Workers' Representatives Convention, 1971 (No. 135) - Türkiye (Ratification: 1993)

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)



A Government representative pointed out that Turkey was once again placed on the agenda of the Committee as a result of a misinformed decision, if not a politically motivated one. He further pointed out that the Committee of Experts had not made any comment on the application of the Convention in law and in practice for the last two reporting periods. In this respect, he regretted that the Committee of Experts had not taken note of the protective provisions of the Act on trade unions and collective bargaining agreements (Act No. 6356), nor of the amendments made in 2012 to Act No. 4688 on Public Employees’ Unions. The Committee of Experts had referred only to the allegations made by the Confederation of Public Employees’ Trade Unions (KESK). To respond to these allegations, the Government needed adequate time to consult several public institutions and to make inquiries. As always, the Government would have provided, in due course, the necessary information. The fact that the Government did not have time to do so did not justify the inclusion of this case in the shortlist. Regarding the legislation in force, he recalled that the amendments made to Act No. 4688 in 2012 introduced the following changes: (i) along with the shop stewards representing the majority trade union, minority trade unions were now also allowed to appoint workplace representatives; (ii) pursuant to section 23, it was now possible to appoint a shop steward at the workplace with less than 20 public servants; (iii) paid time off given to shop stewards to carry out their activities was increased from two hours to four hours in a week; (iv) public employers could not change the workplace of shop stewards, the minority trade unions’ workplace representatives, trade union officials, trade unions’ branch office officials, trade unions’ provincial and district representatives, without clear and precise justifications; and (v) the Act required public employers to provide facilities to the trade union representatives to enable them to carry out their duties during and outside working hours, in a manner that did not hinder management and provision of services. Similarly, the Prime Minister’s Circular No. 2003/37 also ordered public institutions to provide offices and noticeboards to trade union representatives, to the extent possible, and allot meeting and conference rooms, if available, for trade union activities, in accordance with section 23 of Act No. 4688.

Addressing the KESK allegations, he recalled that one of the cases concerned related to the transfer of Mr Celik from Ankara National Library to another workplace. Initially, by a letter sent in 2008, the Kultur Sanat-Sen Trade Union had appointed him workers’ representative. However, another union member was named representative by a letter received in 2009. The latter person was still the workplace representative and attended the meetings with the administration in 2013, 2014 and 2015. In a different case, the transfer, in January 2015, of Mr Kuruuzum, Kultur Sanat-Sen Trade Union workplace representative in Antalya Provincial Directorate of Culture and Tourism, was revoked in accordance with section 18 of Act No. 4688, upon receipt of his letter in February 2015 indicating that he was a trade union workplace representative. Currently, he worked at the Antalya Provincial Directorate of Culture and Tourism. In another case, the Ministry of Forestry and Water Affairs determined that Tarim Orkam-Sen Trade Union’s workplace representative, Mr Sonmez, was very often absent from work without his employer’s permission. He was transferred to Ankara Ninth Regional Directorate affiliated to the Ministry. However, he was reinstated to his previous job by the Ankara Third Administrative Court. In another case, a representative of the Trade Union of Public Administration Employees (BES), Mr Bektas, was transferred from Samsun Tenth Meteorology Region to Cankiri Meteorology Directorate because he had insulted, physically assaulted and threatened a colleague and disrespected his supervisor. His transfer was not related to any trade union activity. The Samsun Sixth Criminal Court of Peace found him guilty of the above acts. At no point did Mr Bektas claim anti-union acts. Furthermore, the employment contract of Haber-Sen Trade Union’s workplace representative at the Directorate General of Press and Information, Mr Kaftancioglu, was terminated when he had failed an exam to determine his qualifications. He was reinstated in his previous job by a verdict of the First Administrative Court of Ankara. As the relevant institution appealed to the Court of Cassation, the case was still pending. Further on, Mr Taskesen, Yapi-Yol Sen Trade Union’s workplace representative at the workplace in Kahramanmaras was transferred to the workplace in Antalya of the same Regional Directorate in October 2014. The Administrative Court of Kahramanmaras stayed the execution of his transfer in December 2014 and consequently repealed it in March 2015. While the case was still pending, upon his request, he was transferred to his previous workplace in January 2015 and was still working there. From the file of Mr Berberoglu, BES Trade Union workplace representative at the Izmir Guzelbahce Revenues Directorate, it appeared that he had violated the regulation on appearance and attire despite being warned on several occasions. As a result, he was transferred to another workplace of the same public institution in the same city. The Third Administrative Court of Izmir ruled that the decision was in conformity with the law. He retired from the public service in July 2016. Regarding the allegation that no office space was allocated to the BTS Trade Union in four workplaces in 2014, the speaker indicated that an investigation by the Directorate General of State Railways revealed that there was no such application by the said trade union for the allotment of an office in 2014. The Government representative emphasized that the protection provided to workers’ representatives by the Convention existed only if they acted in conformity with the existing laws. In case of any grievance, administrative and judicial remedies were in place and functioned effectively in Turkey. Regarding the observation made by the Confederation of Turkish Trade Unions (TÜRK-ÍS) he noted that it did not refer to any discrepancy between the law and the Convention. In conclusion, he recalled that Act No. 6356 regulated the protection of trade union shop stewards. Pursuant to its section 24, an employer could not terminate the employment contract of shop stewards unless there was a just cause for termination. The shop steward concerned and his/her trade union had the right to apply to the competent court, which could order reinstatement without the loss of pay and benefits. Moreover, no major changes in employment, including transfer, were possible without the shop steward’s consent.

