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

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The Committee notes the observations of the Confederation of Turkish Trade Unions (TÜRK-İŞ), Public Employees Unions Confederation of Turkey (KAMU-SEN), and the Turkish Confederation of Employers’ Associations (TISK) communicated with the Government’s report. The Committee also notes the observations of the Health Services Union (SAHİM-SEN) received on 4 February 2023 and the Government reply thereto, as well as the observations of the Confederation of Progressive Trade Unions of Turkey (DISK), the International Trade Union Confederation (ITUC), and the Confederation of Public Employees’ Trade Unions (KESK), received on 30 August, and 1 September 2023 which concern issues examined in this comment.

Articles 1–6 of the Convention. The personal scope of the Convention. Prison staff. In its previous comments, the Committee had repeatedly requested the Government to take the necessary measures to guarantee that the prison staff can be effectively represented by the organizations of their own choosing in collective bargaining. The Committee notes that the Government once again indicates in this respect that the prison staff are covered by the collective agreements concluded in the public service but are prohibited from establishing or joining unions, because of the exceptional importance of impartial and unbiased delivery of the public services they must deliver. Noting the Government’s indications, the Committee regrets the lack of progress in this respect and recalls that under the terms of the Convention, prison staff have the right of collective bargaining, which includes the right to be represented in negotiations by the organization of their choosing. The Committee therefore once again urges the Government to take the necessary measures, including through revising section 15 of Act No. 4688, to guarantee that the prison staff can be effectively represented by the organizations of their own choosing in collective bargaining.

