditure on the technical and vocational education facilities which they wish to grant their members (section 44 as amended);
199. - the supremacy of confederations over trade unions has been repealed;
200. - and, above all, the possibility of dissolving a trade union or confederation on the grounds of a breach of the Penal Code or the Act on collective agreements, strikes and lockouts that might have been committed by trade union officers, has been repealed (section 58 as amended).
201. 56. The Committee does, however, note with deep regret that, despite the repeated assurances given by the Government in the context of numerous cases concerning Turkey which the Committee has examined, certain legislative provisions continue to violate rights guaranteed by Conventions Nos. 87 and 98, and that national practice is far from meeting Turkey's international undertakings. The Committee requests the Government to intensify its efforts in taking urgent measures to remedy this situation.
202. 57. Maintenance of the ban on setting up a trade union on the basis of occupation or place of work (section 3 of the Act on trade unions), and maintenance of the dual criteria for bargaining collectively (section 12 of the Act on collective bargaining, strikes and lockouts). The Committee notes that the Government merely declares that this better serves the interests of the workers and makes it possible to strengthen the trade unions. The Committee observes that the branch trade unions may set up as many local sections as they wish at the regional or local level; however, it considers that the legislation does not have the effect of promoting and stimulating unhindered collective bargaining at the level of the undertaking. In fact, since these are enterprise collective agreements, the legislation stipulates that the establishments are considered as making up a single unit for the purpose of calculating the majority of over 50 per cent of workers for bargaining collectively. Moreover, the agreements can be signed only with trade unions which represent 10 per cent of the branch and 50 per cent of the workers in the undertaking (section 12). In view of the numerous and serious specific allegations presented by DISK, which relate to a large number of sectors of economic activity in which workers are not covered by a collective agreement due to the disputes over the question of trade union representativity, the Committee strongly urges the Government to amend its legislation so as to bring it in line with the requirements of Conventions Nos. 87 (Article 2) and 98 (Article 4).
203. 58. Maintenance of the ban on belonging to more than one trade union (section 22 of the Act on trade unions). The Committee notes that the Government merely indicates that this prohibition aims at avoiding proliferation of rival trade unions. The Committee nevertheless considers that, if workers are employed in several occupational activities, they should be able to join the trade union of their choice covering these diverse activities.
204. 59. Maintenance of the limit on the amount of trade union dues (section 23). The Committee notes that the Government merely points out that this measure aims to protect the workers. The Committee considers that it should be up to the constitutions of the trade unions to make a decision in this matter.
205. 60. Maintenance of the requirement of ten years of effective service in the branch applicable to candidates for trade union elections (section 14). The Committee regrets that the Government has not provided information on the measures it plans to take in this respect. The Committee draws attention to the importance it attaches to the principles under which workers' and employers' organizations have the right to freely elect their representatives. Noting the specific allegations submitted by DISK in this respect, the Committee expresses the firm hope that this provision, which is extremely prejudicial to the interests of the trade unions, will be raised in the near future.
206. 61. Banning of political strikes, sympathy strikes and strikes which are prejudicial to society or destroy national wealth, excessive limitation on strike pickets together with extremely heavy penalties of imprisonment for the trade unions (article 53 of the Constitution and sections 25 and 47, 70, 72, 73 and 79 of the Act on collective agreements, strikes and lockouts). The Committee concludes that the excessive restrictions on the right to strike imposed on workers constitute a serious violation of the principles of freedom of association. It considers that these limitations would be justifiable only if the strike were to lose its peaceful character. In any case, the general banning of sympathy strikes is abusive, and workers should be able to carry out such actions provided the initial strike that they are supporting is legal. Only the banning of political strikes may be considered acceptable since purely political strikes do not fall within the scope of the principles of freedom of association. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 481.)
207. 62. Maintenance of the ban on strikes beyond essential services in the strict sense of the term (sections 29 and 30 of Act No. 2822), compulsory arbitration and 60 days' waiting clauses accompanied by penalties of imprisonment for offenders (article 54 of the Constitution, sections 23, 37 and 75 of Act No. 2822). The Committee considers that these restrictions on the exercise of the right to strike are much too broad. It insists, in particular, that compulsory arbitration may be imposed only for essential services in the strict sense of the term, i.e. those whose interruption would be likely to endanger the life, personal safety or health of the whole or part of the population. In addition, the general ban on strikes in banks and transport is not in conformity with the principles of freedom of association, and should therefore be lifted. Furthermore, it should be possible to impose sanctions for strike action solely in cases in which the action is not in conformity with the principles of freedom of association, and such sanctions should not be disproportionate with the severity of the offence involved; and this is not the case when the strikers expose themselves to penalties of up to two years or even three years in prison.