The Worker members noted that this was the first time the Committee had discussed the application of the Convention in Turkey. It was a pertinent moment to discuss that issue as Turkey was now governed through emergency decrees adopted by the executive with no judicial oversight. The total disregard for the rights of workers and the lack of protection afforded to their representatives was embedded in the overall assault on democratic institutions. Workers’ representatives were subject to arrests, dismissals, transfers and other forms of discrimination for defending the rights of those they represented. The Worker members were shocked to hear about the July 2016 coup attempt. While defeated, that violent attack perpetrated by some officials of the military took the lives of almost 240 people who courageously defended democracy over military rule. The Worker members commended the bravery of those citizens, many of whom were trade union leaders and members, and expressed their condolences and solidarity to their families. Even when they did not agree with the politics of certain governments, the Worker members would always stand firmly against those who wanted to impose brute force against an elected government. However, the authoritarian measures the Government had taken in the aftermath of the attempted coup had given rise to equal concern. While those were first targeted against persons who were allegedly responsible for the coup attempt, soon after the drastic measures taken were extended far beyond that group turning into a purge of oppositional voices. Workers’ representatives in the public sector became a primary target for arrest, dismissal and harassment. Authorities had remanded more than 47,000 people in pre-trial detention and had closed down hundreds of associations, foundations and other institutions. In September 2016, the Minister of Justice stated that almost 34,000 convicted inmates would be released to make space in prisons. Many of those arrested and detained had absolutely nothing to do with the coup attempt or terrorist groups. They were mere trade union leaders standing up against destructive policies. For example, on 10 November 2016, the Trade Union of the Employees of the Public Health and Social Services (SES) had organized a collective action against unjustified collective dismissals and declared a state of emergency. The police had intervened and many workers, including the leader of SES and members of the central executive committee, had been detained. Even before the attempted coup, trade union leaders had been subjected to arbitrary arrest. Twenty-six members and board members of the SES Mugla Branch, including Huseyin Sariefe, had been taken into police custody on 11 October 2015 following a protest against a terrorist attack on a trade union rally that had killed more than 100 people. Court proceedings had been initiated against them. The Adiyaman Governorate had launched an administrative investigation against BES Women’s Secretary, had changed her workplace and suspended her from her office for reading a press statement on International Women’s Day in 2017. Almost 150,000 public servants had been dismissed and banned from public service under emergency decrees. The grounds of dismissal were always general alleging that those dismissed were “members of, connected to, or in communication with a terrorist organization”, without any individualized justification or evidence being provided. Trade union officials in public institutions had been systematically targeted by false allegations leading to their suspension and dismissal in an attempt to get rid of trade unions in those institutions. By December 2016, 11,711 KESK members had been suspended from office, including Gülistan Atasyon, KESK Women’s Secretary, Fikret Aslan, the President of BES, and Fikret Calagan, SES Executive Committee member. The majority of the dismissals were based on emergency decrees and workers were unable to challenge their dismissals in courts. The Worker members made an urgent appeal to the Government in relation to two colleagues who had been on a hunger strike for 93 days. KESK members, Nuriye Gülmen and Semih Özakça, had been protesting against their unfair dismissal by emergency decree. They were arrested 17 days ago and their health condition was now at a critical stage. In addition to dismissal and arrest, trade union representatives faced other forms of discrimination, such as forceful transfers and disciplinary procedures, often linked to critical social media messages of trade union representatives, which had allegedly “insulted” government representatives. The Worker members emphasized that the scale of abuses against trade union representatives subsequent to the attempted coup was undeniably unprecedented. There were also more long-standing concerns in relation to the protection of worker representatives. Dismissals of trade union representatives before their official recognition by the Ministry of Labour were frequent given that the protection offered by the labour laws did not extend to the period during which worker representatives sought official recognition. Dismissals and other forms of discrimination had often led to the end of efforts to establish trade unions at those workplaces. In conclusion, the Worker members expressed their deep sadness at the unprecedented attacks against union representatives in all parts of Turkey, and saluted the courage of those workers who put themselves at risk to give a voice to those they represented under extremely severe conditions and hoped that the discussion would help the Government to understand the impact of its policies on trade unionists and those they represented.

The Employer members recalled that the Convention was a technical Convention that sought to protect worker representatives from any act prejudicial to them. They highlighted that, in its brief observation, the Committee of Experts had requested the Government to provide comments on the observations made by the TÜRK-ÍS and KESK containing allegations of dismissal, transfers, disciplinary measures and denial of facilities to workers’ representatives. The Committee of Experts had not commented on the legislation establishing protective measures both in the private and public sectors. The Employer members noted the elements submitted by the Government in relation to the individual cases referred to by KESK. They also noted the legislative developments mentioned by the Government regarding the protection on union representatives in the public sector, including protection against dismissal, and understood that workers’ representatives enjoyed effective protection against dismissal and other prejudicial acts in the private sector and that Act No. 4688, as amended, prohibited dismissals, relocation and prejudicial treatment due to trade union activities. They considered that information was necessary in order to ensure a full understanding of the situation in the country concerning the application of the mentioned pieces of legislation and encouraged the Government to provide the requested information to the Committee of Experts without delay.

The Worker member of Turkey referred to the history of Turkish labour legislation with regard to the protection of workers’ representatives or workplace union representatives. The first relevant legislation was Labour Act No. 3008 adopted in 1936, followed by the Trade Unions Acts Nos 274 and 2821, which had been adopted in 1963 and 1983, respectively. Pursuant to those Acts, employers could not terminate the work contract of workplace union representatives unless they had a justifiable reason clearly stated in writing. That protection had been abolished with Act No. 4773 in 2002, but reinstated by section 24 of Act No. 6356. The same provision, which was still in force, also prohibited employers from changing the workplace and the main job duties of union representatives. Furthermore, if the employer terminated the employment contract of the union representative, a complaint could be filed before the court by the representative or his or her union, within one month from the date of the notification of the termination. The court could direct the employer to reinstate the representative without loss of pay or benefit. Act No. 6356 was in line with the Convention. However, those protections applied only to unions that had already organized more than 50 per cent of the workers and had been recognized as competent collective bargaining agents. At the workplaces where the organizing activities had just started, the workers participating in those activities did not benefit from the same guarantees and were generally dismissed by their employers. They could only receive compensation if they could prove that they had been dismissed on account of their trade union activities. Therefore, it was necessary to extend the scope of the current regulations to those workers. During the military coup attempt, 248 innocent people had been killed. If the coup attempt had been successful, the democratic institutions and civil society organizations including trade unions would have ceased to exist. That was for instance evidenced by the case of the executives of the trade union All Motor Vehicle Transportation Workers’ Union (TÜMTÍS), who had been accused and detained on false charges. The judges in their cases had eventually been dismissed for being members of the Fetullah Gulen Terrorist Organization (FETO). All parties, including the opposition, were united and asked for the punishment of the criminals of this bloody coup. At the same time, they had concerns about the possible innocent people facing difficulties to prove their innocence before the courts. In that regard, the announcement by the Government of the establishment of a commission to provide access to the legal process for those people was welcome. Terrorism endangered the democratic values and workers’ rights and freedoms. In addition to the military coup attempt, Turkey had been the target of frequent terrorist attacks, especially at its south and south-east borders. Under those circumstances, it was not easy to put labour-related issues on the agenda of the country. He looked forward to the end of the state of emergency as soon as the serious threats to democracy were overthrown.

Another Worker member of Turkey noted that, in the wake of the attempted coup, 4,800 public officials, members of the Turkish Confederation of Public Workers’ Associations (Türkiye Kamu-Sen), including 39 branch executives and 50 workplace representatives, had been dismissed by an emergency decree for presumed support of the Gulenist movement. No international Conventions or national legislation had been taken into account during the dismissal process, nor had the investigations or disciplinary process been carried out. The right to self-defence had been ignored. The guilty and the innocent had been mixed together. A commission of seven members, mostly from the high courts, had now been established to review those dismissals; however as of yet, no decision had been handed down. Clearly, problems persisted with the implementation of international Conventions and the situation was worsening. He urged the Government to implement ILO standards and respect national legislation.

The Employer member of Turkey recalled that the observation of the Committee of Experts referred to the allegations of KESK, which concerned dismissals, transfers and disciplinary measures against workers’ representatives, and regretted that the Government had not responded to these claims. During the attempt to overthrow the Government, over 300 people had been killed and more than 2,000 wounded as a result of the failed coup. The speaker condemned any terrorist attack or unconstitutional effort to seize power and overthrow democracy. Workers’ representatives in Turkey enjoyed effective protection against dismissal and any other prejudicial acts. In line with the Convention, these protections applied to all employees regardless of their sector of activity. The national laws and judicial practices also provided for effective and sufficiently dissuasive sanctions to prevent the violation of workers’ representatives’ rights. For public sector employees, the protection of worker representatives was regulated under Act No. 4688. Section 18 of that Act prohibited all kinds of dismissals, relocation and prejudicial treatment due to the trade union activities of public servants. The Act also extended that protection to the provincial and regional directors of public servants’ trade unions. For private sector employees, the union representatives enjoyed a high level of protection in accordance with Act No. 6356. The employment contracts of union representatives could not be terminated without just cause. In addition, if the union representative was reinstated by a court decision, the employment contract would be presumed to have continued and the wage and benefits would be paid. It was important to examine whether, in the cases referred to by KESK, the representatives had acted in conformity with existing laws. Adequate time would be needed to respond, since the allegations involved several public institutions.

