Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Türkiye (Ratification: 1993)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 and 1 September 2018 as well as the observations of the Confederation of Progressive Trade Unions of Turkey (DİSK) and the Confederation of Public Employees Trade Unions (KESK) attached to them and the Government’s reply thereto. The Committee also notes the observations of the Turkish Confederation of Employer Associations (TİSK) transmitted by the International Organisation of Employers (IOE) received on 1 September 2018 as well as the observations of Education International (EI) and the Education and Science Workers’ Union of Turkey (EGİTİM SEN) received on 1 October 2018 and the Government’s reply thereto. Further, the Committee notes the observations of the TİSK and the Confederation of Turkish Trade Unions (TÜRK-İŞ) communicated with the Government’s report. The observations of TÜRK-İŞ allege that workers employed temporarily via private employment agencies cannot enjoy trade union rights as they often change industry and unionization in Turkey is industry-based. They also refer to allegations of pressure exercised on workers, particularly in public sector workplaces, to join unions designated by the employer. The Committee requests the Government to provide its comments in this respect.

Civil liberties. The Committee recalls that for a number of years it has been commenting upon the situation of civil liberties in Turkey. It notes the observations of the ITUC, KESK and DİSK, alleging the prohibition of many demonstrations and press statements of the DİSK and KESK and their affiliated unions, and numerous arrests of union members and officials, as well as withdrawal of passports of the dismissed KESK executives. The Committee notes the Government’s general reply to the alleged oppression of certain unions and their members, indicating that the examples cited mostly concerned the situations where the requirements of the state of emergency were ignored or disrespected persistently; or where unlawful strike action was called for; or open-air activities were conducted in violation of Law No. 2911; or where disciplinary procedures were applied to civil servants involved in politics in violation of their status. The Government finally indicates domestic administrative or judicial ways of remedy are available against all acts of the administration. The Committee requests the Government once again to provide information on the measures taken to ensure a climate free from violence, pressure or threats of any kind so that workers and employers can fully and freely exercise their rights under the Convention. In this regard, the Committee requests the Government to indicate whether the aforementioned administrative or judicial remedial channels have been invoked by union members or civil servants, and with what results.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee had noted that section 15 of Act No. 4688, as amended in 2012, excludes senior public employees, magistrates and prison guards from the right to organize. The Committee notes the Government’s indication in reply to the 2015 KESK observations that in a judgment dated 30 September 2015, the Constitutional Court repealed the restriction laid out in section 15(a) of Act No. 4688, thus allowing the personnel of the Administrative Organization of Turkish Grand National Assembly to unionize. The Government further adds that the restrictions under section 15 of the Act are limited to those public services where disruption cannot be compensated such as security, justice and high-level civil servants. The Committee notes the observations of the KESK which, while welcoming the Constitutional Court decisions of April 2013 and January 2014 that abolished certain restrictions on the right of public servants to organize, denounce the remaining restrictions that allegedly affect one sixth of public servants. Recalling that the only exceptions from the application of the Convention pertain to the armed forces and the police, the Committee once again requests the Government to take the necessary measures to review section 15 of Act No. 4688 as amended with a view to ensuring to all public servants the right to form and join organizations of their own choosing.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that in its previous comments it had noted that section 63(1) of Act No. 6356 provides that a lawful strike or lockout that has been called or commenced may be suspended by the Council of Ministers for 60 days with a decree if it is prejudicial to public health or national security and that if an agreement is not reached during the suspension period, the dispute will be submitted to compulsory arbitration. For a number of years, the Committee, along with the Committee on Freedom of Association (CFA), has been requesting the Government to ensure that section 63 of Act No. 6356 is not applied in a manner so as to infringe on the right of workers’ organizations to organize their activities free from government interference. The Committee notes that in a decision dated 22 October 2014, the Constitutional Court ruled that the prohibition of strikes and lockouts in banking services and municipal transport services under section 62(1) is unconstitutional. However, the Committee also notes that in its last examination of Case No. 3021, the CFA has noted that pursuant to a recent Decree with power of law (KHK) No. 678, the Council of Ministers can postpone strikes in local transportation companies and banking institutions for 60 days. On this occasion, the CFA had invited the Government to send detailed information on the application of the Decree No. 678 to the Committee of Experts, having referred the legislative aspects of the matter to this Committee (see 382nd CFA Report, June 2017, paragraph 144).The Committee notes in this regard the DİSK 2018 observations, indicating that KHK No. 678 allows metropolitan municipalities to postpone strikes in urban public transportation and banking services and alleging the suspension, under section 63, of five strikes in 2017, during the state of emergency. The Committee notes the Government’s indication that these strikes which were to take place in energy, glass, steel, pharmaceutical and banking industries, covering 24,000 workers were considered to be a threat to national security, public health and economic and financial stability. The Government further indicates that the disputes in the steel and banking industries were finally submitted to compulsory arbitration and in all the other cases an agreement was reached between the parties. The Government finally indicates that apart from these five cases there was no limitation to the right to strike during the state of emergency and that workers in 20 working places went on strike. The Committee notes with concern that shortly after the ruling of the Constitutional Court lifted the ban on strikes in urban transportation and banking sectors, a decree gave the power to metropolitan municipalities to ban strikes in those sectors. The Committee further notes with concern that in 2017 five strikes were suspended including in the glass sector on the grounds of threat to national security, while in 2015 the Turkish Constitutional Court had found a strike suspension in the same sector unconstitutional. It recalls that the right to strike may be restricted or banned only with regard to public servants exercising authority in the name of the State, in essential services in the strict sense of the term, and in situations of acute national or local crisis, for a limited period of time and to the extent necessary to meet the requirements of the situation. Recalling the Constitutional Court ruling that strike suspensions in these sectors were unconstitutional, the Committee requests the Government to take into consideration the above principles in the application of section 63 of Act No. 6356 and KHK No. 678. It further requests the Government to provide a copy of KHK No. 678.

