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

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

A Government representative expressed his Government’s deep regret at his country being included in the final list of individual cases for Convention No. 98. The Committee’s decision undermined the credibility of the supervisory mechanism, implying that political considerations outweighed substantive and technical aspects. The decision of the Committee was contradictory since major progress and reforms had been achieved in the area of labour legislation on the basis of which the Committee of Experts had expressed its satisfaction with regard to the application of the Convention. He indicated that these legislative reforms showed the commitment of the Government to apply the Convention. The Government representative indicated that progress included amendments to the national Constitution in 2010, which had paved the way for reforms in labour legislation including the adoption of Act No. 6356 on trade unions and collective agreements, and amendments to Act No. 4688 on public servants’ trade unions, which had been sent to the ILO. The amendments to Act No. 4688 enabled representatives of civil servants to negotiate and sign collective agreements. Furthermore, the scope of unionization in the public sector had been extended by reducing the exceptions provided for in law, and following a recent decision of the Constitutional Court, the ban on trade union rights for civilian personnel working at the military institutions had been eliminated. According to the Government representative, the most important changes had been made through the adoption of Act No. 6356, which had not only replaced the trade union legislation imposed by the military, but had also created conditions for more democratic and free industrial relations. The new features of the Act included: (i) the extension of the scope of application of the right to organize to self-employed workers; (ii) the repeal of restrictions on the establishment, composition and requirements to be a founding member of a trade union; (iii) the simplification of the procedure for the establishment of trade unions; (iv) the reorganization or reduction in the number of branches of activity from 28 to 20; (v) the repeal of the requirement for notarial attestation to join or resign from a trade union; (vi) the authorization of multiple trade union memberships for workers employed at different workplaces in the same branch of activity; (vii) the determination by the trade union statute of the maximum amount of union dues; (viii) the authorization of maintenance of membership during temporary unemployment; (ix) the extension of authorized international activities of trade unions; (x) the separation of individual liability from that of the legal personality of the trade union; (xi) the financial auditing by independent chartered accountants; (xii) the strengthening of freedom of association; and (xiii) the free determination of affiliation with a branch of activity by trade unions. Furthermore, the Act had introduced major improvements for collective agreements, and had thereby addressed the comments made by the Committee of Experts in its report, namely through: (i) the enabling of multilevel collective agreements via framework agreements; (ii) the establishment of a legal framework for the regulation of group collective agreements; (iii) the guarantee of the continuity of collective agreement after a full or partial transfer of business ownership; (iv) the reduction in the scope of strike bans; (v) the lifting of restrictions on various forms of strikes, industrial actions and picketing; (vi) the immunity of trade union liability for damages at workplaces during strikes; (vii) the authorization of all confederations to be represented before the Higher Board of Arbitration; and (viii) the replacement of prison sentences by administrative fines for certain infringements included in the previous Act.

With regard to the critical observations made by the Committee of Experts regarding threshold levels and the requirements to sign collective agreements, the Government representative indicated that the new Act had amended the branch of activity threshold from 10 to 3 per cent. Nevertheless, to give trade unions time to adapt to the new conditions, the threshold was set at 1 per cent until July 2016. On the other hand, thresholds for enterprises concluding collective agreements at the enterprise level were reduced from 50 to 40 per cent of the number of workers at the workplace. Concerning the protection of trade union members, he indicated that the Act regulated the protection of trade union officials, shop stewards and individual freedom of association with reference to the relevant ILO Conventions. Furthermore, union officials and shop stewards were given an absolute right of reinstatement. Shop stewards could not be dismissed without a justified reason, which had to be clearly and precisely stated in written form in full conformity with the Workers’ Representatives Convention, 1971 (No. 135). Individual freedom of association was guaranteed in the recruitment procedure, employment and the termination of employment. In any lawsuit brought concerning the termination of an employment contract due to trade union affiliation, the burden of proof that the dismissal was not caused by trade union membership laid with the employer. It was frequently claimed, with regard to section 25(5) of Act No. 6356, that workers employed in workplaces employing less than 30 workers were excluded from special compensation for trade union violations. This statement was unfounded since it did not take into account the last sentence of paragraph 5 guaranteeing special compensation for all workers in the case of anti-union dismissal, which could not be inferior to a year’s salary. Even if workers did not bring a case to court on the basis of the provisions on protection against dismissal, they were entitled to claim union compensation, which should not be lower than the worker’s annual wage. The Government representative further stated that a case had been brought to the Constitutional Court concerning the annulment of the abovementioned provision and a decision was expected soon. His Government considered that the Committee should have awaited the implementation in practice of the new laws before including his country in the list of individual cases.

The Worker members said that they were following the events currently unfolding in the major cities in Turkey with deep concern. They condemned the disproportionate police brutality and expressed their support for those who were fighting for the application of democratic, social and trade union rights. They highlighted the fact that several trade union organizations in Turkey, supported by the International Trade Union Confederation (ITUC), had denounced the particularly frequent discrimination against trade unions in the public and private sectors. It would be helpful if the Government would indicate the procedure for examining complaints of anti-union discrimination in the public sector and would forward statistics on the examination of cases of anti-union discrimination and interference in practice in both the public and private sectors. The Government claimed only to have such statistics for the public sector. Without specific statistics on complaints made and how they had been dealt with, the Committee could not carry out its work. With regard to the public sector, the Worker members recalled that, although Article 8 of the Labour Relations (Public Service) Convention, 1978 (No. 151), provided a certain degree of leeway in the choice of procedures for settling disputes, they nevertheless needed to be quick, impartial and perceived as such by the parties concerned. The procedure for the public sector in Turkey involved submitting written or oral statements to superiors, with the possibility to have recourse to administrative proceedings as a second step. They considered that that procedure, in particular the first stage thereof, did not guarantee impartiality. The Worker members highlighted problems posed by the adoption, on 18 October 2012, of the new Collective Labour Relations Act, which applied to the private sector. The Bill eventually adopted had been rejected several times by the trade unions. According to information available, the Act contained provisions that were a regression compared to those previously in force. Regarding the thresholds for forming enterprise trade unions, the legislative reform presented new obstacles and indirectly prevented the creation of new organizations in enterprises that already had a union. It was regrettable that the Committee of Experts had not been able to undertake an in-depth analysis of the new Act.

The Worker members noted that there had been significant changes regarding collective bargaining in the public sector. The 2010 constitutional reform had introduced the right of civil servants and public employees to conclude collective agreements. Several legislative amendments, including the adoption of Act No. 6289 amending Act No. 4688 of 25 June 2001 on public servants’ trade unions, had subsequently been made in 2012 to give effect to the constitutional amendment. That Act had some positive aspects, for example, concerning the length of the bargaining period, but the effects of the changes in practice remained to be clarified. The Committee of Experts had, however, emphasized that some of its comments had not been taken into account, particularly regarding the direct participation of employers in bargaining, alongside the financial authorities, and the significant role played by bargaining between the parties. Regarding those two points, the usefulness of the General Survey on collective bargaining in the public sector was noted. The Worker members considered it necessary to ensure that the new Acts adopted did not jeopardize the principles of the Convention. An in-depth analysis of the new Collective Labour Relations Act and an assessment of whether Act No. 6289 on collective bargaining in the public service was in conformity with the Convention, Convention No. 151 and the Collective Bargaining Convention, 1981 (No. 154), and how it was being implemented should therefore be conducted.

The Employer members, recalling that Turkey had been a Member of the ILO since 1932, noted that the last time it had been called before the Committee because of the Convention had been in 2000. They drew attention to the information that the Committee of Experts had requested from the Government concerning the following: the procedure for examining complaints of anti-union discrimination in the public sector; statistical data showing progress in the efficient handling of alleged acts of anti-union discrimination; and a copy of the Collective Labour Relations Act, for the Committee to examine its contents and scope. They highlighted the legislative reform strengthening the rights of public servants and other state employees in the area of collective agreements. On the other hand, as the Committee of Experts had pointed out, there was no information on such issues as the need for legislation to guarantee direct employer participation in collective bargaining, along with the economic authorities.

The Employer members thanked the Government for the information on Act No. 6356 on trade unions and collective agreements, which was the product of social dialogue and replaced two standards on collective bargaining. Thanks to social dialogue and tripartism, the country had seen major social changes, which were reflected in the joint declaration by the social partners of 10 April 2013. Act No. 6289 on collective bargaining in the public sector and other significant changes had brought the country closer to effective compliance with the Convention. Since, as a result of those reforms, the workers and employers and their organizations now benefited from a more appropriate level of protection, it was time for the Committee to revise its assessment of the application of the Convention in Turkey. Through technical cooperation activities, the Government should soon be in a position to comply fully with its provisions.