Locum workers and public servants working without a written contract. In its previous comment, the Committee had requested the Government to ensure that locum workers, who include teachers, nurses and midwives, as well as public servants without a written contract, can exercise the rights enshrined in the Convention. The Committee notes that the Government once again indicates that these workers cannot join the unions established under Act No. 4688, because they are not employed in any cadre or position as required by section 3 of the law. The Committee regrets the lack of progress in this respect and recalls that all public sector workers, except members of the armed forces and the police and public servants engaged in the administration of the State are entitled to the rights enshrined in the Convention, including the right to collective bargaining, regardless of their contractual situation. The prerequisite to this right is their ability to join or establish organizations that would have the right to negotiate with the public employer with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee notes that according to the Government there is no such possibility under the current Act No. 4688 and therefore these workers are deprived of their rights under the Convention. Therefore, the Committee once again requests the Government to take appropriate measures to ensure that these categories of workers can exercise their right to organize and collective bargaining, either by amending the law so as to allow them to join organizations formed under Act No. 4688, or by providing a framework within which they can create their own organizations.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. In its previous comment, the Committee had requested the Government to provide information on how the evidence was examined and the burden of proof applied in cases concerning trade unionists before the Commission of Inquiry on the State of Emergency Measures established to assess the applications concerning dismissal from public service, annulment of the ranks of retired personnel and closure of institutions and organizations carried out pursuant to the State of Emergency Decree-Laws following the 2016 coup attempt. It had also requested detailed and specific information on the number and outcome of applications concerning trade union members and officers before the Inquiry Commission, as well as the number and outcome of appeals against negative decisions on those applications. The Committee notes the Government’s indication that the Commission of Inquiry reached the end of its term of office on 22 January 2023. The Government indicates that the Commission rendered a total of 127,292 decisions (including 17,960 acceptance decisions and 109,332 rejection decisions) in respect of all the applications during the five-year period of its mandate. For each case, the Commission focused on determining whether the individuals had acted in line with the order and instructions of the FETÖ terrorist organization. The reasons for dismissal and the data gathered were assessed with due diligence having regard to the submissions in the petitions of application. The information and documents used during these examinations were obtained from the main database and following their analysis, the results were reflected in the decisions of the Commission. The data examined to decide on applications concerned: usership of intra-organizational communication software used by the terrorist organization, account activities in the Bank Asya with a view to providing support following the instruction of the leader of the organization, membership and leadership of the trade unions associated with the terrorist organization in line with the instruction of the organization, connection with the associations, foundations and media outlets shut down for their association and connection with the terrorist organization, and financial support provided to those institutions. Information concerning the administrative and judicial investigations and prosecutions were also considered. The Government indicates that dismissals form public service within the scope of the state of emergency infringements aim to terminate the existence of terrorist organizations and other structures engaged in activities against the national security within the public institutions. In this perspective, it is sufficient to establish a link between the persons concerned and terrorist organizations, structures/entities or groups determined by the National Security Council as engaging in activities against the national security of the State. The Government indicates that the individual and reasoned decisions of the Commission of Inquiry were delivered to the institutions where the persons last served, and these institutions notified the person concerned. Where the applications were accepted, the institution or the Council on Higher Education reappointed the person. The person whose applications were rejected could file an action for annulment against the institution or organization where they had last served within 60 days of the notification of the decision. The Council of Judges and Prosecutors designated nine specialized administrative courts in Ankara as competent to examine these suits. Regarding the number and outcome of applications concerning trade union members and officers before the Inquiry Commission, as well as the number and outcome of appeals, the Committee notes the Government’s indication that there is no statistical information on these numbers, but that 4 confederations, 19 federations and 19 trade unions were shut down after the courts found that they were affiliated with terrorist organizations. The Committee also notes the observations of the KESK, stating that in total, 4,267 KESK members were dismissed from all public sectors under the State Emergency Decree-Laws. According to the KESK, the dismissals were arbitrary and non-transparent, and no effective remedy was provided. Public employees were unable to see the accusations and defend themselves. The KESK alleges that the Commission of Inquiry did not provide an effective remedy against anti-union dismissals and was instead used to punish trade unionists with no due process and proper court decision. According to the KESK, before the Commission, there was no transparent mechanism allowing the public officers to challenge any of the evidence against them. The KESK finally states that now that the work of the Commission of Inquiry is completed, the dismissed KESK members and executives must apply to administrative courts, a process that may take up to 10 years to come to conclusion. The Committee notes that, according to the information submitted by the Government, the Commission of Inquiry accepted 14 per cent of the applications submitted against the massive dismissals of public officials in application of the State of Emergency Decree-Laws. The Committee notes that the Commission worked with the outlook that it is sufficient to establish a link between the individual and the organizations, structures/entities or groups determined by the National Security Council in order to validate their dismissal and proceeded to verify the existence of such a link in each case based on the information in a “main database” concerning the communications, connections and interactions with specified financial and social entities. The Committee notes that although the Government indicates that regard was given to the submissions in the petitions of application, it appears from the Government report that during the examination by the Commission of Inquiry applicants had no possibility to be informed of, let alone challenge the information concerning them in the “main database” that was used as the basis for the decisions of the Commission of Inquiry. The Committee also notes that as the Government indicates, the purpose of the dismissals was to “terminate the existence of terrorist organizations and other structures engaged in activities against the national security within the public institutions” and the Commission of Inquiry focused on determining whether the dismissals were justified in view of this purpose. The Committee notes that it cannot be inferred from the information provided by the Government that in the work of the Commission of Inquiry, consideration was given and safeguards established to adequately examine allegations of anti-union discrimination. In this respect, it appears from the information received that the dismissed public officials had no opportunity to establish their claim that under the cover of national security reasons, their dismissal was indeed motivated by anti-union reasons. The Committee recalls that the KESK had stated in its 2022 observations that the applications of some of its dismissed members were still pending before the Commission, meaning that they had waited the decision of the Commission for five years, without being able to appeal to administrative courts in the meantime. The Committee also notes the observation of the KESK indicating that the proceedings before the courts may take many more years. The Committee recalls that the existence of legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. This general principle, which the Committee continually emphasizes, is based on Article 3 of the Convention, which provides that “[m]achinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined in [Articles 1 and 2]” (2012 General Survey on the fundamental Conventions, paragraph 190). Even where the law may provide adequate remedies against anti-union dismissals the slowness of procedures significantly reduces the effectiveness of protection against anti-union discrimination, as with time the circumstances change, and the available remedies may lose much of their relevance. In view of the foregoing, the Committee notes with deep concern, that the public officials who allege that their dismissals in application of the State of Emergency Decree-Laws were indeed motivated by anti-union reasons did not have access to an effective, rapid and fair procedure that would protect them against anti-union dismissals. Therefore, the Committee urges the Government, to take appropriate measures without further delay, to ensure the independent, expeditious and in-depth investigation of such allegations in the framework of effective and rapid procedures presenting all the guarantees of due process. The Committee requests the Government to provide information on any steps taken in this respect.

