Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2013 concerning the application of the Convention.

It further notes the comments submitted by the Municipality and Private Administration Employees Trade Union (BEM-BIR-SEN) in a communication dated 23 November 2012; comments of the Turkish Confederation of Employer Associations (TİSK), Trade Union Confederation (HAK-İŞ) and Confederation of Progressive Trade Unions of Turkey (DİSK) in communications dated 10 December 2012, 29 March and 3 April 2013, respectively, and the Government’s reply thereon; comments made by the International Organisation of Employers (IOE) jointly with the TİSK in a communication dated 30 August 2013; and comments of the International Trade Union Confederation (ITUC) in a communication dated 30 August 2013.

The Committee recalls that it had previously requested the Government to provide its observations on the allegations of violations of collective bargaining rights and numerous cases of anti-union dismissals submitted by the ITUC in a communication dated 31 July 2012. The Committee notes that the ITUC’s latest communication also contains similar allegations. In the absence of the Government’s reply thereon, the Committee requests the Government to provide its observations on the outstanding comments of the ITUC.

The Committee notes the enactment, on 11 July 2012, of the Act on Trade Unions and Collective Bargaining Agreements (Act No. 6356) which repealed Act No. 2821 on trade unions and Act No. 2822 on collective agreements, strikes and lockouts.

Scope of the Convention. The Committee notes that pursuant to the definition of what constitutes a trade union (sections 2(1)(ğ) and 3 of Act No. 6356), it appears that all trade unions should be sector-based organizations. The Act provides for 20 sectors. The Committee requests the Government to clarify whether domestic workers, who do not appear to fall into any of the listed sectors, are covered by the new legislation.

The Committee notes that sections 17(5) and 19 of Act No. 6356, regulating trade union membership, introduce a requirement for the publication of the application and withdrawal forms relating to trade union membership on the e State gate, which would appear to impact the right to organize of workers for whom this means is not accessible, as well as create difficulties for workers in the informal economy. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that the e-State gate does not create an obstacle for the exercise of the rights guaranteed by this Convention.

With regard to the right of civilian personnel in military institutions and prison guards, who were excluded from the right to organize and, therefore, from the right to be represented in negotiations, the Committee notes with interest the Government’s indication that by a decision of the Constitutional Court (No. 28705), the obstacles for the civil servants and public servants working in the Ministry of National Defence and Turkish Armed Forces to being a member of trade unions have been removed. The Committee requests the Government to clarify whether the rights under the Convention have been afforded to prison guards by virtue of this decision.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that the June 2013 Conference Committee requested the Government to establish a system for collecting data on anti-union discrimination in the private sector and to provide information on the functioning of national complaints mechanisms and all statistical data related to anti-union discrimination in the private and public sectors.

The Committee notes that the Government refers to the programmed and not programmed (carried out upon complaints by workers, trade unions, etc.) labour inspection procedures. While the total number of inspections is recorded, the Government indicates that there are no detailed statistics on the subject of the complaints. In light of the ITUC’s allegations noted above, the Committee, like the Conference Committee, requests the Government to establish a system for collecting data on anti-union discrimination (in both private and public sectors) and to provide information on the concrete steps taken in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

With regard to the complaints procedures, the Government refers to section 25 of Act No. 6356 which describes the protection against acts of anti-union discrimination guaranteed to workers. In this respect, the Committee notes the concerns expressed with regard to section 25(5) of Act No. 6356 referring to the procedures provided for in the Labour Act (No. 4857), in so far as the Labour Act, by virtue of its section 18, appears to protect against anti-union dismissals only workers who are employed, for an indefinite period, by an establishment employing thirty or more workers and who meet a minimum seniority of six months. The Committee notes that the Government indicates in its report that the new legislation does not link the compensation for anti-union discrimination with the number of workers employed by the enterprise. The Government also indicates that this issue is under examination by the Constitutional Court whose decision will be binding. The Committee requests the Government to provide information on this decision once it has been handed down. The Committee trusts that all workers will be covered by the new provision.

With reference to the abovementioned e-State gate, the Committee considers that the information on trade union affiliation which is accessible to all, including employers, could pose a serious risk of exposure of trade union members, or workers wishing to become trade union members, to reprisals and anti-union discrimination, contrary to the Convention. The Committee requests the Government to consider the possibility of leaving the matter of publication of forms up to the union members concerned or to take the necessary measures to ensure that the information on the e-State gate does not become public. The Committee requests the Government to report in detail on the manner in which this system operates and ensure that the names of trade union members are not publicly accessible.