A Worker member of Turkey indicated that his organization had been actively involved in the preparatory process of Act No. 6356, but that the final text had been the subject of various amendments without a full consensus being reached. The Committee of Experts had expressed the hope that the new Act would make the necessary amendments to the legislation, but some important amendments were still pending. The new Act abolished union compensation in the case of dismissal of workers due to trade union activities in workplaces employing 30 workers or less, which was leading to difficulties in organizing six and a half million workers. Turning to representation requirements for collective bargaining, he considered that the threshold required for collective bargaining should be kept at a level that secured the existence of independent and strong unions and should not have a negative effect on the right to organize. The new Act had decreased the 10 per cent threshold required at branch level to 3 per cent. However, the main difficulty related to the requirement for a union to represent more than half of the workers in the workplace and 40 per cent of the workers at enterprise level, which had been maintained in the new Act. In addition, while the certificate of competence for collective bargaining of unions was issued by the Ministry of Labour and Social Security, an appeal against this certificate could be launched by the employer or another trade union, and necessary arrangements had to be made in consultation with the parties concerned to overcome this problem. Turning to the implementation gaps of other fundamental Conventions, in particular the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), he pointed out that the approach to search for loopholes in the legislation to keep the union away from the workplace still prevailed and was the biggest obstacle to the effective implementation of national legislation, Convention No. 87 and other Conventions. In this context, he referred to the difficulties encountered by the Food and Tobacco Workers Union in reaching a consensus with the public employer, including through a strike covering 10,000 workers, and by the Aviation Workers Union in trying to reach a consensus to reinstate 305 of the 350 members who had been dismissed due to their trade union activities.

Another Worker member of Turkey noted the legislative amendments and indicated that while improvements had been made, as underlined in the report of the Committee of Experts, there were still enormous problems for public employees or even drawbacks with regard to the application of the Convention, despite the visit of the high-level missions to the country in 2008 and 2010. He pointed to a number of difficulties: while the Act extended the period of collective bargaining to 30 days, in practice, collective bargaining was only possible over a period of 15 days, which was insufficient; the exclusive right of the heads of the respective parties to turn to the arbitration board in the event of disagreements; the dominant position of employers in the public workers arbitration board; the absence of the right of appeal with regard to a board decision; the remaining exclusion of public servants in military institutions and security guards from the right to organize under the amended Act No. 4688 (in this regard, he referred to dismissals of members of the police trade union “Emniyet-Sen”); the lack of regulations provided in the amended Act No. 4688 to prevent double standards among trade unions; and the non-recognition of any type of collective action such as strikes for public servants. Finally, the Worker member expressed the view that the current events in Turkey were a result of the lack of social dialogue between the Government and the social partners.

The Employer member of Turkey indicated that the country had just undergone a radical reform process regarding legislation on industrial relations. The recently adopted Act on trade unions and collective agreements included significant modifications on subjects like joining and resigning from trade unions; the number of branches of activities; bans on strikes and lock-outs; and eligibility for collective bargaining. Among the achievements, which had been subject to discussions and ILO criticism for about two decades, the conclusion of framework agreements had been made possible; the requirement for Turkish citizenship in order to be a founding member of a trade union had been removed; notarial attestation to join, resign from or be expelled from a trade union had been removed; the regulation of the functioning of trade unions through their statutes and regulations had been established, enabling trade unions to pursue their statutory activities freely; limitation on membership dues had been removed; thresholds regarding branches of activity had been reduced, and eligibility for bargaining at the enterprise level had also been reduced; the scope of the prohibition on strikes had been narrowed and imprisonment was no longer a penalty for certain offences. The new Act had been prepared through a wide process of social dialogue, so that almost 95 per cent of the provisions included in the new Act reflected a broad consensus among the Turkish social partners. He further referred to the signing by the Labour Minister and a large number of social partners of a Joint Declaration in 2013, in which support was expressed for opening the Social and Employment Chapter in European Union membership negotiations was expressed in view of the substantial legislative changes that had taken place in the country. The extent of legislative reforms and the commitment of the social partners meant that the case should be removed from the list of individual cases.

An observer representing the International Trade Union Confederation (ITUC) referring also to the Public Employees’ Trade Unions (KESK) and the Confederation of Progressive Trade Unions of Turkey (DISK) stated that the current violations of trade union and human rights in Turkey restricted all aspects of freedom of association and the right to assembly. She expressed the view that the collective bargaining process in Turkey could not be addressed without considering the repressive atmosphere in the country, including repression faced by members of KESK. Examples of such repression included the travel ban on the President of KESK, who had therefore not been able to attend the Conference, the imprisonment of 89 unionists and investigations and trials on nearly all activities organized by KESK members. Some 500,000 public servants did not have the right to join or form trade unions. She went on to point to the importance of addressing trade union rights and political rights in the context of collective bargaining and their relation to other rights such as the right to join political parties of public employees, job security for all workers in the public sector and the right to child care facilities. Whereas the right to strike should be ensured in the context of collective bargaining, such a right did not exist in the public sector. Turning to the issue of representation requirements in collective bargaining, she highlighted the difficulties, including repression, encountered in representing public employees, which had led to other pro-government trade unions being more successful during the collective bargaining process. In addition, the appointment by the Government of the members of the arbitration boards for dispute settlement also implied a violation of the right to collective bargaining as the Government could directly affect negotiations. The new Act did not withdraw the thresholds for collective bargaining and the requirement for a union to represent more than half of the workers at enterprise level still existed. As a result of the 3 per cent threshold at sectoral level, 28 out of 51 unions could lose their competence certificate. That meant that 5.1 million workers covering 6 per cent of the labour force would not be able to find a union able to sign a collective agreement.

The Government member of Pakistan indicated that Turkey had ratified all the fundamental Conventions, and that the application of Convention No. 98 had been noted with satisfaction by the Committee of Experts. It was therefore disappointing to see the case included in the list of individual cases. Turkey had taken significant steps to bring its legislation in line with Conventions Nos 87 and 98. The new laws had been adopted after intense dialogue with the social partners, which demonstrated that tripartism was functioning well in the country.

The Worker member of France, referring also to Education International, underlined the importance of effective tripartite social dialogue for social justice, the fight against inequality and respect for fundamental principles and rights at work, which, as the Committee for the Recurrent Discussion had recognized during the International Labour Conference in 2012, were human rights. Respect for freedom of expression within a democratic framework was fundamental to developing social dialogue, which was far from being a reality in Turkey. She went on to point out that the Committee on Freedom of Association, in its March 2012 conclusions on a complaint presented in 2010 concerning the violation of Convention No. 98, had recalled that “no one should be penalized for carrying out or attempting to carry out legitimate trade union activity”. However, numerous trade unionists were currently in prison in Turkey or forbidden from travelling because proceedings were under way. Those proceedings were inordinately long, as could be seen from the case of 72 members and officials of KESK arrested by police and on trial since 2012. Some 22 trade unionists had spent 289 days in prison before their trials began. Although they had been released on bail, the proceedings against them were still continuing. The President of KESK had been forbidden from leaving the country because proceedings were ongoing and had therefore been unable to attend the Conference. Procedural delays were a form of harassment and intimidation of trade unionists. She emphasized that long periods of pre-trial detention constituted a violation of the European Convention on Human Rights. She considered that, under such circumstances, collective bargaining had clearly become impossible.

An observer representing the IndustriALL Global Union highlighted that Turkey had spent a very difficult year in terms of collective bargaining rights in 2012. According to national legislation, the collective bargaining process could only begin once a certificate of competence had been issued by the Ministry of Labour and Social Security. Until the enactment of the new collective bargaining legislation in November 2012, the Ministry did not issue any certificates of competence for any trade union. With this arbitrary and illegal administrative decision, the right of collective bargaining was de facto suspended contrary to the provisions of the Convention and Turkey’s Constitution. The IndustriALL Global Union had filed a complaint before the ILO with respect to that situation. According to the national legislation, trade unions that could not get a certificate of competence were disabled in collecting dues and in appointing trade union representatives, endangering the viability of trade unions and obstructing workers from enjoying their fundamental rights. In particular, workers heavily abstained from joining trade unions since the unions were not able to afford any protection to their members. He went on to state that the difficulties had not stopped with the adoption of the new Act. The new Act maintained thresholds for collective bargaining certification which still constituted barriers to the exercise of freedom of association and collective bargaining since many unions were likely to lose their certification with the creation of larger sectors. Turkey was the only country where a sectoral threshold was necessary for workplace collective bargaining and one third of union members did not have access to bargaining rights. In the meantime, workplace thresholds were still too high, creating huge difficulties for the unions. In addition, the new legislation did not provide any solution to the long-standing judicial processes resulting from the employers’ common practice of challenging the issuance of certificates of competence by the Ministry of Labour. During such legal proceedings, union members were often dismissed, as shown by many concrete cases of famous brands in the textile, chemical and metal sectors.