Continued use of state of emergency powers to dismiss union members. In its previous comment, the Committee had requested the Government to provide its comments regarding the KESK observation, indicating that despite the expiration of the state of emergency, governors and ministries continued to use the provisional section 35 of the Emergency Decree Law No. 375, dismissing 21 teacher members of EĞİTİM SEN from Diyarbakir on 29 November 2021. The Committee notes that the Government has not provided any comment in this respect. The Committee notes that the KESK again states in its 2023 observations that the Government passed Law No. 7145 on the Amendment of some Laws and Emergency Decrees, which enables governors to exercise the state of emergency powers, including dismissals. In view of the noted absence of effective and rapid remedies against state of emergency dismissals, the Committee notes with concern the information regarding the perpetuation of state of emergency powers and once again requests the Government to provide its comments in this respect.

Article 1. Adequate protection against anti-union dismissals. Private sector. In its previous comment the Committee had noted that pursuant to the current legislation: (i) judicial authorities could in no circumstances impose an order of reinstatement on the private sector employer; (ii) section 25(4) of Act No. 6356 (Law on Trade Unions and Collective Labour Agreements) fixed a minimum amount for “union compensation” in case of acts of anti-union discrimination other than dismissal, which is the worker’s annual wage, but in cases of anti-union dismissal, neither a minimum amount nor a cap was fixed in the law; the issue seemed to be left to the discretion of the judicial authority; and (iii) the Government did not refer to any other existent penalty or sanction for anti-union dismissals, and section 78 of Act No. 6356 containing penal provisions was silent about anti-union discrimination. The Committee notes the Government’s indication that the provisions of the Labour Law No. 4857 on unjustified dismissals are designed along the lines of Termination of Employment Convention, 1982 (No. 158), which similarly does not require that reinstatement be mandatory. The Government adds that in its verdict finding a dismissal invalid, the court shall also designate the amount of compensation to be paid in case the worker is not reinstated, considering the worker’s past work history, seniority and the nature of the alleged reason for dismissal. Regarding sanctions applicable to anti-union discrimination, the Government indicates that both sanctions for damages and administrative fines are provided for violation of sections 17, 19 and 25 of Act No. 6356 and that actions for reinstatement and damages to be brought against the employer in cases of anti-union discrimination in employment, working conditions and termination of the employment relationship are regulated in section 25 of Act No. 6356. Furthermore, section 118 of the Penal Code No. 5237 provides that whoever uses force or threat against a person to force them to join or not to join a union, to participate in the activities of the union or to leave their position in the union or union management, will be sentenced to imprisonment from six months to two years. The Government concludes that the legislation provides sufficient protection and deterrent sanctions against discriminatory acts, trade unionists are advised to have recourse to available administrative and judicial remedies. The Committee recalls that its comment concerned not all discriminatory acts, but anti-union dismissals specifically. It notes that the administrative fine provided in section 78(1)(c) of Act No. 6356 punishes forced enrolment of members in a trade union in violation of section 17 and forcing a person to remain a member or resign from a trade union in violation of section 19. Therefore, this sanction does not concern anti-union dismissals. The same consideration applies to section 118 of the Penal Code. Concerning the amount of compensation paid to a worker dismissed for anti-union reasons, the Committee notes that while the general rule on unjustified dismissals (section 21 of the Labour Law) provides that in case of the employer’s refusal to re-engage the worker, the employer shall pay the dismissed worker a compensation not less than 4 months’ wages and not exceeding 8 months’ wages, section 25(5) of Act No. 6356 which specifically regulates anti-union dismissals merely provides that in case of “termination of contract of employment for reasons of trade union activities”, “union compensation” shall be ordered, which cannot be cumulated with the compensation provided in section 21 of the Labour Law. In view of the foregoing, the Committee notes that the law does not contain any indication regarding the amount of “union compensation”. The Committee further notes that: (i) the legislation does not contain any administrative or penal sanction applicable in case of anti-union dismissal; (ii) the employer can legally refuse to apply a judicial order of reinstatement, rather opting for the 4–8 months’ wage compensation or “union compensation”; and (iii) the determination of the amount of “union compensation” is left to the discretion of the judge. The Committee once again recalls in this respect, that it has always considered that reinstatement should at least be included among the range of measures that can be ordered by the judicial authorities in the event of anti-union discrimination; and that the effectiveness of legal provisions prohibiting acts of anti-union discrimination depends also on the sanctions provided, which should be effective and sufficiently dissuasive; and that the purpose of compensation must be to compensate fully, both in financial and occupational terms, the prejudice suffered. The Committee further recalls the recommendations formulated in this regard by the Committee on Freedom of Association in Case No. 3410. The Committee therefore urges the Government, in full consultation with the social partners, to take appropriate measures to adopt effective and sufficiently dissuasive sanctions against anti-union dismissals in the private sector. The Committee further requests the Government to collect and provide information regarding the judicial practice in the determination of amount of compensation awarded to workers dismissed for anti-union reasons. Finally, the Committee requests the Government to provide its comments regarding the observation of the ITUC alleging the summary dismissal of 180 workers, all members of the Turkish Wood and Paper Industry Workers’ Union (AGAC-IS), after a court ordered the company to start negotiations with the union in June 2022.