208. 63. Severe restrictions on freedom of association resulting from the Act of 1985 on export processing zones. The Committee regrets that the Government has merely confirmed the information submitted by the complainants about this allegation. It calls attention to the importance it attaches to the respect of freedom of association throughout Turkish territory and urges the Government to remove in the near future these restrictions which are incompatible with the application of Conventions Nos. 87 and 98.
209. 64. The Committee also notes with concern that the Government limits itself to confirming that the TUMHABER-SEN trade union was dissolved by court order on the grounds that the amendment to the national legislation following ratification of Conventions Nos. 87 and 151 had not so far been carried out and that no law yet existed to grant this association legal personality. The Committee draws attention to the fact that by ratifying Conventions Nos. 87 and 151 in July 1993, the Government undertook to ensure that the acquisition of legal personality by workers' and employers' organizations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of the Conventions on freedom of association and protection of the right to organize, and this applies also to public service trade unions. The Committee strongly urges the Government to take the necessary measures to grant the TUMHABER-SEN trade union, as well as the other unions of civil servants, legal personality.
210. 65. Moreover, the Committee profoundly regrets that the Government restricts itself to pointing out that the anti-union reprisal measures are a matter for the courts. It draws attention to the fact that, in cases of dismissal of trade unionists on the grounds of their membership of or their activities in a trade union, governments have repeatedly been requested to take the necessary measures to allow trade union officers and members who have been dismissed on grounds of their legitimate trade union activities to be reinstated in their jobs and to apply the pertinent legal sanctions to the undertakings in question. In this respect, the Committee notes with interest that the Labour Act will be amended to allow reinstatement. It calls on the Government to keep it informed of developments in the situation in this respect. Furthermore, in the opinion of the Committee, governments should take the necessary measures to allow their labour inspectors to enter freely and without advance warning the establishments under their supervision, and to carry out the verification or inspections they deem necessary to ensure that the legal provisions - in the matter of anti-union discrimination in particular - are strictly observed (see Digest, op. cit., paras. 753 and 756). The Committee strongly urges the Government to take the necessary measures to guarantee workers effective protection against acts of anti-union discrimination in conformity with the international undertakings it made in ratifying Convention No. 98 in June 1970.
211. 66. Finally, in general, the Committee considers that Turkish trade union legislation is too detailed and that it covers numerous questions which should be in the competence of the constitutions of workers' and employers' organizations themselves. The Government should therefore take measures to simplify the legislation and leave greater autonomy to the trade organizations.
212. 67. Noting that the Government has declared its firm intention to continue amending its legislation to bring it in line with Conventions Nos. 87 and 151 that it has recently ratified, the Committee expresses the firm hope that, in consultation with the social partners, it will be able to bring the whole of its legislation and its practice into accord with the principles of freedom of association. The Committee suggests to the Government that it make use of ILO technical assistance to resolve the legislative problems raised in the complaints.
213. 68. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of these cases in relation to Conventions Nos. 87, 98 and 151.
214. The Committee s recommendations
215. 69. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
216. (a) The Committee, noting with interest the constitutional and legislative progress that has taken place in Turkey, invites the Government, in consultation with the social partners, to continue amending its legislation by taking measures to simplify it and to afford greater autonomy to the trade organizations so as to bring this legislation fully into line with the requirements of Conventions Nos. 87, 98 and 151 ratified by Turkey.
217. (b) The Committee calls on the Government to take the necessary measures to grant legal personality to the public servants' organizations to which it is denied, and in particular to TUMHABER-SEN, in accordance with the requirements of Conventions Nos. 87 and 151 ratified by Turkey.
218. (c) The Committee notes with interest that, according to the Government, the Labour Act will be amended to allow reinstatement of workers in their jobs and to ensure the protection of workers against all acts of anti-union discrimination (including dismissal) in accordance with Convention No. 98. The Committee calls on the Government to keep it informed of the development of the situation in this respect.
219. (d) The Committee suggests that the Government call on the technical assistance of the ILO to resolve the legislative problems raised in the complaints.
220. (e) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of these cases with respect to Conventions Nos. 87, 98 and 151.