The Government member of Egypt stated that the Government had taken significant steps to amend national legislation so as to ensure its conformity with international Conventions. The amendments had been made within the framework of constructive social dialogue and with the participation of all of the social partners. It should likewise be noted that a new Act on collective bargaining in the public service, in line with the principles set out in Conventions Nos 87 and 98, had been adopted in April 2012 and that certain provisions of the Constitution that restricted the right to bargain collectively had been abrogated. The speaker therefore considered that the case should not be examined further by this Committee.

The Worker member of Germany stated that the acts of discrimination in the private and public sectors aimed at trade unionists were a matter of concern and discrimination against people who wanted to organize constituted a clear violation of the Convention. The situation affected not only Turkish companies but also international corporations operating in Turkey. The speaker provided examples of employees who had been intimidated because they had wanted to join unions, including on 20 November 2007 when 17 organized employees were arrested in Ankara for allegedly creating a terrorist organization which, according to the union, were baseless claims. The employees were released after 200 days in prison and the Government had provided no information in that regard. In December 2012, 11 employees were sentenced by the criminal court in Ankara to imprisonment for a period of one to six years. Those cases demonstrated the extent of trade union discrimination and were a matter of great concern which should continue to be monitored closely.

An observer representing Public Services International (PSI) recalled that in the last year, there had been unprecedented attacks on trade union rights in Turkey, including the arrest in February 2013 of 151 trade union representatives, mostly members of KESK, and the detention of 15 female trade unionists in February 2012 and of another 67 trade unionists in June 2012. Some of those arrested had since been released but others were still imprisoned without formal charges having been filed against them. She indicated that armed police raids on union offices, using excessive violence, had been reported in recent months while a few days ago, municipal workers in Ankara were threatened with dismissal if they participated in protest actions. The speaker observed that the sole intention of the new draft labour law reform was to make it increasingly difficult for unions to register and bargain collectively and that it was essentially another element of the Government’s anti-union strategy. She called upon the Government to put an end to the intimidation and harassment of trade union members and leaders, to promptly release those detained and to undertake the revision of the labour law reform.

The Worker member of the Netherlands focused her comments on three issues. First, referring to the May Day celebration, she regretted that excessive police violence used in this year’s gathering in Taksim Square had cast a shadow over the Government’s initiative to declare 1 May as a public holiday, which had been generally accepted as progress. Secondly, concerning the protection against discrimination for trade union membership and activities, the speaker stressed that collective bargaining was one of the main instruments for income redistribution and, because it was so excessively restricted in law and practice, Turkey was among the top three countries identified by the Organisation for Economic Co-operation and Development (OECD) for income inequality. It was of the utmost importance that the new law on trade unions and collective bargaining agreements effectively removed legal barriers to collective bargaining. That was the only way that the Government could align its legislation with the Convention, and it was unfortunate that the Committee of Experts had not been able to comment on the new law which would have allowed for a discussion in the Committee. Thirdly, with regard to the so-called “double threshold”, which imposed on trade unions a high requirement of representation before they could qualify for participation in collective bargaining, the speaker indicated that, from the information available, as well as the statement of the Government representative, it was understood that the double threshold still existed. It had been criticized by the Committee of Experts and by this Committee on several occasions. The percentage of required representation would be increasing from the current 1 per cent. The Committee had been asking the Government to bring its legislation into line with the Convention, which could include not increasing the representation threshold for the sector above 1 per cent. She recalled that workers in companies with less than 30 workers enjoyed less protection against anti-union discrimination. However, section 25(5) of the new Act was ambiguous and could be understood as implying that workers in small companies with less than 30 workers could no longer go to court to obtain compensation in case of unfair dismissal for trade union activities. The Government should be asked, at a minimum, to remove this blatant form of trade union discrimination as soon as possible. Economic growth should be based on a level playing field of fundamental labour standards, including Convention No. 98, which should apply to all workers.

The Government representative provided additional explanations on the various points raised during the discussion. Referring to the alleged dismissal of workers on the ground of union affiliation, he drew attention to the Penal Code and the trade union legislation providing for heavy sanctions in case of anti-union discrimination and indicated that persons who had grounds to believe that they were discriminated against due to their union activities could file a lawsuit at any time. Regarding the complaints of anti-union discrimination in the public sector, the speaker stated that measures were set out in Act No. 4688 and relevant circulars for the purpose of protecting the right to organize, avoiding any restrictions on freedom of association and ensuring sufficient protection against all types of discrimination. Section 18(2) of the Act provided that any public institution could not transfer the shop steward, trade union provincial or district representative and branch administrator to another position without stating the specific reasons for such transfer. With respect to the allegations that trade unionists were prosecuted on the grounds of terrorism as a means of systematically stigmatizing and delegitimizing trade union activities, his Government rejected these claims as completely unfounded. Turkey was a democratic country based on the rule of law and had an independent judiciary. If any trade union members had been arrested or put on trial, this was not associated with their trade union activities but rather with their involvement in violent terrorist activities or the setting up of terrorist organizations. Information received from the Ministry of Justice and the Interior showed that certain trade unionists had been arrested for breaching the Penal Code Act No. 5237, the Fighting Terrorism Act No. 3713 and the Demonstrations and Marches Act No. 2911. As for the “double threshold” system as a barrier to collective bargaining, the speaker explained that the sector-level threshold would be lowered to 3 per cent as of July 2018 but added that the Government was prepared to consider the request of the Worker members not to increase that threshold above 1 per cent. Concerning the declining number of trade unions authorized to sign collective agreements, the speaker observed that the certification of competence for a trade union to conclude a collective agreement was previously determined by reference to inaccurate and inflated statistical data provided by the trade unions themselves. The Government had introduced a new system based on cross-checking the figures of the Social Security Institute since 2009, providing more accurate figures regarding trade union membership and unionization rates. According to recent statistics, in 2013, the rate of unionization in Turkey was 9.21 per cent, which was of course lower than previously established figures. It would now be for the trade unions to intensify their efforts so as to increase the number of their members.

With reference to the incidents surrounding the May Day celebrations at Taksim Square, his Government could not accept any accusations and he indicated that the Government had opened the way for May Day celebrations in Taksim Square after a long period of prohibition. With one exception, May Day was peacefully celebrated throughout the country with 136 events in 76 provinces and the participation of 250,000 people. That year, Taksim Square was closed to mass gatherings for safety reasons due to ongoing construction works. Some marginal groups provoked violent incidents damaging public and private property but police action was at no point directed against any trade union premises or any group exercising its right to freedom of association or freedom of speech.

The Worker members emphasized the fact that the Government should be asked to submit the statistical data that the Committee of Experts had requested so that it could verify whether the procedure used for complaints of anti-union discrimination in the public sector afforded sufficient protection. As for the private sector, since the Government had said that there were no statistics available on cases of anti-union discrimination, it should be asked to implement a reliable system for identifying such cases. In addition, the Government should also provide detailed information on how the new law governing labour relations had taken account of the comments of the Committee of Experts over many years, as some of the requirements of the law appeared to run contrary to the provisions of the Convention. The Worker members concluded by emphasizing that since the collaboration between the Office and the Government had not yet produced the desired results, technical cooperation should be strengthened in order to resolve the urgent issues: removing the provisions from the law on labour relations that could result in discrimination between workers in small and large enterprises; not increasing the threshold that had been set for the establishment of trade unions, given that the Government had expressed its goodwill in that regard; and removing the obstacles to freedom of expression and trade union industrial action.

The Employer members appreciated the progress that had been made in terms of labour legislation, particularly as it was the result of tripartite social dialogue. However, additional information was required, including specific statistical data, in order to determine the extent of the problem in the public sector. In addition, the legislation should be amended in consultation with the social partners to be in full conformity with the Convention. To that end, the Government should accept technical assistance from the Office, undertake to gather the information that had been requested and send a detailed account in time for the forthcoming session of the Committee of Experts.

Conclusions

The Committee took note of the oral information provided by the Government and the discussion that ensued.

The Committee noted that the outstanding issues concerned numerous allegations of acts of anti-union discrimination in both the public and private sectors and the national mechanisms available to enable complaints about such acts, as well as the need to ensure a legislative framework for free and voluntary collective bargaining.

The Committee noted the information provided by the Government concerning the adoption of the law on trade unions and collective agreements No. 6356 and the law concerning collective bargaining in the public service No. 6289, adopted in the spirit of tripartism and intensive social dialogue, as well as with ILO standards as a main reference point. It further observed the Government’s enumeration of a number of provisions that were brought into closer conformity with the Convention. The Government also stated that the comments of the workers’ representatives concerning the double threshold system would also be taken into consideration.