Anti-union discrimination in the public sector. In its previous comment, the Committee had requested the Government to indicate whether the law allows sanctioning those responsible for anti-union discrimination in the public sector and whether compensation can be awarded to victims. The Committee notes the Government’s indication that section 18 of Act No. 4688 prohibits anti-union discrimination including transfers and dismissals, furthermore, section 38/b of the same Act provides that violation of sections 8, 14, 16 and 17 of the Act shall be punished by a punitive fine. The Government also once again refers to section 118 of the Penal Code, indicating that it is applicable also to the public sector unions. Recalling that Article 1 of the Convention requires adequate protection against acts of anti-union discrimination “in respect of employment”, the Committee notes that the fine provided in section 38/b of Act No. 4688 does not appear applicable to acts of anti-union discrimination in respect of employment, as it does not cover violations of section 18 of the Act which prohibits such acts. Furthermore, as noted above, the same consideration applies to section 118 of the Penal Code. The Committee further notes that the Government does not indicate other legal provisions allowing the awarding of compensation to public sector workers subjected to anti-union discrimination. The Committee is therefore bound to note that the legislation does not provide for compensation for victims of anti-union discrimination (including dismissals), or for any sanctions against those responsible for anti-union discrimination. Therefore, the Committee urges the Government, in full consultation with the social partners, to take appropriate measures to ensure that the provision is made in the legislation for an adequate protection against anti-union discrimination in the public sector, by providing for full compensation of the prejudice suffered in both occupational and financial terms and by providing for effective and sufficiently dissuasive sanctions. The Committee requests the Government to provide information on any steps taken in this respect and to provide its comments regarding the observations of the KESK, alleging the anti-union transfer of 10 members of its affiliates.

Collection of data on anti-union discrimination in private and public sectors. The Committee recalls that following up on the June 2013 recommendations of the 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 the Government’s indication that considering the court processes and the duration of the cases, the difficulties in tracking and recording the necessary information are considerable. To obtain accurate and reliable data on trade union discrimination, the relevant institutions should make important arrangements in this regard in their records and databases, including through regulation, improvement and development of infrastructure and registration systems of institutional databases. For this reason, it is currently not possible to obtain reliable data on trade union discrimination. Noting with regret that the Government does not report progress concerning this matter, the Committee once again stresses the need to take concrete steps towards establishing the system for collecting data on anti-union discrimination and expects the Government to provide in its next report information on developments and progress in this respect.