Article 4. Collective bargaining. The Committee notes that section 34 of Act No. 6356 provides that a collective work agreement may cover one or more than one workplaces in the same branch of activity, which appears to limit the right of workers’ and employers’ organizations to freely determine how and at what level to carry out collective bargaining. The Committee recalls in this respect, that according to the principle of free and voluntary collective bargaining embodied in Article 4 of the Convention, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law. Indeed, there may be circumstances where the parties wish to bargain across sectors through regional or national agreements. The Committee therefore requests the Government to take the necessary measures in order to review the impact of this provision and to consider, in consultation with the social partners, amending section 34 of the Act so as to ensure that it does not restrict the choices available to the parties. It requests the Government to provide information in this respect.

The Committee further notes that section 35(2) of the Act provides that the term of the collective agreement cannot be extended or shortened by the parties after the signature of the agreements and that the collective agreement cannot be terminated before the term of the agreement. While a collective agreement should not be subject to unilateral termination or extension, parties should be able to decide, upon mutual agreement, to extend the duration of a collective agreement or even to terminate it and negotiate a new one. The Committee requests the Government to take the necessary measures in order to revise this provision in consultation with the social partners and to provide information in this respect.

The Committee notes section 41(1) which sets out the following requirement for becoming a collective bargaining agent: the union should represent at least one per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. The Committee reiterates its long-standing comment that such double threshold could create obstacles to collective bargaining at the enterprise level, where a representative union should be able to negotiate a collective agreement regardless of its overall sectoral level representativity. Moreover, observing the statistics provided by the Government on the rate of unionization in the country (8.8 per cent), the Committee understands that the threshold set by the legislation does not promote collective bargaining and may result in the decrease in the number of workers covered by collective agreements in the country. The Committee notes the concerns expressed by the trade unions in their communications mentioned above, which indicate that the strict imposition of the sectoral level thresholds will have the effect of eliminating a number of unions from the collective bargaining process which until now were able to bargain collectively on behalf of their members. The Committee notes the Government’s indication that the set thresholds represent a result of negotiations with the social partners. The Government points out, however, that it will be possible to level down these thresholds by re-evaluating the social dialogue mechanisms if there is a request from the social partners. The Committee expresses the firm hope that the thresholds provided for in section 41(1) of the Act will be revised and lowered in consultation with the social partners. It requests the Government to provide information on the measures taken or envisaged in this respect.

Furthermore, the Committee notes that section 42(3) provides that if it is determined that there exists no workers’ trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence. It is not clear which union, if any, would be able to bargain collectively if the conditions for competence are not met, as section 45(1) stipulates that an agreement concluded without an authorization document is null and void. In this respect, the Committee recalls that if no union meets the required threshold, collective bargaining rights should be granted to all unions, at least on behalf of their own members. In the light of the above, the Committee requests the Government to take the necessary measures in order to amend the above sections, in consultation with the social partners, and to provide information in this respect.

The Committee notes that sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) provide for the following situations in which the certificate of competence to bargain may be withdrawn by the authorities: the failure to call on the other party to start negotiations within 15 days of receiving the certificate of competence; the failure to attend the first collective bargaining meeting or failure to begin collective bargaining within 30 days from the date of the call; failure to notify a dispute to the relevant authority within six working days; failure to apply to the High Arbitration Board; failure to take a strike decision and/or to begin a strike in accordance with the legislative requirements; and failure to reach an agreement at the end of the term of strike postponement. Furthermore, pursuant to section 60, a strike decision may be taken within 60 days from the date of the notification of the dispute and may be implemented within this term; if no strike decision is taken, the competence certificate becomes void. With regard to the abovementioned sections in general, the Committee considers that such interference by the authorities (withdrawal of authorization to bargain) is likely to hinder rather than promote collective bargaining and thus are contrary to the Convention. Moreover, the Committee considers that instead of deciding to go on strike, the parties should be able to continue negotiating following notification of the dispute. The Committee requests the Government to take the necessary measures, in consultation with the social partners, to amend these provisions so as to bring them into conformity with the Convention, and to provide information in this respect.

The Committee notes that according to section 50(1) of the Act, a mediator is selected from an official list with the participation of at least one of the parties or by the authority in charge. The Committee recalls that in order to give full effect to the principle of free and voluntary negotiations, the bodies appointed for the settlement of disputes between the parties should be independent and have the confidence of both parties concerned. It therefore requests the Government to take the necessary measures to amend this provision in consultation with the social partners so as to ensure respect for this principle. The Committee requests the Government to provide information in this regard.

Collective bargaining in the public service. The Committee recalls that, with respect to Act No. 4688 as amended, it had requested the Government to ensure that: (i) the direct employer participates, alongside the financial authorities, in genuine negotiations with trade unions representing public servants not engaged in the administration of the State; and (ii) a significant role is left to collective bargaining between the parties. It had further recalled that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector was the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State. The Committee requests the Government to provide information on the measures taken or envisaged to that end.

The Committee once again requests the Government to provide copies of the Act adopted in February 2011 providing for a collective agreement premium for members of public servant trade unions and of the instrument providing for the abrogation of a criticized provision concerning contract personnel in the public sector.