The Committee welcomed the elements of progress that had been observed in this case through the adoption of the law concerning collective bargaining in the public service but further noted the need to intensify efforts related to certain categories of public service workers who were not covered by this law as well as other limitations to collective bargaining in the public sector. The Committee expressed the firm hope that the legislation, and its practical implementation, would ensure fuller conformity with the Convention and invited the Government to avail itself of the technical cooperation of the ILO in this regard. In particular, the Committee requested the Government to establish a system for collecting data on anti-union discrimination in the private sector and to ensure the removal of any ambiguities in the new legislation in light of its assessment by the Committee of Experts. The Committee requested the Government to provide all relevant information, including as regards the functioning of national complaints mechanisms and all statistical data related to anti-union discrimination in the private and public sectors. Finally, the Committee requested the Government to supply a detailed report to the Committee of Experts for examination at its next meeting this year.

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative noted the observations of the Committee of Experts with respect to protection against anti-union discrimination, limitations on collective bargaining, the right to organize for public servants, and collective bargaining rights of workers in export processing zones (EPZs).

With regard to anti-union discrimination, he recalled that the Government had submitted with its latest report the copies of several judicial decisions which, in the words of the Committee of Experts, showed that compensation in cases of various acts of anti-union discrimination was granted quite frequently. He pointed out that in such cases, section 31 of the Trade Unions Act provided a compensation of not less than the total amount of the worker's annual salary. This amount could also be increased by contract or collective agreement or by the ruling of a court. This was neither a fixed amount, nor did it affect the rights of the worker concerned under labour legislation or any other law.

Turning to the issue of alleged limitations on collective bargaining, he recalled that the Committee of Experts had noted that legislative limitations on collective bargaining did not appear to be observed by organizations of workers which, in practice, were free to pursue free collective bargaining. In this respect, he informed the Committee of the preparation of two draft bills amending several Acts, including the Trade Unions Act (No. 2821) and the Collective Agreement, Strike and Lockout Act (No. 2822), which took into account the Committee of Experts' comments in order to promote freedom of association and collective bargaining in Turkey. These two bills had been communicated to the social partners for their views and a meeting had been held on 30 May. Consultation with the social partners would continue in the coming weeks. These draft bills provided for the improvement of collective bargaining rights and workers' protection against acts of anti-union discrimination. For example, in order to give legal status to the already existing active involvement of confederations in coordinating bargaining activities of their affiliates, the proposed amendment empowered them to conclude basic agreements at the national level with a view to setting broad-based standards as guidelines for their affiliates' bargaining activities. The proposed amendments also introduced definitions and legal clarity with regard to "group (multi-employer) collective agreements", which in practice performed the function of industry-wide agreements.

With respect to the issue of dual criteria for determining the representative status of trade unions for collective bargaining purposes, he pointed out that the Government had proposed to the social partners in the above draft bill the lifting of the requirement of 10 per cent membership of the union in the relevant branch of industry. If this provision was accepted by the social partners, a trade union that had the majority of the workers at the workplace would have representative status for bargaining purposes. The final form of the proposed legislation would depend on the response of the social partners and the parliamentary process.

On the issue of the right to organize for public servants, he indicated that the draft bill on public servants' unions had not been enacted due to the request of opposition parties for its revision and the holding of general elections in Turkey. A new draft bill was now on the agenda of the Parliament and was currently being debated at the Parliamentary Committee on Planning and Budget. He drew the present Committee's attention to the fact that the draft bill submitted by the Government had already been amended by the Parliamentary Committee on Health and Social Affairs and that it might be further amended before its enactment.

With regard to the question of EPZs, he informed the Committee that an amendment had been proposed to repeal the provisional article 1 of Act No. 3218 of 1985 on export processing zones. With the abrogation of compulsory arbitration, which had only been imposed for a ten-year period, there would be no restriction on the collective bargaining rights of workers employed in EPZs.

He emphasized that Turkey attached great importance to the involvement of workers' and employers' organizations in formulating and implementing the measures envisaged by Convention No. 144. In fact, a bill on the establishment, working methods and principles of the Economic and Social Council had been prepared through consultations with the social partners and was currently on the agenda of the Council of Ministers. When enacted, the draft bill would give a legal status and strengthen and institutionalize the social dialogue system at the highest level, a practice which had already been in effect since 1995 under several government circulars. In conclusion, he informed the Committee that an Agreement for Cooperation between the ILO and Turkey would be signed very soon, which would provide for the continued good cooperation between the ILO and the Turkish constituents with regard to the promotion of the four strategic objectives of the Organization.

The Employer members noted that the Committee had discussed the case of Turkey 18 times in the last 20 years, making this the most discussed case before the Committee, a fact which was, however, no indication of the seriousness of the case in comparison to other cases. Employer members stressed that in relation to this case the Government representatives had always appeared in the Committee and that the Committee had always noted progress in the matters addressed by the comments of the Committee of Experts.

Turning to the contents of the case, they took note of the number of judicial decisions made in relation to Articles 1 and 3 of the Convention which showed that compensation in cases of various acts of anti-union discrimination was granted quite frequently. The compensation provided in such cases was not less than the total amount of the worker's annual salary, an amount which the Employer members considered as quite high. In this regard, the Committee's conclusions should reflect that the Committee of Experts had not criticized this point, but had only requested the Government to continue to provide information on this matter.

As concerns the issue of the prohibition of collective bargaining for confederations, the Government had explained in its report that the heterogeneous structure of confederations had made it difficult to conclude agreements along vertical lines, but that the active involvement of the confederations in the bargaining process was a widely accepted practice. In this respect, the Employer members were of the opinion that it was more important to note that such collective bargaining was indeed carried out in practice, rather than to examine the existence of legal provisions which were not applied. As to the constitutional provision stipulating that no more than one agreement might be concluded for an establishment or enterprise within a given time span, they noted that industry-wide bargaining existed in practice and that collective labour agreements covered whole branches of activities.

With regard to the ceilings imposed on indemnities through law, but which, however, could be increased through negotiation, the Employer members stated that this was in their view a normal approach to the matter. They noted that the amount of such indemnities was one month's salary per year of service, which was higher in some cases than indemnities paid in more developed countries. They believed that the Committee of Experts' comment on this point was more on general aspects of Article 4 regarding the promotion of collective bargaining. The Employer members wished to recall once again the importance of the functioning of collective bargaining in practice.

Referring to the issue of the right to organize for public servants, the Employer members noted that the draft bill on public servants' trade unions had failed to be approved, and that new proposed legislation on this question had been submitted to Parliament.

On the issue of criteria contained in legislation determining the representative status of trade unions for collective bargaining purposes, they noted that this was a question well-known to the Committee. They noted that the Government was in favour of amending the relevant provisions, but that the social partners had rejected this proposal. Nonetheless, legislation which imposed criteria for determining the representative status of trade unions for collective bargaining purposes was in violation of the Convention, it was the Government's obligation to bring such legislation in line with the requirements of the Convention. In this respect, the Employer members criticized the fact that while the social partners had blocked attempts to amend the legislation in question, Turkish workers' representatives continued to raise this issue at the Committee.

With regard to the question of imposed compulsory arbitration in EPZs for the settlement of collective labour disputes, they noted that the relevant legal provisions would soon expire.

The Employer members welcomed the establishment of a tripartite committee with a mandate to examine labour legislation and to propose amendments where necessary. In conclusion, the Employer members stated that the Government should be requested to continue to supply information, in particular on measures taken to remove any discrepancies which still might exist between existing legislation and the requirements of the Convention.

The Worker members thanked the Government representative for the information provided and his willingness to discuss the case in an open and frank manner. They hoped that this positive attitude would translate into real progress over the next year. This case, which had been discussed on many occasions in the past, offered both gratifying and frustrating aspects. It was gratifying when significant progress was made, such as the ratification of Convention No. 87 in 1993. However, it was also frustrating when anticipated progress failed to materialize. This tension had been reflected in the observation by the Committee of Experts. With regard to the application of Articles 1 and 3 of the Convention dealing with anti-union discrimination, the Committee of Experts had appeared to indicate that some progress had been achieved, but had requested the Government to report on the adoption of the new legislation promised in its previous report. Unfortunately, the Government representative had indicated that the new legislation was still pending before Parliament. The Worker members noted that, according to the Committee of Experts, a number of legislative restrictions on collective bargaining remained which had been in place for many years and conflicted with Article 4 of the Convention, despite indications from the Government that they would be lifted. These restrictions included the prohibition of collective bargaining for confederations, the constitutional restriction of one collective agreement per enterprise and the dual criteria for determining the representative status of trade unions. The current legislation gave the Ministry of Labour the power to certify the competency of trade unions before they could even begin negotiations. These powers were often used in an arbitrary manner and resulted in inappropriate delays in the bargaining process. The Worker members reminded the Government that it should be for the parties themselves to determine the level of bargaining and that the law should promote bargaining, rather than merely envisioning the possibility of collective bargaining. They added that the dual criteria for the representativeness of trade unions resulted in practice in the workers in many sectors not being covered by collective agreements as a result of disputes concerning the representativeness of their trade unions. However, despite the substantial legal restrictions on collective bargaining, the Committee of Experts had noted that some of these restrictions appeared to be ignored in practice, leaving workers' organizations to pursue collective bargaining relatively freely. While the Worker members did not completely accept this view, they observed that if it were indeed the case it was difficult to understand why the Government refused to change the laws to reflect the practice. While understanding that parliamentary process often moved slowly, they recalled that it had been stalled for many years and the credibility of the Government was beginning to be called into question.