Article 2. Adequate protection against acts of interference. Collective agreement bonus. The Committee notes the observations of the SAHİM-SEN and the Government reply thereto concerning the practice of providing “collective agreement bonus”. The Committee notes that SAHİM-SEN has been established in 2016 and has 990 members. The union states that pursuant to additional section 4 of the Decree-Law No. 375 as amended by section 11 of Law No. 7429 on the Amendment of the Electricity Market Law (publication: December 2022), the collective agreement bonus is only paid to the members of the public servant unions that register at least two per cent of the total number of public servants eligible to union membership in the relevant sector. The union alleges that it is losing its members because they do not receive this bonus as members of a small union. The Committee notes that the Government indicates that members of the unions whose membership reaches the 2 per cent threshold and who have union membership dues deducted from their monthly salary or wages, receive the collective agreement bonus, while the members of the other unions receive “collective agreement support”, which is a lower amount. The Government adds that the amendment aimed at contributing to the formation of a stronger public servant unionism to ensure the right of association and collective agreement, and that it has had a positive impact on unionization rate which has increased from 72.63 per cent to 74.54 per cent after its adoption. The Committee notes the information provided. While noting that in certain countries, trade unions may receive, in application of the relevant legislation, public funding proportionate to their level of representativeness, the Committee requests the Government to clarify the rationale behind the payment of sums directly to union members.

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. The Committee had requested the Government to initiate a new consultation process with the social partners with a view to amending 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 once again indicates that the existing system is a product of a long and well-established industrial relations system in Türkiye and that it does not prevent parties wishing to enter into sectoral agreements at the regional and national levels. Sections 2, 33 and 34 of Act No. 6356 introduce workplace-level collective labour agreements, enterprise (company) level collective labour agreements, group-level (multiemployer) collective labour agreements, and framework agreements, and the social partners had reached a consensus on the protection of this system during the drafting of the law. The Committee recalls that its request to amend the law is based on the principle that collective bargaining should be possible at all levels and that legislation that unilaterally imposes a level of bargaining or makes it compulsory for bargaining to take place at a specific level raises problems of compatibility with the Convention. In practice, this issue is essentially a matter for the parties, who are in the best position to decide the most appropriate bargaining level including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise level agreements (General Survey of 2012 on the fundamental Conventions, paragraph 222). Accordingly, the law should not restrict the possibility of the parties to negotiate at all levels and should allow them to decide autonomously if they wish to do so. Therefore, the Committee once again requests the Government to consider the initiation of a new consultation process with the social partners, with a view to amending 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. The Committee requests the Government to provide information on any developments in this respect.