An observer representing the International Trade Union Confederation (ITUC) stated that KESK affiliates faced numerous violations of their rights, including transfers, reassignments to new workplaces, denial of promotions, filing of criminal charges and other legal proceedings against them, suspensions and dismissals, administrative investigations, fines and penalties, mobbing, detentions, arrests and violations of their freedom of speech on social media. In addition, KESK had been targeted by campaigns of discreditation. The state of emergency had been declared on 21 July 2016 on the basis of article 120 of the Constitution. Members of certain unions had been dismissed through emergency decrees. The coup attempt was completely unrelated to the unions affiliated to KESK. While government officials claimed that the dismissals aimed at removing coup plotters from state functions, dismissals targeted opponent democratic forces and trade unions in political conflict with the Government. Thousands of public employees, members and executives of trade unions had been dismissed through an emergency decree and not granted access to justice. There were consistent and serious violations of labour rights. Scientists who had different ideologies than the ones promoted by the Government had been dismissed from academia. The system in place was authoritarian and dictatorial, and aimed at turning unions into branches of the ruling party. Such violations continued and were increasing. The ILO should take an active role before more mass dismissals occurred. Thus, the case should be included in a special paragraph of the Committee’s report.

The Worker member of the Netherlands recalled that, as set out in its preamble, Convention No. 135 supplemented the Right to Organise and Collective Bargaining Convention, 1948 (No. 98), and that it sought to protect worker representatives from any act prejudicial to them, including dismissal, based on their status or activities as a worker’s representative or on union membership or participation in union activities. Worker representatives at all levels, including trade union officials, could only fulfil their duties if they were free to publicly criticize company or government policies if those policies harmed the interests of workers and if they were able to organize peaceful meetings and demonstrations to express the grievances and demands of the workers and communicate those to the general public. The current year’s report for the recurrent discussion on fundamental principles and rights at work also referred to the importance of those civil liberties. Those freedoms and rights were increasingly restricted in Turkey as the media were put under the Government’s control or silenced and trade union officials were threatened with arrests on the accusation of insulting the Government or the President. Both the President and the General Secretary of the Confederation of Progressive Trade Unions of Turkey (DÍSK) faced those charges and other forms of harassment. Many trade union officials had their telephones tapped, houses raided and computers confiscated and trade union industrial action in Turkey was increasingly harmed not only by dismissal of union representatives but also by violence from the police as well as from employers. Emphasizing that those intimidations precluded the effective representation of workers’ interests, she urged the Government to refrain from any action contrary to the Convention and to adopt a policy of protecting and facilitating the role of workers’ representatives.

An observer representing the International Transport Workers’ Federation (ITF) noted that the protection afforded to worker representatives under section 24 of Act No. 6356 was rendered ineffective by serious limitations on the right to organize. Under that Act, a trade union could appoint a workplace representative only after official recognition of the trade union by the Ministry of Labour, and on the condition that employers had not objected to the Ministry’s determination. In reality, an employer’s objection could cause delays of up to three years, during which time the employer could dismiss union members or make them resign from the union. In an ongoing dispute between ITF-affiliated union Nakliyat-Is and an international logistics firm, the company had dismissed 168 workers on grounds of redundancy at the same time the union had filed its recognition application with the Ministry. That had not been a coincidence, and numerous examples existed of such situations. Nor were union officials immune from reprisals. After a successful organizing drive in 2007, 14 leaders of TÜMTÍS had been arrested on the basis of the company’s complaint and sentenced to prison terms for, according to the judicial decision “founding an organization for the purpose of committing crime, violating the right to peaceful work through coercion in order to obtain unfair gain and obstructing enjoyment of union rights”. Seven of those arrested remained in prison, and the branch leader Nurettin Kiliçdogan, had been moved to a high security unit because of his status. Given that the price of joining a union was so high, the speaker wondered where future workers’ representatives would come from. Freedom of association could be exercised only in a climate free of intimidation. Arrests of trade unionists, dismissals of workers and union organizers created an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities. The speaker called on the Government to provide an effective remedy to unjustified termination of the employment of workers’ representatives and union members, which should include their reinstatement, payment of unpaid wages, and maintenance of acquired rights. He further asked the Government urgently to review the sentences of the TÜMTIS leaders.

The Worker member of Germany, speaking also on behalf of the Worker members of France and Italy, stated that it was unquestionable that a State may, in the face of a risk of a coup or a terrorist threat, be able to declare a state of emergency. However, the proclamation of a state of emergency should never serve to violate human rights and workers’ rights, but to defend or restore fundamental rights and the rule of law. Access to free and independent justice should be preserved and no one could be found guilty without a court decision. Human rights, including trade union rights, freedom of association, the right to collective bargaining and the right to strike should not be restricted. The dismissals and arrests of scientists and teachers, many of whom were trade union members or representatives, had already been a reality before the coup. The proclamation of the state of emergency and its extension had escalated the situation and was used to eliminate critical views, including from teachers and employees, independent unions and their representatives in the public administration. Among the thousands of dismissed or suspended trade unionists, many of them were workers’ representatives. It was hard to believe that the mass dismissals and the mass arrests including among trade unionists and union officials were aimed at maintaining democratic order. Those persons had not learned the reasons for their redundancies and had found their names published in a Decree. They were dismissed without compensation and excluded from the social security system. As a result of the dismissals, the basis of their economic existence was destroyed and they were stigmatized. They did not have the opportunity to prove their innocence in a transparent, independent and fair trial, and to take action against unjust dismissals or suspensions. Courts which normally would have been competent to review the dismissals of workers and public servants were not in a position to consider those cases. The Commission of Inquiry, which was set up under pressure of the Council of Europe, was an important step but did not replace access to justice. It was not a sufficient instrument to protect workers’ representatives against dismissals and discrimination. In conclusion, the speaker stressed that without an adequate representation of workers, neither freedom of association, nor the right to collective bargaining, nor the right to strike could be effectively respected.

An observer representing IndustriALL Global Union (IndustriALL) expressed deep concern regarding the impact of recent developments in Turkey on fundamental trade union rights and freedoms. A high-level mission of global and European trade unions had recognized that Turkey faced multiple challenges and threats, but had noted that measures adopted under the current state of emergency were disproportionate to the needs of security. IndustriALL demanded that the Turkish authorities stop legally unfounded collective dismissals, suspensions, intimidation and arrests; revert to legislation based on the presumption of innocence, individuality of criminal responsibility, the right to impartial and transparent trial and appeal, and respect for the rule of law and democracy; put in place an inquiry commission on state of emergency measures and ensure that its decisions were subject to judicial review and effective, timely appeal procedures, including at the European level; reinstate those who had been arrested or suspended; restore freedom of expression and speech for the media and associations; and respect and implement ILO core labour standards, in particular Convention No. 135, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Convention No. 98. The right to strike was threatened in Turkey. Decrees had banned strikes in the glass, metal, banking and pharmaceutical sectors, contending that they threatened national security or public health. The speaker reiterated IndustriALL’s support for the democratic values and freedoms set out in ILO Conventions and international and European charters, as well as for the rule of law, and called upon the ILO to monitor the implementation of those as related to trade unions in Turkey.