They also expressed frustration at the lack of progress in the adoption of the Bill on public servants' rights to organize and bargain collectively, which had also been stalled for many years. They hoped that the Bill was fully consistent with the Convention and ensured full collective bargaining rights to public servants, with the sole possible exception of those engaged in the administration of the State. The reference by the Committee of Experts to the recommendations of the Committee on Freedom of Association in a case concerning restrictions on the right of public servants to bargain collectively and government intervention in the collective bargaining process suggested that some concerns remained about the Bill. The Worker members therefore reminded the Government once again that the Convention required collective bargaining to be promoted, not merely envisioned or tolerated. With regard to export processing zones (EPZs), the Committee of Experts had requested the Government to take all the necessary steps to ensure the voluntary nature of collective bargaining in all EPZs, which were growing in numbers in Turkey as in many other countries. There were currently 17 EPZs in the country, employing 15,000 workers, with plans to establish another eight in the near future. It was particularly disturbing that not a single worker in these zones belonged to a union. Without trade union access to EPZs, workers could not enjoy any collective bargaining rights whatsoever, even though the ten-year period during which compulsory arbitration was imposed had come to an end in a number of EPZs. The Worker members called upon the Government representative to comment on this matter. The Worker members welcomed the progress which had been made in Turkey since the early 1980s in respect of the basic rights of workers. However, the Government appeared to have taken a pause. They therefore urged it to resume the progress of bringing its laws into compliance with its practice in the case of legal restrictions on collective bargaining and into full compliance with the Convention in general. While welcoming the spirit of dialogue shown by the Government representative, they emphasized that it was necessary for the promised changes to be finally put into practice. They also urged the Government to give serious consideration to accepting the ILO's offer of technical assistance to facilitate the elimination of the remaining obstacles to the application of the Convention.

The Worker member of Turkey also thanked the Government representative for the information provided, but recalled that the application of the Convention by Turkey had been examined by the Committee on 14 occasions since 1983. Although the power of the working people in his country was very effective in mass demonstrations, marches, rallies and industrial reaction, the problems relating to the legislation persisted because this power was not directly reflected in the political arena. He emphasized that the Trade Unions Act did not provide effective protection against anti-union discrimination, since the onus of proof rested with the victim. Moreover, the number of clandestine workers in Turkey was widely estimated at over 4.5 million, with another 750,000 illegally employed foreign workers, who were unable to go to the courts against employers in the event of their dismissal due to trade union activities. He added that, since Turkey had not brought its legislation into harmony with the Termination of Employment Convention, 1982 (No. 158), any attempt to exercise the right to organize met with the severest form of anti-union discrimination. He welcomed the fact that the Government recognized the discrepancy between national legislation and the Convention with regard to the prohibition of collective bargaining for confederations. The next step was to eliminate the discrepancy. The Government also accepted that the requirement of only one collective labour agreement in a workplace or enterprise was in violation of the Convention. Another provision which was in breach of the Convention was section 3 of Act No. 2821, which established the requirement to negotiate on behalf of all the workplaces of an enterprise. This meant that it was not possible to organize workers in only one of an enterprise's workplaces and negotiate on their behalf. Contrary to the Government's claims, he also stated that it was not legally possible to conclude industry-wide collective agreements. He added that industry-wide bargaining and group bargaining were different practices which only coincided very infrequently. In his country, the lack of industry-wide bargaining had left thousands of employees outside the scope of collective agreements in the banking and sea transport sectors. Furthermore, the restriction on the right to bargain collectively was not limited to the imposition of a ceiling on indemnities. Article 5 of Act No. 2821 stated that provisions contrary to the regulatory provisions of laws or regulations could not be included in collective labour agreements. Under this provision, any attempt to provide job security through collective bargaining, in accordance with Convention No. 158, was considered null and void. Indeed, the parties to such an agreement faced imprisonment. He also indicated that the 60-day time limit violated Convention No. 98 and should be repealed. Despite the Government's claim that strike action was entirely open-ended, he said that there was another 60-day time limit on the exercise of the right to strike after the decision had been taken to call a strike. If the strike was not initiated in that period, the right to strike was cancelled.

He reiterated that the whole of Turkish labour legislation had to be brought into harmony with ratified Conventions. While the Ministry of Labour preserved its power to issue certificates of competence to permit collective bargaining, while membership required the endorsement of the public notary and while only one collective agreement could be in force in each establishment, the repeal of the 10 per cent threshold would only lead to further problems. With regard to the right of public servants to bargain collectively, he emphasized the obligation under Convention No. 98 to promote collective bargaining for all public servants not engaged in the administration of the State. It needed to be taken into account in this respect that the term "public servants" in his country covered such categories of public workers as nurses, teachers, gardeners, clerical workers and train operators, who were deprived of many basic rights and freedoms. In Case No. 1989, the Committee on Freedom of Association had called upon the Government to refrain from having recourse to intervention in the bargaining process for public servants. However, over a year after these recommendations had been issued, they had not yet been honoured.

Turning to the issue of compulsory arbitration, with special emphasis on EPZs, he pointed out that the ILO supervisory bodies limited the prohibition of the right to strike to essential services in the strict sense of the term. In this respect, he emphasized that the petroleum, banking, mining, transport, supply and distribution of food and education sectors were not essential within the above meaning, yet in some of these sectors strikes were prohibited and disputes referred to compulsory arbitration in his country. For many years, the Turkish Government had been maintaining that restrictions on the right to strike were in accordance with the ILO's case law concerning essential services. Yet, the excessively broad interpretation applied to this criterion by the Government was illustrated by the recent suspension of strikes in tyre factories on the grounds that they were prejudicial to national defence. Moreover, compulsory arbitration was not limited to cases of the suspension of strikes. The wide range of restrictions and bans on the right to strike in his country led to compulsory arbitration in the case of interest disputes, as recalled by the Committee on Freedom of Association in Case No. 1810. With a view to attracting foreign companies, strikes and lockouts were not allowed for ten years following the establishment of EPZs. Any disputes occurring within the context of collective bargaining during that period had to be resolved by the Supreme Arbitration Council. This was in contradiction with the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. In conclusion, he stated that quite efficient tripartite structures existed in Turkey and that the Government had promised during the course of negotiations to resolve these problems. It was to be hoped that these promises would be honoured in the near future, that the necessary changes would be made in law and practice and that the case of Turkey would not have to be examined by the Committee in the years to come. He therefore urged the Government to take the necessary measures to eliminate the discrepancies between national law and practice and the Convention.

The Worker member of Sweden, speaking on behalf of the Nordic Worker members of the Committee, referred in the first place to the prohibition on collective bargaining by confederations in Turkey. The Government had explained that the heterogeneous structures of Turkish confederations made it difficult to conclude agreements along vertical lines. However, she emphasized that the main issue was not the structures of the confederations or their possible effects on their suitability to carry out collective bargaining, but the fact that they had been deprived of their collective bargaining rights in contravention of the Convention. The right to decide if, how, when and where collective bargaining should be carried out by confederations had to be left to the confederations themselves and their affiliates. They would be well able to determine how to distribute responsibility for collective bargaining amongst themselves, as was the practice in most other countries. She therefore welcomed the statement by the Government representative that the law would be changed on this issue. She also drew attention to the question of the right to organize of public servants and emphasized that the right to organize and to collective bargaining were fundamental rights, to which there should not be any exceptions at all. She supposed that the Government feared that the recognition of these rights would lead to extensive disputes in the public sector, and would harm society. She pointed out that there were different ways of securing the right to bargain collectively and the right to strike, while avoiding negative consequences in areas defined by the ILO as being essential services. For example, in her own country, an independent body had been established, composed of the parties concerned, which decided whether a strike endangered the life and health of the citizens. Due to the fact that the unions had ensured that strikes did not cause such harm, the body had never needed to take such a decision. She therefore emphasized that the recognition of collective bargaining rights did not automatically endanger society and expressed the view that there should be no restrictions on collective bargaining rights, including for public servants, irrespective of whether they worked at the local, regional or national level. If the social partners were trusted by being granted their full rights, they would assume their responsibilities and organize their activities in a serious and sensitive manner. She therefore called upon the Government to give the organizations of public servants full collective bargaining rights without exceptions.