Requirements for becoming a bargaining agent. Private sector. Determination of the most representative union and rights of minority unions. The Committee recalls that section 41(1) of Act No. 6356 sets out the following requirement for becoming a collective bargaining agent at the enterprise level: 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 engage in collective bargaining. In its previous comment, the Committee had noted that the lowering in 2015 of the branch representation threshold for becoming a bargaining agent at the enterprise level from 3 to 1 per cent, has had a positive impact on the unionization rate and had considered that the removal of the branch threshold would have a similarly positive impact on the rate of unionization as well as on the capacity of unions, especially independent unions who are not affiliated to large confederations, to use the collective bargaining machinery. The Committee had therefore requested the Government to take the necessary measures to initiate the consultation process with the social partners, with a view to removing the branch threshold. The Committee notes the Government’s indication that union freedoms are not limited to the right to collective bargaining. There are other tools through which unions can achieve the purpose of protecting and developing the economic and social rights and interests of employees. The Government refers to a 2015 decision of the Constitutional Court, which provides that the 1 per cent industry threshold prevents destructive competition between unions and enables strong unions to become parties to collective bargaining agreements and that this rate does not impose an excessive and extraordinary burden on employees, as having independent and strong unions as parties to collective agreements will enable employees to benefit from union rights more effectively. The Government adds that according to the Communiqué of the Ministry of Labour and Social Security on the statistics dated 31 July 2023, there are 228 trade unions in Türkiye, 106 of which are affiliated to 7 workers’ trade union confederations and 122 are independent. Sixty unions pass the 1 per cent threshold required for collective bargaining, 54 of which are unions affiliated to three major confederations, namely TÜRK-İŞ, Confederation of Turkish Real Trade Unions (HAK-İŞ) and DİSK. The Government reiterates that it is ready to consider proposals to amend sections 34 and 41/1 of Act No. 6356 if the social partners reach consensus in this respect. The Committee also notes the observations of the DİSK regarding this issue, stating that: (i) the 1 per cent sector representation threshold is unnecessary and the 40 and 50 per cent workplace level thresholds are too high, especially considering the unionization level in the country; (ii) the country-wide sectoral threshold of 1 per cent should be lifted and workplace and enterprise level thresholds of 40 per cent and 50 per cent should be reduced; (iii) in cases where no union reaches this threshold, collective bargaining rights should be granted to all unions, at least on behalf of their own members, as recommended by the Committee; and (iv) in cases where collective bargaining rights will be given exclusively to one union, the majority union should be determined by a secret ballot. The Committee notes that, according to the information submitted by the Government, in 2023, 26.3 per cent of all Turkish unions passed the 1 per cent threshold, the rate being 50.94 per cent among the affiliates of the big confederations, but only 4.09 per cent among independent unions. Therefore, the Committee observes that close to 3 quarters of the unions in the country would not qualify for becoming a bargaining agent due to the application of the 1 per cent sectoral threshold. Considering that the law does not provide solutions for collective bargaining in situations where no union meets the legal requirements for becoming an exclusive bargaining agent, the Committee notes that those 3 quarters cannot engage in collective bargaining, even in the workplaces where no union qualifying as exclusive bargaining agent is present. Therefore, the Committee notes that the combination of rules governing the recognition of organizations for the purposes of collective bargaining is not conducive to the development of collective bargaining in the country. In this respect, the Committee notes that according to ILOSTAT, 7.4 per cent of employees in Türkiye were covered by a collective agreement in 2019. In view of the foregoing, the Committee once again urges the Government, in full consultation with the social partners, to take the appropriate measures to: (i) amend section 41(1) of Act No. 6356 so as to ensure that more workers’ organizations can engage in collective bargaining with the employers; and (ii) amend the legislation to ensure that in cases where no union meets the conditions for becoming an exclusive bargaining agent, minority trade unions are at least able to conclude a collective or direct agreement on behalf of their own members. The Committee further requests the Government to provide information on any steps taken in this respect. The Committee also requests the Government to continue providing information concerning the number of unions in the country, indicating those that pass the 1 per cent sectoral threshold, and to also provide information on the number of collective agreements concluded and in force.

Judicial challenges to collective bargaining agent certification. In its previous comment, the Committee had requested the Government to provide its comments on the issues raised by the DİSK, referring to protracted court proceedings concerning employers’ objections to challenge the union majority certificate, which might take up to 6–7 years, during which the bargaining process remains on hold and at the end of which the union might have already lost its majority. The Committee notes the Government’s indication detailing various stages of the objection process and indicating that very short periods are envisaged for the conclusion of the objection process. These periods are 15 days for objection, 15 days for decision in the local court, one month for appeal review and one month for upper appeal review. The total period stipulated by the legislator for the finalization of the objection is three months. The reason for this limitation is that the exercise of a constitutional right should not be prevented or delayed. The Government adds however, that even though in the authorization determination letters, the Ministry gives the address of the workplace or regional directorate to which the business is affiliated and indicates the competent court, the parties file lawsuits in labour courts that have no competence to examine the matter, thus the finalization period of the jurisdictional objection is prolonged. The Government finally indicates that the Court of Cassation has initiated the imposition of administrative fines to prevent this. Taking due note of the information provided by the Government and stressing the potential adverse impact of lengthy proceedings on the development of collective bargaining, the Committee requests the Government to closely monitor the use of the objection proceedings, with a view to preventing and punishing abuses.