The Worker member of Niger underscored the importance of analysing the case in a coherent manner and of considering the context in which the various violations had been committed. If the violations had followed the attempted coup of July 2016, that fact should be taken into account. Any attempt to seize power by military means was reprehensible as it set the stage for a whole range of abuse and violations, including of freedom of association. Regarding the situation in Turkey, the ILO needed to provide technical assistance to strengthen social dialogue between the Government and the social partners. It was to be hoped that, at the next session of the Conference, the Worker and Employer representatives of Turkey would be able to report that the situation has been rectified and that the challenge had been taken up.

The Worker member of Brazil expressed sincere solidarity with the workers of Turkey given the current political instability in the country, which could be damaging to democracy and the trade union movement. In the face of systematic and repeated violations of the Convention, it was apposite to quote the Committee on Freedom of Association: “One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures.” However, in the case at hand, the State was committing all kinds of violations against trade unions and their leaders: persecution, unfair dismissal and even arbitrary detention and arrest. Detentions and arrests were the cruellest of the violations committed because they deprived a human being of liberty. Imprisoning a person for their political and trade union beliefs and activities was surely one of the most perverse forms of persecution and violated international human rights treaties. In 2016 alone, at least 292 members of KESK had been arrested by government security forces, and all the accusations made stemmed from trade union activities. Workers were guaranteed neither the respect of their rights nor minimum guarantees against anti-union activities on the part of the Government, which violated not only Convention No. 135 but also Convention No. 87. She urged the Government to revoke the state of emergency and its decrees and to reinstate democracy.

The Worker member of Sweden, speaking on behalf of the trade unions of the Nordic countries, noted that the protection of workers’ representatives against prejudicial acts, including dismissals, had been affected by the failed coup attempt and the declaration of a state of emergency. That was especially true for public servants. The state of emergency was still in force. The Government had enacted at least 23 decrees, mostly to dismiss public servants and increase government, police and military powers which, according to the Interior Minister’s recent statement, had led to the detention of 113,000 people. In addition, more than 138,000 civil servants had been suspended or dismissed without investigation or the possibility of legal challenge, many of them workers’ representatives. By Decree No. 685 of January 2017, the Government had established, for a two-year period, an inquiry commission on the state of emergency measures mandated to review the dismissals. Yet if only half of the civil servants dismissed filed an application, the commission would need to examine more than 100 files per day to complete its work within the allotted time. The speaker called on the Committee to adopt clear conclusions requesting the Government to revert to the rule of law and to provide for an effective redress mechanism for the thousands of civil servants and workers’ representatives who had been unfairly dismissed.

The Government representative recalled that 248 people had been killed and more than 2,000 injured, most of them civilians, during the 2016 coup attempt. FETO, the organization behind the coup attempt, had infiltrated the Turkish Armed Forces, the police, the judiciary, education institutions and public administration at all levels and formed a structure parallel to the State with the aim of overthrowing an elected Government and taking over the State through the use of every means, including threats, blackmail, coercion, violence and murders. If it were successful in its heinous attempt on the night of 15 July 2016, no doubt there would be many thousands of executions by the attempted coup perpetrators and the discussion of the Committee would concern murder rather than dismissals. Unfortunately, Turkey was not only facing the threat of FETO but also of other terrorist organizations such as the Islamic State of Iraq and the Levant (DAESH or ISIS), and the Kurdistan Workers’ Party (PKK). Following the failed coup attempt, the Council of Ministers declared a state of emergency as of 21 July 2016 in accordance with article 120 of the Turkish Constitution. Pursuant to article 129 of the Constitution, public servants were obliged to carry out their duties with loyalty to the Constitution and the existing laws. The same was required of public servants by virtue of Public Servants Act No. 657. Section 125 of that Act stipulated that acting in cohort with terrorist organizations or helping them or using or making available public means and resources to assist those organizations or making propaganda for those organizations was an act punishable with a dismissal. Section 137 of the Act regulated the suspension during an investigation as an administrative precaution. The fight against terrorism and against the perpetrators of the coup attempt, which aimed to abolish fundamental rights and freedoms and the free democratic order established, was being conducted in conformity with international and national law. Turkey invoked Article 15 of the European Convention on Human Rights, pursuant to which, in time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under that Convention. The coup attempt posed a serious and actual threat not only to the democratic constitutional order but also to national security. Thus, it had been necessary to take extraordinary measures to eliminate the threat as a matter of urgency. Waiting months or years for the investigations to bear results was not an option in the wake of a bloody coup attempt and in the face of imminent danger to the national security and hence, known associates and members of the terrorist organizations needed to be dismissed immediately. While there were still threats of new attempts to overthrow the Government, the Government had set up a commission to review the state of emergency decisions. That commission would review the dismissals of public servants who claimed they had been dismissed unfairly by a Decree with the force of law. Those who had been dismissed by an administrative decision had the right to apply to administrative courts. Members of the commission had already been appointed. It would start functioning as soon as it laid down its working principles and methods. Nevertheless, the commission would begin receiving applications before 23 July 2017. Decisions of the commission would be open to judicial review, the last resort being the European Court of Human Rights. In conclusion, he urged the members of the Committee as well as the international community to try to feel empathy towards Turkish people and emphasized that the right to organize and protection against anti-union discrimination was guaranteed by the Constitution and labour legislation. Both unions and workers had judicial means to contest discriminatory actions. Under the Penal Code, pursuant to sections 118 and 135, acts of anti-union discrimination by employers were considered as crimes punishable from one to three years of imprisonment. In addition, labour legislation provided for compensation and reinstatement.

The Employer members appreciated the information provided by the Government representative and called on the Government to provide it to the Committee of Experts without further delay.

The Worker members emphasized the extreme concern about the gravity and systematic nature of the infractions against workers’ representatives in Turkey. The de facto suspension of democratic institutions and the rule of law were unacceptable and were a reminder of the times when Turkey had been ruled by the military. The Government needed to urgently get back on the path to democracy. The declaration of a state of emergency did not give free rein to ignore all international obligations. Without the rule of law and due process, there could be no genuine protection for workers’ representatives. The discussion before the Committee had demonstrated how workers’ representatives had been specifically targeted in the Government’s purge of the opposition. The Government was called upon to not renew the state of emergency after July 2017 and to refrain immediately from issuing any further emergency decrees leading to the arbitrary arrests and dismissals of trade union representatives. Those who were detained or imprisoned for representing and defending the rights of workers had to be unconditionally released and afforded compensation. Among them, Nuriye Gülmen and Semih Özakça who had never committed a crime, had to be released without conditions. They were the voice of many others who were unable to speak out fearing retaliation against themselves and their families. The state of emergency had been abused to systematically dismiss and transfer workers’ representatives from their workplaces. Workers’ representatives who had been dismissed from their jobs or forcefully transferred had to be reinstated without any further delay. Any person suspected of having engaged in terrorist acts had to be charged criminally and judicial proceedings had to be initiated. However, those charges could not serve as a mean to victimize the entire public sector. Furthermore, the Government needed to address the lack of protection from retaliation before the formal recognition of a trade union. The legislative provisions protecting workers’ representation from prejudicial acts based on their status, activities as workers’ representatives, union membership, or participation in union activities had to be extended to the period during the pendency of the official recognition of the trade union. Recalling that Taner Kiliç, Chair of Amnesty International, had been recently charged with membership of a terrorist organization and was held in pre-trial detention, the Worker members called for his release and urged the Government to reinstate fundamental labour rights, including the protection of workers’ representatives.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

The Committee expressed concern over the allegations in relation to the dismissal and arrest of workers’ representatives. The Committee also noted the Government’s failure to respond to the allegations of the trade unions in its last report to the Committee of Experts.

