Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

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

The Committee notes the Government's report and the information it supplied to the Conference Committee in June 1989, as well as the extensive discussion which followed. The Committee also notes the conclusions of the Freedom of Association Committee in Cases Nos. 997, 999 and 1029 (273rd and 276th Reports, May-June and November 1990) and No. 1521 (273rd Report, 275th Report, November 1990) concerning Turkey. It further notes the observations provided by the Turkish Confederation of Employers (TISK) and the Confederation of Turkish Trade Unions (TURK-IS).

The Committee has expressed for many years its concern regarding two problems in the Turkish legislation on collective bargaining: the numerical requirements imposed by section 12 of Act No. 2822 for trade unions to be allowed to negotiate a collective agreement (10 per cent of the workers in a branch and more than half of the employees in a workplace), and the procedure set out in section 33 of Act No. 2822 for compulsory arbitration in certain cases. In its last observation, the Committee also requested the Government to clarify the situation as regards public servants.

1. Concerning the issue of numerical requirements, the Committee notes once again that the Government merely reiterated its previous replies and stated that it found no grounds for any amendment initiative, in the absence of requests to that effect from workers' or employers' associations.

As the Committee repeatedly pointed out in the past, although it may be accepted that the most representative unions have preferential or exclusive bargaining rights (provided they are based on objective and pre-established criteria), the numerical requirements in article 12 of Act No. 2822 are not in accordance with the principle of voluntary collective bargaining since, in particular, unions which have a majority membership in a workplace but not exceeding 50 per cent of the workers cannot enter into collective bargaining with the employer; similarly, a trade union meeting the 50 per cent criterion cannot bargain if it does not represent 10 per cent of the workers in the industry.

2. As regards the provisions for compulsory arbitration in certain situations (article 33 of Act No. 2822), the Government indicates once again that this provision is only intended for extremely delicate circumstances that may arise and has never been used to interfere with the operation of the free collective bargaining system.

The Committee is bound to recall in this respect that the application of the compulsory arbitration procedure established by legislation should be restricted to essential services in the strict sense of the term.

3. Concerning the situation of public servants, the Government states that the national legislation classifies public servants in three categories: civil servants, contract employees and manual workers. Only the latter have the rights to organise and to bargain collectively. The Government adds that both civil servants and contract employees are considered as engaged in the administration of the State and thus excluded from the scope of the Convention, by virtue of Article 6.

The Committee notes that these are essentially the arguments raised by the Government and dismissed by the Freedom of Association Committee in Case No. 1521. It recalls that, while the concept of public servant may vary under the various national legal systems, the exclusion from the scope of the Convention of persons who are not engaged in the administration of the State is not compatible with the requirements of Article 6 of the Convention. Accordingly, a distinction must be drawn between public servants employed in various capacities in Government ministries or comparable bodies, and other persons employed by the Government, by public undertakings or by independent public corporations.

4. The Committee further notes that two tripartite meetings were held in March and July 1990, focusing on new amendments that could possibly be made to the existing legislation. Having been dissatisfied with the outcome so far, the Government intends to carry on with the talks until a consensus becomes visible, since it wishes to find a far-reaching agreement rather than a limited one. The Government reiterates that it genuinely intends to amend its legislation.

5. Finally, the Committee notes that, while the Turkish Employers' Association (TISK) feels that no legislative change is necessary, the Confederation of Turkish Trade Unions (TURK-IS) considers that all the problems identified by the ILO still await solution; TURK-IS complains in particular that no serious progress was made in the tripartite meetings.

Taking into account all the above considerations, its repeated previous comments, the conclusions and recommendations of the Freedom of Association Committee approved by the Governing Body, the numerous opportunities of technical advice offered to the Government by the ILO, and the extensive discussions at the Conference Committee in 1986, 1987, 1988 and 1989, the Committee urges the Government:

(a) to further and accelerate constructive tripartite discussions on amendments to be brought to its labour legislation; and

(b) to amend its legislation along the lines suggested above, in order to encourage and promote the full development and utilisation of voluntary negotiation between workers' and employers' organisations, so that terms and conditions of employment may be regulated in this way, in accordance with Article 4 of the Convention.

The Committee requests once again the Government to report at an early date on any developments in the situation.