The Government representative recalled that, unlike some other countries, the Turkish system of trade unions was based on the registration of trade union members. This tradition had a long history and had been introduced to counter the inflated membership figures given by some trade unions. He also drew attention to the statement by the Worker member of Turkey that the repeal of the 10 per cent requirement might cause tension and emphasized that, while the Government was willing to repeal this measure, it was first necessary to achieve consensus among the social partners before doing so. He added that, although collective bargaining was undertaken freely in Turkey, the process was often slow. It had been for this reason that the 60-day limit had been introduced. However, this limit did not mean that negotiation could not continue subsequently. He also reaffirmed that trade unions could have access to EPZs, including the right to organize and to collective bargaining. However, if disagreements occurred during negotiation, arbitration was imposed with a view to preventing strikes. Once again, the provisions respecting compulsory arbitration in EPZs were due to be repealed.

With reference to the statement made by the Worker member of Turkey concerning job security, he explained that cases of dismissal were in practice referred quite commonly to the courts and gave rise to judicial awards. He added that the Constitution provided that no more than one agreement could be concluded for an establishment or enterprise within a given time span. He explained that the dual system of industry versus establishment-level bargaining which had existed before 1983 had led to various difficulties and abusive practices involving the conclusion of successive local agreements under the pretext of industry-wide authorization. He stated, as recalled by the Committee of Experts, that industry-wide bargaining did exist in practice and that collective labour agreements covering a whole branch of activity were concluded in several industries. He cited figures showing that many industries were in fact covered by multi-employer agreements.

With regard to the question of ceilings on indemnities, he noted that the only indemnity on which a ceiling was imposed was severance pay. Under the Labour Act, severance pay amounted to 30 days' salary for each year of service. However, such indemnities could be increased by collective agreement, and in practice many agreements specified 45 or 60 days' pay for each year of service. In order to avoid excess, it had become necessary to impose a ceiling. A similar situation had occurred with bonuses, which amounted to one month's salary. Their number had been increased through bargaining from four to as many as 12 bonuses a year, thereby doubling wages. It had therefore proved necessary to establish a legal limit of four bonuses a year.

Turning to the issue of the right to organize of public servants, he referred to the draft legislation respecting public servants' trade unions and noted that many unions were active among public servants and engaged in collective bargaining in the municipalities. However, the social balance agreements had encountered problems in view of their implications on the state budget. Agreements would be concluded with public servants, but questions still needed to be resolved concerning the financial aspects of such agreements. With reference to the suspension of the strike by rubber workers, he noted that the strike could be postponed for 60 days. The dispute could be referred to arbitration, but the workers concerned had appealed to a higher level court. He was pleased to be able to inform the Committee that the parties to the dispute had now reached agreement. In general terms, although the recognition of the right to organize of public servants was on his Government's agenda, delays had been experienced due to the lengthy process of adopting legislation, especially in cases where there were conflicts of interest. The process had also been delayed by the General Election and the Presidential Election, as well as by the fact that the Government had been engaged in a number of major reforms, including the long-awaited reform of the social security system and the introduction of an unemployment benefit system. He noted in this respect that many changes to the labour legislation had been adopted since 1986, all of which had been a result of the comments and criticisms made by the ILO. He expressed gratitude for the important contribution that the ILO had made to the development of the social system and legislation in his country and was sure that the trend would continue. He mentioned in this respect two pieces of draft legislation which he would refer to the ILO once the response of the social partners had been received with a view to improving the text and when they had been translated. He added that a draft agreement had been reached concerning cooperation between the ILO and his country which covered four strategic areas.

He recalled that his country had a fairly well-developed industrial relations system and hoped that, by improving the legislation respecting trade unions rights and collective bargaining, it would be possible to avoid his Government having to appear before the Conference Committee once again. Finally, he informed the Committee that his country had recently ratified the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), and that the instrument of ratification of the Worst Forms of Child Labour Convention, 1999 (No. 182), had been submitted to Parliament for its approval of the ratification. Following agreement with the social partners, a further 15 Conventions were being considered for ratification, most of which concerned maritime issues.

The Employer members observed that although certain legal restrictions remained which were not in accordance with the Convention, most of these were not actually implemented and people generally acted as freely as they wished in such areas as collective bargaining. The Employer members believed that, in practice, this situation was to be preferred to cases in which all the legislation was in conformity with the Convention, but was in fact widely violated. They observed that over the years a number of small steps had been taken to bring the situation into greater conformity with the Convention and they expressed the belief that the Government would continue this process. They also considered that the manner in which the Committee had treated this case, which it had examined on 18 occasions over the past 20 years, had contributed to the progress which had been made. On the question of essential services, they recalled that this matter was not covered by Convention No. 98, although the Committee of Experts had developed an interpretation respecting such matters in the context of Convention No. 87 regarding possible restrictions on the right to strike. In conclusion, they recognized the progress which had been made and looked forward to further positive measures.

The Worker members noted the statement by the Government representative that trade unions in Turkey in practice had access to EPZs. However, they emphasized that not one single worker in any EPZ in Turkey belonged to a union or enjoyed the right to collective bargaining. The situation therefore violated the provisions of the Convention. They expressed the hope that the new draft legislation would recognize the full collective bargaining rights of all workers, including public servants, with the sole possible exception of those engaged in the administration of the State. While recognizing the progress that had been made in the application of the Convention since the Committee first examined the case in the early 1980s, they regretted that little progress had been made over the past few years in bringing national law and practice into line with the Convention. They added that no blame should be attached to the social partners in this respect and emphasized that it was the responsibility of the Government to take positive measures, with the technical assistance of the ILO, to achieve concrete progress.

The Committee took note of the statement made by the Government representative, as well as the discussion which took place thereafter. The Committee recalled that this case had been discussed by the Conference Committee on a number of occasions and pointed out once again that the Committee of Experts had been insisting for several years now on the need to eliminate restrictions on collective bargaining resulting from the double criteria for representativeness imposed on trade unions for collective bargaining, the importance of granting workers in the public sector the right to bargain collectively and the need to lift the imposition of compulsory arbitration for the settlement of collective labour disputes in all export processing zones. Recalling the Government's previous indication that legislation was being drafted to promote free collective bargaining between civil servants' associations and state employers, the Committee expressed the firm hope that such legislation would be adopted in the near future so as to ensure that Article 4 of the Convention also applied to this category of workers, with the sole possible exception of public servants engaged in the administration of the State. The Committee urged the Government to take the necessary measures to eliminate the discrepancies in the legislation so as to achieve full conformity with the Convention and asked the Government to supply a detailed report to the Committee of Experts on the concrete measures taken in this regard. It noted that draft bills amending the legislation in force were being discussed with the employers' and workers' organizations or submitted to Parliament. The Committee took note of the draft agreement for cooperation between Turkey and the ILO.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

The Government has supplied the following information:

The Government would like to inform the Committee that a bill amending Public Servants Act No. 657 was enacted by Parliament on 12 June 1997 (Act No. 4275) and came into force as of 17 June 1997. This Act inserts a new article 22 into Act No. 657 to read as follows:

"Public servants may establish and join trade unions and higher-level organizations in accordance with the provisions of the Constitution and its specific legislation."

The adoption of Act No. 4275 should be regarded as conclusive of the ongoing efforts to bring the national legislation in conformity with the Turkish Constitution as amended by Act No. 4121 of 23 July 1995. The specific legislation concerning the public servants' trade unions to which reference is made in the new article 22 of Act No. 657 has been in the pipeline for some time. For procedural necessities, after the formation of a new Government in early July 1997, a draft bill concerning public servants' trade unions has been prepared by the Ministry of Labour and Social Security and communicated again to the Ministries, as well as to the social partners to have their comments and views before it is resubmitted to Parliament. The draft bill may be laid open to further discussion, if the need arises, within the Government and between the Government, social partners and other related parties before its submission to Parliament.