Taking into account the discussion, the Committee called upon the Government of Turkey to:

- ensure that workers’ representatives in the undertaking are protected from prejudicial acts including dismissal and arrest, based on their status or activities as a worker representative in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements, in particular during emergency situations;

- respond to the allegations of the trade unions stating the dismissal, arrest and discrimination against workers’ representatives following the proclamation of the state of emergency.

The Committee requested that the Government provide detailed information in response to these conclusions to the Committee of Experts for examination at its next meeting in November 2017.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Article 1 of the Convention. Massive dismissals of public servants. The Committee had previously noted that following the coup attempt in July 2016, a great number of public servants, including an unknown number of trade union representatives, were dismissed on the basis of emergency decrees. In these circumstances, the Committee had requested the Government to ensure that workers’ representatives were not dismissed on the basis of their status or activities as a workers’ representative or of their union membership or participation in union activities, in so far as they acted in conformity with existing laws. In case of existence of grounds to believe that a workers’ representative had been involved in illegal activities, the Committee had requested the Government to ensure that all guarantees of due process were fully afforded. The Committee had further requested the Government to provide statistical information on the number of union representatives affected by the dismissals and suspensions based on emergency decrees. The Committee had noted the establishment, for a two-year period, of an ad hoc Inquiry Commission to review the dismissals based on the state of emergency decrees and, in this respect, noted with concern that the Commission would have to deal with a very significant caseload in a relatively short period of time. The Committee had requested the Government to ensure that the Inquiry Commission was accessible to all dismissed workers’ representatives who desire its review, and that it was endowed with the adequate capacity, resources and time to conduct the review process promptly, impartially and expeditiously. The Committee had further requested the Government to ensure that the dismissed workers’ representatives did not bear alone the burden of proving that the dismissals were discriminatory, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was justified based on other grounds. Finally, the Committee had requested the Government to provide statistical information on the number of applications lodged and processed in the Inquiry Commission and administrative courts by affected workers’ representatives and to indicate the outcome of those procedures.

The Committee noted the Government’s indication in its 2019 report that the dismissal of public servants from public service, which may include some trade union representatives, by the state of emergency decrees, was based on the grounds of their membership, affiliation or connection to terrorist organizations, following the coup attempt in 2016. The Government reiterated that after the coup attempt, it issued state of emergency decrees to eliminate the influence of terrorist organizations, such as Fethullahist Terrorist Organization (FETO), Kurdistan Workers' Party (PKK) or ISIS (DAISH). According to the Government, these terrorist organizations, in particular the one that perpetrated the said coup attempt to overthrow the democratically elected legitimate government in Turkey, established themselves within the state structure of the central and local government institutions and agencies, particularly in the armed forces, police, judiciary and educational institutions. The Government further reiterated that public servants are obliged, on the one hand, to carry out their duties with loyalty to the Constitution and the existing laws, in a manner respecting the principles of neutrality and equality, while on the other, not to join or assist any movement, group, organization or association that carry out illegal activities. It pointed out that being a public servant or a trade union member or representative or even a trade union officer does not ensure immunity from prosecution for illegal activities. The Government further explained that dismissal or suspension procedures of the public servants who were deemed to be member or affiliate of or in liaison or cohort with the terrorist organizations or the structures, entities or groups that were considered by the National Security Council as operating against the national security of the State were conducted in conformity with the provisions of the State of Emergency Act No. 2935, Civil Servants Act No. 657 and the Decrees with the force of law. The Government referred in this respect to the decision of the Constitutional Court of Turkey in a case involving the dismissal of two members of its court: “although the coup attempt was de facto prevented, taking measures in order to eliminate the dangers against the democratic constitutional order, fundamental rights and freedoms and national security, and to prevent future attempts is not only within the scope of the state’s authority, it is also a duty and responsibility towards individuals and society that cannot be postponed […] in some cases, it may not be possible for the state to eliminate the threats against democratic constitutional order, fundamental rights and freedoms and national security through ordinary administrative procedures. Accordingly, it may be necessary to impose extraordinary administrative procedures until these threats are eliminated”.

The Government explained that the Inquiry Commission was established to ensure that those affected by the state of emergency decrees enjoyed due process of law. Public servants dismissed directly by a decree with the force of law could apply to the Commission and the applicants whose application was rejected by the Commission could bring their case to the competent administrative courts. The Government reiterated that a dismissal through a decree with the force of law was a measure applied only during the state of emergency and all of the judicial recourse avenues are open against the decisions of the Inquiry Commission through the judicial system, including the Constitutional Court of Turkey and the European Court of Human Rights. The Inquiry Commission’s period of office is renewable by one year after the initial two-year period. Hence, the operation of the Commission will continue until its work has been fully carried out. All dismissed public servants, including trade union representatives, have the right to apply to the Inquiry Commission for a review of their dismissals; the only exception being the members of the judiciary whose application should be made to the judicial bodies indicated in the relevant decree and law. The Commission’s activities can be followed by the public through its announcements on its web page. The Government emphasized that the Commission undertook its work with no other intention than to protect the democratic constitutional order, the rule of law and the rights of individuals and works in a transparent manner respecting the rights of individuals. According to the Government, due process of law was functioning well and every dismissed public servant had access to legal remedies.

The Government further explained that following the examination, the Commission may dismiss or accept the application. In case of acceptance of the application concerning those who were dismissed from the public service, profession or organization, the decision is notified to the public organization/institution where the applicant was last employed for his/her reinstatement within 15 days. In case of a rejection, the applicant can have recourse to the competent administrative courts. With regard to burden of proof, the Commission demands from the relevant institution to submit the documents and information showing the applicant’s membership, affiliation or connection to a terrorist organization. If no such document and information is provided and no investigation or prosecution exists about the applicant, then the Commission accepts the application for reinstatement. The decisions of the Commission are transmitted to the relevant institution or organization, which then appoints the person whose reinstatement was pronounced. The Council of Judges and Prosecutors may bring an annulment action before the Ankara Administrative Court against the decision of the Commission and the relevant institution or organization within a period of 60 days as from the date of notification of the decision. The Committee notes in this respect that in its supplementary report, the Government indicates that six Ankara Administrative courts are designated to deal with annulment cases.

The Committee further notes that in its supplementary report, the Government reiterates that apart from its seven members, the Commission employs a total of 250 persons, 80 of whom are judges, experts and inspectors employed as rapporteurs. Following the establishment of a data processing infrastructure for the application process, the information on the applications received from 20 institutions and organizations has been recorded in this system. The Government further indicates that a total of 490,000 files, including personnel files, court files and former applications, have been classified, registered and archived.