The Committee notes the ITUC allegation that Decree No. 5 adopted in July 2018 provides that an institution directly accountable to the Office of the President – the State Supervisory Council (DDK) – has been vested with the authority to investigate and audit trade unions, professional associations, foundations and associations at any given time. According to the ITUC, all documents and activities of trade unions may come under investigation without a court order and the DDK has discretion to remove or change the leadership of trade unions. The Committee notes the Government’s reply on this matter, indicating that the DDK carries out its examinations with the purpose of ensuring the lawfulness, regular and efficient functioning and improvement of the administration and there is no intention to interfere with the internal functioning of the unions. The Government further adds that the power to dismiss or suspend union administrators is an arrangement intended only for public servants. Recalling that any law that gives the authorities extended powers of control of internal functioning of unions beyond the obligation to submit annual financial reports would be incompatible with the Convention, the Committee requests the Government to transmit a copy of Decree No. 5 in order to make a thorough examination of its conformity with the Convention in accordance with the above principle. The Committee also requests the Government to provide specific information on any investigations or audits undertaken pursuant to Decree No. 5 and their results, including any dismissal or suspension of trade union leaders.

Article 4. Dissolution of trade unions. The Committee notes the observations of the DİSK, alleging that pursuant to the KHK No. 667, 19 trade unions affiliated with Cihan-Sen and Aksiyon-İş with memberships of around 22,000 and 30,000 were closed down for being in connection with the Fethullahist Terrorist Organization/Parallel State Structure (FETO/PSS). The DİSK further adds that a provision in the KHK provides that “trade unions, federations and confederations that are not specified in the annexed list, but found as in connection, communication or adherence to formations threatening national security or to terrorist organizations are banned upon the suggestion of the commission and approval of the minister concerned”. The Committee wishes to recall that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees. This can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution. The Committee notes that after the attempted coup of 15 July 2016, Turkey was in a state of acute national crisis, and that in the meantime, a Commission of Inquiry has been established that receives applications against the dissolution of trade unions by decree during the state of emergency and whose decisions are appealable before administrative courts of Ankara. The Committee has examined the role of this Commission in its comment on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in Turkey. The Committee firmly hopes that the Commission of Inquiry will be accessible to all the organizations that desire its review and that the Commission, and the administrative courts that review its decisions on appeal, will carefully examine the grounds for the dissolution of trade unions paying due consideration to the principles of freedom of association. It requests the Government to continue to provide information on the number of applications submitted by the dissolved organizations, and the outcome of their examination in the Commission. The Committee further requests the Government to provide information on the number and outcome of appeals against the negative decisions of the Commission concerning dissolved trade unions.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 108th Session and to reply in full to the present comments in 2019.]