A further step taken on this matter was the issuance of a circular dated 20 November 1997, by the Office of the Prime Minister to all governmental organizations and agencies which referred to Turkey's contractual obligations under ILO Conventions Nos. 87, 98 and 151 and to the ongoing legislation in preparation and ordered:

-- to make the necessary deductions on the payrolls for the union membership fees;

-- to avoid bringing obstacles against the creation of new organizations and their activities;

-- to avoid banning the convening of their general congresses, the distribution of informative documents about their organizations and activities or the organization of social, cultural and artistic activities for the members;

-- to stop subjecting the union executives to disciplinary proceedings for their union-related activities;

-- to stop all law enforcement interference into legitimate union activities;

-- to establish dialogue and cooperation with the unions to take their opinions and proposals;

-- to extend all necessary care, sensitivity and good offices at all levels to the union activities of the public servants employed at governmental and other public agencies.

As an indication of its determination to improve the legislation concerning labour relations, the Government would also like to inform the Committee that Act No. 4277 dated 26 June 1997: (i) lifted the ban on the political activities of the trade unions and their confederations (article 37 of Act No. 2821); (ii) repealed the first paragraph of article 39 of Act No. 2821, which prohibited the nomination of candidates by trade unions and confederations to the organs of public occupational and professional organizations or their higher bodies, and any activity or propaganda for or against any of the candidates; and (iii) abolished the audit of the trade unions and confederations by the Government (article 47) and abrogated the requirement of depositing the revenues within 30 days of receipt in a bank where the State holds more than half of its capital as prescribed in article 43.

Regarding the protection against acts of anti-union discrimination, the Government refers the Committee to articles 29, 30 and 31 of Act No. 2821 and the sanctions stipulated therein. (The texts of Act No. 4277 of 1997 and the circular of 20 November 1997 have been sent to the ILO.)

In addition, a Government representative recalled that the report of the Committee of Experts concerning the application of the Convention by his country addressed four issues: the alleged insufficiency of the protection of workers against acts of anti-union discrimination; certain limitations on collective bargaining; the alleged denial of collective negotiation rights of public servants; and the collective bargaining rights of workers in export processing zones (EPZs).

With regard to the allegation that protection against acts of anti-union discrimination at the time of recruitment was insufficient and that the burden of proof rested with the worker, he specified that the fine envisaged in such cases was not less than half of the prevailing monthly wage. Although, according to the general principles of law, the burden of proof rested with the plaintiff, an amendment made to Act No. 2822 in 1988 stipulated that communication to the employer by the union of a worker's acquisition of membership should be delayed until it could have no adverse effect at all on the right to organize and bargain collectively. In the event of the dismissal of a worker due to union-related activities, in addition to the rights conferred by labour legislation, such as severance indemnities and notice pay, the employer was required to pay compensation which was not less than the worker's total annual wages. This compensation was payable not only in the case of dismissal, but also for other acts of anti-union discrimination, for example with regard to the distribution of work or promotion. He added that various rulings by the courts showed that this type of compensation was granted more frequently than had been claimed in the report of the Committee of Experts. Copies of these judicial decisions would be forwarded to the Office. He also explained the specific protection provided for trade union officials, which included their reinstatement in their previous or similar jobs within one month of their request for reinstatement provided they applied to their previous employer within three months of losing their positions in the trade union. The relevant legal provisions and the many judgements handed down by labour courts attested to the protection contained in Turkish law. However, until the adoption of enabling legislation consistent with Convention No. 158, shop stewards were the only category granted complete job security, including reinstatement. Work was under way on the formulation of the necessary legislation, which envisaged placing the burden of proof on the employer.

With regard to the alleged limitations on collective bargaining in the country, and particularly the statement that confederations were prohibited from collective bargaining, he affirmed that, in the same way as national trade union centres in many other countries, confederations were horizontal structures whose main motive was to represent labour movements at the national and international levels. Their heterogeneous structure did not lend itself to collective bargaining along vertical occupational or industrial lines. They could, however, coordinate the bargaining activities of their affiliates or even play an effective role in the conclusion of collective agreements. In response to the statement that industry-wide bargaining was not permitted, he pointed out that, although not mentioned as a distinct level of bargaining in the legislation, multi-employer agreements often covered large segments of the same industry and as such served the same function as industry-wide bargaining. On the other hand, enterprise agreements, particularly in the public sector, could cover a whole industry, such as the railways. Nevertheless, it was true that only one collective agreement was permitted at a given level. He specified that the dual system of industry and establishment-level bargaining which had existed before 1983 had led to various difficulties and abusive practices involving the conclusion of successive local agreements. Moreover, Act No. 2822 envisaged the extension by the Government of collective agreements to other workplaces throughout an industry, provided they fulfilled certain conditions.

Turning to the question of alleged ceilings on indemnities, he stated that the only ceiling imposed was on the severance indemnity. As a result of the absence of job security in the past, the provision of enhanced income security to workers in the event of dismissal had resulted in severance indemnities being increased to unprecedented levels through collective bargaining. A ceiling had therefore been applied by law, which was raised every six months according to certain criteria. Even so, workers appeared to enjoy rights in this respect which were greater than in many other countries. Moreover, no ceiling had been applied to notice pay, which had been raised to extremely high levels in some major collective agreements.

With regard to the limitation on the duration of collective negotiations, which could only last up to 60 days, he said that, following that period, the parties were free to continue negotiations during the mediation stage, as well as during strike action, which was entirely open-ended.

On the question of repealing the double criteria required for the granting of bargaining authorization, the Government was continuing to endeavour to address the issues, but needed to seek the consent of the social partners to do so. The employers had expressed their willingness to lift the double criteria, but the labour confederations had not yet reached a consensus on its abolition.

With reference to the right to organize and collective bargaining of public servants, he stated that the draft Bill formulated in accordance with Convention No. 151 and the Turkish Constitution, as amended in 1995, had been submitted to the Grand National Assembly. In addition to guaranteeing freedom of association for public servants, the Bill envisaged judicial appeal mechanisms and an impartial conciliation board. The provisions of the Bill had been debated extensively in Parliament and nearly half of them had been approved. It was expected that the remaining part would also be debated and enacted. In the meantime, an amendment to the Public Servants' Act No. 657 had already lifted the ban on their right to organize. It should be noted in this connection that workers employed in the public sector under employment contracts had enjoyed the same rights as private sector workers from the beginning of the free collective bargaining system. Contract personnel employed in public economic enterprises would be covered by the forthcoming legislation on public servants' unions, since they were considered to be public officials employed in the continuous and essential services of the State. It should also be recalled that their number was decreasing as the privatization process gained momentum. In the meantime, many public servants had already established their own unions. There were currently three active public servants' confederations and numerous unions and branch unions. A further positive step had been the issue of a circular by the office of the Prime Minister in November 1997, referring to Turkey's obligations under Conventions Nos. 87, 98 and 151, ordering the administrative authorities to make the necessary deductions for union membership dues, to avoid bringing obstacles against new public servants' unions and their activities and to establish dialogue and cooperation with these unions.

On the question of EPZs, he noted that under Act No. 3218 of 1985, which permitted the formation of free trade zones, the right to organize and bargain collectively was protected; however, within ten years of the establishment of the zones collective bargaining should take place, but any deadlock had to be referred to compulsory arbitration. He added that these provisions would expire in the year 2000 in the Aegean Free Trade Zone, which employed some 90 per cent of all the workers concerned.

In conclusion, as he had foreseen in his statement to the Committee last year, Act No. 4277 of 1997 had lifted the ban on the political activities of trade unions and their leaders. It had also repealed the provisions concerning the audit of unions and confederations, in accordance with the requirements of the Convention. Furthermore, Parliament had approved the ratification of Conventions Nos. 29 and 138, and was considering the ratification of Convention No. 159. As a result, Turkey would soon have ratified all seven core Conventions. As an indication of its determination to improve labour legislation, the Government had established a tripartite committee in May 1998, in addition to the Economic and Social Council, to promote dialogue between the partners in the industrial relations system, in accordance with Convention No. 144, which had also been ratified by Turkey. Despite the difficulties faced by the minority coalition government, Turkey had therefore demonstrated its continuing commitment to bring its industrial relations system into conformity with ILO standards. On the 75th anniversary of the founding of the Turkish secular Republic, it had therefore reaffirmed its commitment to social progress.