The Government informs that 131,922 measures were taken through the state of emergency decrees, including the dismissal from public service of 125,678 persons. As of 2 October 2020, the Commission pronounced itself on 110,250 applications out of 126,200 applications received; 16,050 applications are still pending. Among these 110,250 applications for which a decision was made, 12,680 were accepted for reinstatement and 97,570 were rejected.

The Committee recalls that the Government had previously indicated that no statistical information is available on the number of trade union representatives affected and the number of applications to the courts.

The Committee recalls that Article 1 of the Convention requires the effective protection of workers’ representatives against dismissals based on their activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. The Committee further recalls that in this respect that it had requested the Government to ensure that the dismissed workers’ representatives did not bear alone the burden of proving that the dismissals were discriminatory.  While noting the updated information provided by the Government in this respect, the Committee once again requests it to provide further details on the handling of cases where workers’ representatives allege before the Inquiry Commission or the administrative court that they were subject to a dismissal based on their legitimate trade union activity or affiliation. The Committee notes with regret that no statistical information is available on the number of trade union representatives affected and the number of applications made by them to courts and points out that this information is crucial in order to assess whether the protection of workers’ representatives afforded by the Convention is effectively ensured. Noting the detailed and updated information provided by the Government regarding the data processing system established for the purpose of the Inquiry Commission, the Committee urges the Government to take the necessary measures in order to ensure that it allows retrieving information on the number of trade union representatives affected. The Committee once again requests the Government to provide this information and to indicate, in particular, the number of trade union representatives reinstated following the decision of the Commission and the number of appeals to the administrative courts, as well as the outcome of such appeals.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Turkish Confederation of Employers’ Associations (TİSK) communicated with the Government’s report.

Article 1 of the Convention. Massive dismissals of public servants. The Committee had previously noted that following the coup attempt in July 2016, a great number of public servants, including an unknown number of trade union representatives, were dismissed on the basis of emergency decrees. In these circumstances, the Committee had requested the Government to ensure that workers’ representatives were not dismissed on the basis of their status or activities as a workers’ representative or of their union membership or participation in union activities, in so far as they acted in conformity with existing laws. In case of existence of grounds to believe that a workers’ representative had been involved in illegal activities, the Committee had requested the Government to ensure that all guarantees of due process were fully afforded. The Committee had further requested the Government to provide statistical information on the number of union representatives affected by the dismissals and suspensions based on emergency decrees. The Committee had noted the establishment, for a two year period, of an ad hoc Inquiry Commission to review the dismissals based on the state of emergency decrees and, in this respect, noted with concern that the Commission would have to deal with a very significant caseload in a relatively short period of time. The Committee had requested the Government to ensure that the Inquiry Commission was accessible to all dismissed workers’ representatives who desire its review, and that it was endowed with the adequate capacity, resources and time to conduct the review process promptly, impartially and expeditiously. The Committee had further requested the Government to ensure that the dismissed workers’ representatives did not bear alone the burden of proving that the dismissals were discriminatory, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was justified based on other grounds. Finally, the Committee had requested the Government to provide statistical information on the number of applications lodged and processed in the Inquiry Commission and administrative courts by affected workers’ representatives and to indicate the outcome of those procedures.

The Committee notes the Government’s indication that the dismissal of public servants from public service, which may include some trade union representatives, by the state of emergency decrees, is based on the grounds of their membership, affiliation or connection to terrorist organizations, following the coup attempt in 2016. It reiterates that after the coup attempt, the Government issued state of emergency decrees to eliminate the influence of terrorist organizations, such as FETO, PKK or ISIS (DAISH). According to the Government, these terrorist organizations, in particular the one that perpetrated the said coup attempt to overthrow the democratically elected legitimate government in Turkey, established themselves within the state structure of the central and local government institutions and agencies, particularly in the armed forces, police, judiciary and educational institutions. The Government further reiterates that public servants are obliged, on the one hand, to carry out their duties with loyalty to the Constitution and the existing laws, in a manner respecting the principles of objectivity and equality, while on the other, not to join or assist any movement, group, organization or association that carry out illegal activities. It points out that being a public servant or a trade union member or representative or even a trade union officer will not ensure immunity from prosecution for illegal activities. The Government further explains that dismissal or suspension procedures of the public servants who are deemed to be member or affiliate of or in liaison or cohort with the terrorist organizations or the structures, entities or groups that are considered by the National Security Council as operating against the national security of the State are conducted in conformity with the provisions of the State of Emergency Act No. 2935 and Civil Servants Act No. 657 and the Decrees with the Force of Law. The Government refers in this respect to the judgement of the Constitutional Court of Turkey in a case involving the dismissal of two members of its court: “although the coup attempt was de facto prevented, taking measures in order to eliminate the dangers against the democratic constitutional order, fundamental rights and freedoms and national security, and to prevent future attempts is not only within the scope of the state’s authority, it is also a duty and responsibility towards individuals and society that cannot be postponed […] in some cases, it may not be possible for the state to eliminate the threats against democratic constitutional order, fundamental rights and freedoms and national security through ordinary administrative procedures. Accordingly, it may be necessary to impose extraordinary administrative procedures until these threats are eliminated”.

The Government explains that the Inquiry Commission was established to ensure that those affected by the state of emergency decrees enjoyed due process of law. Public servants dismissed directly by a decree with the force of law can apply to the Commission and the applicants whose application is rejected by the Commission may bring their case to the competent administrative courts. The Government reiterates that a dismissal through a decree with the force of law is a measure applied only during the state of emergency and all of the judicial recourse avenues are open against the decisions of the Inquiry Commission through the judicial system, including the Constitutional Court of Turkey and the European Court of Human Rights. The Inquiry Commission’s period of office is renewable by one year after the initial two-year period. Hence, the operation of the Commission will continue until its work has been fully carried out. All dismissed public servants, including trade union representatives, have the right to apply to the Inquiry Commission for a review of their dismissals; the only exception being the members of the judiciary whose application should be made to the judicial bodies indicated in the relevant decree and law. The Commission’s activities can be followed by the public through its announcements on its web page. Apart from its seven members, the Commission employs a total of 250 persons, 80 of whom are judges, experts and inspectors employed as rapporteurs. A data processing infrastructure for the application process has been established and all information is recorded in this system. The Commission examines cases on the basis of documents provided by the relevant public institutions. The decisions delivered by the judicial authorities are followed up through National Judiciary Informatics System (UYAP) system.

Following the examination, the Commission may dismiss or accept the application. In case of acceptance of the application concerning those who were dismissed from the public service, profession or organization, the decision is notified to the public organization/institution where the applicant was last employed for his/her reinstatement within 15 days. In case of a rejection, the applicant can have recourse to the competent administrative courts. With regard to burden of proof, the Commission demands from the relevant institution to submit the documents and information showing the applicant’s membership, affiliation or connection to a terrorist organization. If no such document and information is provided and no investigation or prosecution exists about the applicant, then the Commission accepts the application for reinstatement. The decisions of the Commission are transmitted to the relevant institution or organization, which then appoints the person whose reinstatement was pronounced. The Council of Judges and Prosecutors may bring an annulment action before the Ankara Administrative Court against the decision of the Commission and the relevant institution or organization within a period of 60 days as from the date of notification of the decision.