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 noted in its previous comments 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 and had requested the Government to remove these restrictions on the material scope of bargaining in the public sector. The Committee notes that the Government indicates that the 2012 amendment significantly broadened the material scope of collective bargaining in the public sector and enabled public servants’ unions and confederations to participate and intervene in decisions and decision-making processes that were previously taken unilaterally by the public authorities. Many increases in the financial and social rights of public servants were adopted as a result of this process. Besides, progress was also made concerning other matters such as leave rights, introduction of disciplinary amnesty, abolition of the practice of terminating the employment of those who received reprimands during the probation period, presence of union representatives in disciplinary committees and important arrangements regarding civil servants with disabilities. The Committee also notes the observations of the KESK and the KAMU-SEN in this respect, stating that the collective bargaining framework for public employees restricts the negotiations to the economic rights and does not allow to discuss other aspects of the professional life. The Committee notes that the KESK states by way of example that there is no session to discuss women public employees’ needs and demands in the professional life and at workplaces. The Committee takes due note of the information provided and requests the Government to indicate the exact material scope of collective bargaining concerning public servants not engaged in the administration of the State, and to indicate the relevant legal provisions.

Collective bargaining in the public sector. Participation of most representative branch unions. The Committee recalls that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and the Public Servants’ Unions Delegation (PSUD) are parties to the collective agreements concluded in the public service. Even though the most representative unions in the branch are represented in the PSUD and take part in bargaining within branch-specific technical committees, their role within the PSUD is restricted in that they are not entitled to make proposals for collective agreements, in particular where their demands are qualified as general or related to more than one service branch. In its previous comment, the Committee had requested 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 notes that the Government reiterates its previous indication concerning the role of the representative branch unions within the technical committee established for each branch. The Committee requests the Government to provide information on the current role of the most representative branch unions in thePublic Servants’ Unions Delegation in respect of the conclusion of collective agreements that are applicable to more than one branch of activity.

Public employee arbitration board. In its previous comment, the Committee had requested 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 notes that the Government merely reiterates in this regard that the chairperson of the Board is appointed from among the Presidents, Vice-Presidents or Heads of Departments of the Court of Cassation, the Council of State (Supreme Court for Administrative Courts) and the Supreme Court of Public Accounts. These high courts and their judges are not connected hierarchically to the executive power and have judicial independence. Furthermore, other Board members do not represent the relevant confederation or the public employer but decide on behalf of the whole country. The Committee also notes the observation of the KESK, stating that the 7th cycle of collective bargaining that took place in August 2023 ended with a referral to the Board, where it was decided that the Government’s offer was fair, and no change was made to it in favour of the public employees. Finally, the Committee notes the observations of the KAMU-SEN stating that to date, the Board has not signed off any decision other than the proposals of the public employer party, a fact which, in the union’s view, confirms the concerns about the impartiality of the chairperson. Recalling that the President of the Republic designates not only the chair, but seven out of eleven members of the Public employee arbitration board, and that as the Government is also the employer in the public sector, it is therefore a party to the negotiations on which the Board will pronounce itself, the Committee notes with regret the lack of progress on this matter and once again urges the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members and to provide information on the steps taken in this respect.

The Committee notes with deep concern the lack of action on the part of the Government to follow up on its various observations regarding protection against anti-union discrimination. In particular, the Committee regrets to note that: (i) seven years after the attempted coup d'état, the civil servants who claim that their dismissal, which was pronounced in application of the State of Emergency Decree-Laws, was motivated by anti-union reasons, have still not been able to have access to an effective, rapid and fair procedure that would adequately protect them against anti-union dismissal; (ii) the Government has not yet taken the measures requested to adopt effective and sufficiently dissuasive sanctions against anti-union dismissals both in the private and public sectors; and (iii) it continues to receive regular allegations of anti-union discrimination. The Committee underlines that it is of utmost importance to adopt, in consultation with the social partners, immediate measures to ensure full application of Article 1 of the Convention. In light of the above, the Committee considers that this case meets the criteria set out in paragraph 109 of its General Report for being invited to appear before the Conference.

[The Government is asked to supply full particulars to the Conference at its 112th Session and to reply in full to the present comments in 2024.]