The Government indicates that the Commission delivers individualized and reasoned decisions in respect of approximately 1,200 applications per week. It informs that 131,922 measures were taken through the state of emergency decrees, including the dismissal from public service of 125,678 persons. As of 29 August 2019, the Commission pronounced itself on 84,300 applications out of 126,200 applications received. Among these 84,300 applications examined, 77,600 were rejected. Currently, there are 41,900 applications still pending. The Government points out that 6,700 persons were reinstated. The Government indicates that no statistical information is available on the number of trade union representatives affected and the number of applications to the courts. The Government emphasizes that the Commission undertakes its work with no other intention than to protect the democratic constitutional order, rule of law and the rights of individuals and works in a transparent manner respecting the rights of individuals. According to the Government, due process of law is functioning well and every dismissed public servant has access to legal remedies.

The Committee takes note of the information provided by the Government. The Committee recalls that Article 1 of the Convention requires the effective protection of workers’ representatives against dismissals based on their activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. The Committee further recalls that in this respect it had requested the Government to ensure that the dismissed workers’ representatives did not bear alone the burden of proving that the dismissals were discriminatory. While noting the information provided by the Government in this respect, the Committee requests it to provide further details on the handling of cases where workers’ representatives allege before the Inquiry Commission or the administrative court that they were subject to a dismissal based on their legitimate trade union activity or affiliation. The Committee notes with regret that no statistical information is available on the number of trade union representatives affected and the number of applications made by them to courts and points out that this information is crucial in order to assess whether the protection of workers’ representatives afforded by the Convention is effectively ensured. Noting the detailed information provided by the Government regarding the data processing system established for the purpose of the Inquiry Commission, the Committee urges the Government to take the necessary measures in order to ensure that it allows to retrieve information on the number of trade union representatives affected. The Committee once again requests the Government to provide this information and to indicate, in particular, the number of trade union representatives reinstated following the decision of the Commission and the number of appeals to the administrative courts, as well as the outcome of such appeals.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the report of the Confederation of Progressive Trade Unions of Turkey (DİSK) attached to it, received on 1 September 2017 concerning issues examined by the Committee in its present observation, and the Government’s reply thereto. The Committee also notes the observations of the Turkish Confederation of Employers’ Associations (TİSK) and the International Organisation of Employers (IOE) received on 31 August 2017, as well as the observations of the Confederation of Public Servants’ Trade Unions (MEMUR SEN) and the Turkish Confederation of Public Workers Associations (Türkiye Kamu-Sen) communicated with the Government’s report. The Committee takes due note of the detailed reply of the Government to the 2016 observations of the KESK and TÜRK-İŞ, and the observations of TÜRK-İŞ communicated with the Government’s report.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards, in June 2017, concerning the application of the Convention by Turkey. It takes note in particular of the conclusions of the Conference Committee in which it called upon the Government to ensure that workers’ representatives in the undertaking are protected from prejudicial acts including dismissal and arrest, based on their status or activities as a workers’ representative in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements, in particular during emergency situations, to respond to the allegations of the trade unions concerning the dismissal, arrest and discrimination against workers’ representatives following the proclamation of the state of emergency, and to provide detailed information in response to these conclusions to the Committee of Experts at its next meeting in November 2017.

Article 1 of the Convention. Massive dismissals of public servants. The Committee notes that in the course of the discussion at the Conference Committee, the Worker members referred to the dismissal and ban from public service of more than 100,000 employees under emergency decrees. They indicated that trade union officials in public institutions were systematically targeted by allegations leading to their suspension and dismissal; that the grounds for dismissal were always general, alleging membership, connection to, or communication with a terrorist organization, without any individualized justification and evidence being provided or any opportunity given to the concerned persons to defend themselves. The Committee further notes the observations of the Türkiye Kamu-Sen, indicating that a total of 48 representatives and 37 directors of its affiliate unions were dismissed under the state of emergency decrees.

The Committee notes the Government’s indication that the state of emergency was declared by the Council of Ministers and approved by Parliament on 21 July 2016 following the coup attempt of 15 July. The Government refers to the obligation of loyalty of public servants and indicates that the dismissal and suspension of the public servants deemed to be linked with terrorist organizations and structures, entities or groups operating against the national security, is conducted in accordance with the law and the decrees with the force of law. The Government emphasizes that as the coup attempt posed a serious and actual threat to the democratic constitutional order and the national security, it was necessary to take extraordinary measures to eliminate the threat as a matter of urgency. With regard to the review mechanisms available to the dismissed public servants, the Committee notes the Government’s indication that the State of Emergency Actions Review Commission was set up pursuant to Decree No. 685 dated 2 January 2017, to review the state of emergency decisions. This Commission will review the dismissals of the public servants who claim they are dismissed unfairly by a decree with the force of law. Those dismissed before 17 July 2017 – the date on which the Commission started taking applications – could apply until 14 September, and public servants dismissed after 17 July will have 60 days as of their dismissal date to apply. The decisions of the Commission are open to judicial review in competent administrative courts in Ankara and the last resort will be the European Court of Human Rights. The Government further adds that the public servants who were dismissed by an administrative decision of the public institutions or organizations have the right to apply to the administrative courts. The Committee notes the Government’s indication that there have been 35,000 cases where dismissal decisions were revised or suspension orders lifted as a result of ongoing investigations, but notes that it is not indicated which review mechanisms have been used. The Committee further notes the indications in the reports of the DİSK and Amnesty International, transmitted by the ITUC, with regard to the capacity and resources of the Review Commission. In particular it notes the indication that the Commission has seven members and a two-year mandate, and that, in order to process the caseload in that time limit, it will have to take hundreds of decisions per day.

The Committee notes that a great number of workers in the public sector, including an unknown number of trade union representatives, were dismissed on the basis of emergency decrees issued in July, August and September 2016. While some of these public servants were dismissed or suspended by administrative decisions, which were subject to review in the administrative courts, many others were dismissed directly as a result of the publication of their names in lists annexed to the state of emergency decrees. The dismissals of the latter group were not reviewable in courts and no review mechanisms existed in their regard until an ad hoc Review Commission was established and started receiving applications as of July 2017. The Committee recalls that Article 1 of the Convention requires the effective protection of workers’ representatives against dismissals based on their activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. The Committee further recalls that Paragraph 6 of the Workers’ Representatives Recommendation, 1971 (No. 143), enumerates measures that can be taken to ensure such an effective protection, including a special recourse procedure open to workers’ representatives who consider that their employment has been unjustifiably terminated, and effective remedies in respect of unjustified dismissals. The Committee recalls that there is no provision in the Convention allowing the invocation of a state of emergency to justify exemption from the obligations arising under it, and that the occurrence of circumstances such as an attempted coup does not justify the violation of the right of workers’ representatives to enjoy effective protection against acts prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities. In circumstances of extreme gravity, however, certain guarantees may be temporarily suspended on the condition that any measures affecting the application of the Convention be limited in scope and duration to what is strictly necessary to deal with the situation in question. Once the acute emergency has subsided, measures taken under the state of emergency should be immediately lifted. The Committee notes that the dismissed public servants, including trade union representatives, were definitively banned from public service, and that those who were dismissed as a result of the inclusion of their names in the lists annexed to decrees, did not initially have access to any means of defence or review mechanism. While noting that the situation in Turkey after the coup attempt was one of acute national crisis, the Committee considers that in view of the absence of minimal due process guarantees for the sanctioned workers’ representatives and the ensuing deprival of their right to access public office, the abovementioned decrees do manifestly not allow to guarantee, as provided for in the Convention, that the dismissals of workers’ representatives have not been decided by reason of their status or activities as a workers’ representative or on union membership or participation in union activities. The Committee notes that the Government has since established an ad hoc Commission which is competent to review the dismissals directly based on the state of emergency decrees and will have to deal with all cases in two or even three years, a period of time during which the dismissed trade unionists will remain deprived of their employment and of their right to access public office. While the Committee notes that the sensitive character of certain public service functions, such as the intelligence services and the armed forces, can justify more drastic measures as a matter of urgency, it considers that, with regard to other branches of public service, measures should be taken to ensure the minimal guarantees of due process. While duly noting that Turkey was in a state of acute national crisis following the coup attempt, in view of the renewal of the state of emergency for the fifth time on 16 October 2017, the Committee requests the Government to ensure that workers’ representatives are not dismissed on the basis of their status or activities as a workers’ representative or of their union membership or participation in union activities, in so far as they act in conformity with existing laws. In case of existence of grounds to believe that a workers’ representative has been involved in illegal activities, the Committee requests the Government to ensure that all guarantees of due process are fully afforded. The Committee further requests the Government to provide statistical information on the number of union representatives affected by the dismissals and suspensions based on emergency decrees.

As regards the Review Commission, the Committee notes with concern that it will have to deal with a very significant caseload in two years, which is a relatively short period of time. Recalling that compliance with Article 1 of the Convention requires that workers’ representatives who consider that their employment has been unjustifiably terminated have access to effective recourse procedures, the Committee requests the Government to ensure that the Review Commission is accessible to all dismissed workers’ representatives who desire its review, and that it is endowed with the adequate capacity, resources and time to conduct the review process promptly, impartially and expeditiously. The Committee further requests the Government to ensure that the dismissed workers’ representatives do not bear alone the burden of proving that the dismissals were discriminatory, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was justified based on other grounds. Finally, the Committee requests the Government to provide statistical information on the number of applications lodged and processed in the Review Commission and administrative courts by affected workers’ representatives and to indicate the outcome of those procedures.

Arrest of trade union representatives. The Committee notes the allegations of arrest of trade union representatives both before and after the coup attempt in the statement of Worker members before the Conference Committee, as well as in the latest observations of the ITUC. The Committee observes that these allegations pertain more closely to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and will examine them in its comments on the application of this Convention in 2018.

[The Government is asked to reply in full to the present comments in 2019.]

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations on the application of the Convention by the Turkish Confederation of Employers’ Associations (TİSK), the Confederation of Turkish Trade Unions (TÜRK-İŞ) and the Confederation of Public Employees Trade Unions (KESK) received in January 2016 and transmitted with the Government’s report. The Committee notes the numerous allegations of violations of the Convention in practice submitted by the KESK, which refer, in particular, to the cases of dismissal, transfers and disciplinary measures, as well as denial of facilities to worker representatives and regrets the absence of any reply thereon in the Government’s report. The Committee requests the Government to provide its comments on the observations made by TÜRK-İŞ and KESK.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Articles 1 and 3(b) of the Convention. The Committee notes the information provided in the Government’s report. In its last comments, the Committee asked the Government to indicate if elected workers’ representatives are protected from discrimination based on their activities by the provision applicable to shop stewards. The Committee recalls that the Government had referred to the new Act No. 4773, under which workers’ representatives would enjoy the same kind of protection as the one provided for by the Labour Act for shop stewards.

The Committee notes that the Government has transmitted a copy of Act No. 4773 and that this Act amended the former Labour Code by introducing provisions by which employees may only be terminated on valid grounds. The Committee notes that, under section 13A of Act No. 4773, activities undertaken by employees’ representatives could not constitute a valid ground for termination. On the other hand, the Committee notes that the former Labour Code, as amended by Act No. 4773, was repealed by the new Labour Act No. 4857, which was enacted on 10 October 2003. The Committee has duly taken note of the Government’s comments that the former provisions of Act No. 4773 on employment contract termination have been included in sections 18 to 21 of the new Labour Act. Nonetheless, the Committee notes that section 18 of the new Labour Act protects trade union representatives from anti-union dismissal but no longer refers to employee representatives. The Committee therefore requests the Government to indicate which legislative provision now protects elected workers’ representatives from discrimination and to submit a copy of any relevant text in this respect.

Finally, the Committee refers to its comments made under Convention No. 98 in respect of workers’ protection against acts of anti-union discrimination and, in particular, those concerning dissuasive sanctions.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report. It also notes the comments made by the Turkish Confederation of Employers’ Associations (TISK) and by the Confederation of Trade Unions of Turkey (TÜRK-IS) concerning the application of the Convention.

In its previous comment, the Committee had asked the Government to indicate if the elected workers’ representatives are protected from discrimination based on their activities by the provision applicable to shop stewards. In its latest report, the Government indicates that a new Act No. 4773, amending the Labour Act, the Unions Act and the Act governing employers-employees relations in the press sector was adopted on 8 September 2002 (entry into force on 15 March 2003), and that this new Act introduces the institution of workers’ representatives by adding a provisional article (Provisional Article 13) to the Labour Act No. 1475 which stipulates that workers’ representatives shall enjoy the same protection as provided by the Labour Act for shop stewards.

The Committee notes this information and asks the Government to transmit a copy of the new Act with the detailed information that it announces in this respect.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information in the Government's report, as well as the comments by the Turkish Confederation of Employer Associations and by the Confederation of Trade Unions of Turkey (TURK-IS).

The Committee, following its previous comments on elected workers' representatives, notes the Government's statement that, under conditions, where there is no trade union representative, freely elected workers are recognized as workers' representatives and become members of certain boards for the purposes of relevant regulations, of which examples are given. The Committee asks the Government to indicate if these elected workers' representatives are protected from discrimination based on their activities by the provision applicable to shop stewards.

With regard to the comments by TURK-IS on the protection of workers' representatives of public servants' trade unions, the Committee again refers to its comments under Convention No. 151.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee takes note of the information provided in the Government's first report, as well as the comments made by the Confederation of Turkish Trade Unions (TURK-IS) and by the Turkish Confederation of Employers' Associations. It also notes the conclusions of the Committee on Freedom of Association in Cases Nos. 1810 and 1830 (303rd Report of the Committee, approved by the Governing Body at its 265th Session (March 1996)).

The Committee notes that Act No. 2821 respecting trade unions protects shop stewards appointed by the trade union authorized to bargain collectively and trade union representatives from various types of anti-union discrimination. It further notes the comment made by TURK-IS that, where the authority to bargain collectively has not yet been assigned, workers' representatives chosen among the workers themselves are not protected. The Committee would recall in this respect that Article 3(b) define workers' representatives under the Convention as persons recognized as such under national law or practice, including representatives who are freely elected by the workers of the undertaking in accordance with provisions of national laws or regulations or of collective agreements and whose functions do not include activities which are recognized as the exclusive prerogative of trade unions in the country concerned. The Government is requested to indicate whether such workers' representatives in this sense of the term exist and, if so, the manner in which they are protected from prejudicial acts based on their status or activities as workers' representatives in accordance with Article 1 of the Convention.

As concerns the comments made by TURK-IS that workers' representatives in public sector trade unions do not benefit from the protection called for under Article 1 of the Convention, the Committee refers the Government to its comments under Convention No. 151.