The Workers' members thanked the Government representative for the oral and written information. The Committee was discussing the application of the Convention in the country for the sixth time since 1991; it had discussed the application of Convention No. 87 in 1997. For some years the Government had demonstrated a more constructive attitude towards standards and the supervisory system, as was witnessed by the ratification of Convention No. 87 in 1993. But ratification alone was not enough. Serious divergencies between the law and practice and the Convention had been identified by the Committee of Experts over many years. Some of the legislative provisions in question had been amended, but the various laws still regulated the exercise of trade union rights in detail. They aimed at controlling collective bargaining rather than promoting it. The draft law on trade unions for public servants, which aimed at covering all public workers including those not engaged in the administration of the State, appeared to have the same approach. This had been noted by a mission of the European Confederation of Trade Unions which took place in February 1998. However, the Government indicated that this draft could be the subject of fresh deliberations with the trade union organizations. They insisted that the Government amend that draft, thus proving in a concrete manner its more positive attitude towards standards, and it should transmit to the Office the opinions collected during the consultations with the workers' organizations. A simple circular, such as that of 20 November 1997, was not sufficient to ensure the protection required by the Convention. The Committee of Experts raised other major points, yet the Government had not sent a report. It emphasized shortcomings in the protection afforded against anti-union discrimination in terms of the procedure, the burden of proof, the lack of an obligation to reinstate and the level of compensation. In addition, the Act permitted numerous restrictions on collective bargaining through the introduction of ceilings or the exclusion of certain subjects from the matters which could be negotiated. The procedures were very strict, with recourse to compulsory arbitration coming into play after 60 days. The double numerical requirement for being able to bargain -- that of having 10 per cent coverage at the branch level and 50 per cent at the level of the enterprise -- constituted a considerable limit on collective bargaining. Moreover, the fact that negotiation was limited to the level of the enterprise meant that many workers in small and medium-sized firms were excluded from the protection afforded by collective agreements. Finally, there was the problem of the free export zones which had been established between 1987 and 1995 and where compulsory arbitration had been imposed for ten years. The Government therefore had much to do to bring its legislation and practice into conformity with the Convention. It should be instructed to amend its legislation without delay, in consultation with the workers' and employers' organizations. It should also ask for the technical assistance of the Office in this task, as suggested by the Committee of Experts and this Committee in its previous conclusions. A detailed report should be furnished so that the supervisory bodies would be in a position to follow closely developments in the situation.

The Employers' members noted the report of the Committee of Experts related to four main points. The first point referred to protection against acts of anti-union discrimination. The Committee of Experts had noted the allegations made by a workers' organization that in case of discrimination at the time of recruitment, the legal fine was too low and the burden of proof rested with the worker. The Employers' members were of the view that according to general principles of civil law and a democratic society built upon such principles, the burden of proof could not be reversed since it always lay with the plaintiff. With regard to the restrictions on free collective bargaining, the prevailing restrictions on confederations to bargain collectively were a minor point since this did not occur in practice. As for the problem of the existing dual criteria of representativity, the Government had already indicated that it was ready to change this requirement but that there was no consensus on this point amongst the social partners. Regarding the denial of collective bargaining rights of public servants, the Employers' members pointed out that this was merely a question of amending national legislation since this right was already provided for in the Constitution. The Government had shown its willingness to enact further legal provisions which would lead to collective bargaining rights for public servants. Therefore, this Committee should wait for the comments of the Committee of Experts on the forthcoming information from the Government on this issue. With regard to the issue of compulsory arbitration, the Employers' members felt this matter could only be evaluated once the Committee of Experts obtained information on the number of free trade zones, their size, etc. Therefore, the Government should be requested to provide the relevant information on this matter.

An Employer member of Turkey made some additional remarks to the intervention of the Employers' members. He took note of the observations of the Committee of Experts as well as the statements given by the Government representative. He said that important developments had taken place in Turkey. The Turkish Confederation of Employers (TISK) had stressed in prior statements that the provisions of Convention No. 98 were applied in practice. A comparison of national labour legislation with the provisions of the Convention showed that there was sufficient protection in respect of the right to organize. However, some problems remained regarding the practical application of the legislation. In this connection, he raised three points. Referring to alleged acts of anti-union discrimination, he stated that article 10 of the Constitution provided for equality of every person, irrespective of race, language, or religion and article 51 of the Constitution protected persons against refusal to employ them on account of their trade union membership. Moreover, section 31 of the Act on collective bargaining provided for the same protection as set out in the Constitution. Therefore, workers should not be dismissed or discriminated against on account of their trade union membership. In respect of cases of dismissal on grounds of trade union membership, section 31 (subsection 6) of the Act on collective bargaining imposed a fine on the employer which was equivalent to at least a year's salary of the worker dismissed. In conclusion, he felt that Turkish legislation was rather broad in this respect. However, in practice these legal provisions were not effective since the legislation in respect of protection against (unjustified) dismissals had some gaps. Turning to the limitations on collective bargaining, he stated that the percentage of workers organized in a trade union had increased considerably from 53 per cent to 63 per cent and that the number of trade unions had decreased from 750 to 75 through the requirement of the dual criteria of representativity. Therefore, the Turkish Confederation of Employers was in favour of retaining the existing dual criteria. With regard to the collective bargaining rights of public servants, important developments had occurred in this area. The Turkish Parliament had recently repealed the prohibition on public servants from organizing in trade unions. Under section 22 of the Act on public servants, as amended, public servants had the right to establish and join trade unions. Moreover, Parliament had recently adopted 25 provisions of a Bill respecting the right to organize of public servants. The Government should be encouraged to adopt the second part of the latter Bill as well.

The Worker member of Turkey thanked the Standards Department, the Committee of Experts and the Workers' members for the support given to Turkey's democratic struggle, which had culminated last year in major changes and improvements to the legislation concerning a number of issues that had been criticized by the Conference Committee. The amendment of the Trade Unions Act had led to a considerable improvement, bringing the legislation in harmony with Convention No. 87 with regard to political activity and some other areas. He believed that the report of the Committee on Freedom of Association in Case No. 1810, a representation presented by his organization, as well as the deliberations of the Conference Committee in June 1997, had contributed considerably to this process. There were, however, still many areas where the current legislation violated Convention No. 87, especially with respect to the right to strike. Although his union's criticisms concerning violations of Convention No. 98 were serious, he stressed that Turkey was the most democratic and the only secular country in the region and possessed the democratic means of struggle to bring domestic legislation into conformity with the Convention.

With respect to the first point made by the Committee of Experts, the problems persisted. The protection afforded by current legislation was far from sufficient in respect of acts of anti-union discrimination. In case of discrimination at the time of recruitment, the legal fine was to be not less than US$70 and the burden of proof rested with the victim. There was no job security in spite of the fact that Convention No. 158 had been ratified on 4 January 1995. The Committee on Freedom of Association, in its 1996 report concerning the representation made by his organization, concluded that: "The Committee strongly urges the Government to take the necessary measures to guarantee workers effective protection against acts of anti-union discrimination in conformity with the international undertakings it made in ratifying Convention No. 98", and "The Committee notes with interest that, according to the Government, the Labour Act will be amended to allow reinstatement of workers in their jobs and to ensure the protection of workers against all acts of anti-union discrimination (including dismissal) in accordance with Convention No. 98."

Although the Government's comments referred to dated from 15 September 1995, today, almost three years later, no such legislation had been promulgated. With regard to the prohibition of dismissals due to trade union activities contained in the Trade Unions Act, he asked the Government representative to inform this Conference Committee of the number of cases brought to justice. In his opinion, everyday experience demonstrated that those provisions of the Act were completely impotent in preventing acts of anti-union discrimination. There were no Bills pending in Parliament to provide protection against dismissal for trade union officials, other than shop stewards in the workplaces. Concerning the second point, there were no improvements made or envisaged or discussed in Parliament concerning existing limitations on the right to bargain collectively. He recalled the legally imposed ceilings in collective agreements concerning bonuses. The Government had not fulfilled its obligations nor honoured its promises to encourage and promote voluntary bargaining. With respect to the third point, he regretted that in 1997 only one improvement had been made to the Civil Servants' Act, namely the amendments stipulating that civil servants, in accordance with the provisions of the Constitution and the relevant Act, could establish trade unions and higher-level organizations and become members of them. However, the Bill currently discussed in Parliament restricted the right to bargain collectively of civilian public servants employed in the armed forces and of prison wardens, by prohibiting their right to organize. The Bill envisaged only collective negotiation without any binding effect. As the Government representative had acknowledged, Convention No. 151 and not this Convention had been taken as the point of reference in the drafting of the Bill. He reminded the Government of Article 1 of Convention No. 151 and the obligation on the part of the Government to draft the Bill in accordance with the present Convention.

Public servants were deprived of the right to bargain collectively since any agreement between the parties had to be presented to the Council of Ministers for approval. As for the fourth point, he again regretted that there had been no improvement. Due to the wide range of prohibitions of the right to strike in areas which were not essential services, as defined by the ILO, compulsory arbitration was imposed; it severely curtailed the right to bargain collectively.

This violation also occurred in free trade zones, the number of which was on the increase. Of the nine free trade zones currently operating, seven were subject to compulsory arbitration in case of interest disputes during collective bargaining. Thus, it was not only the Aegean Free Trade Zone, to which the Government representative had referred. As of 1998, the number of enterprises in these free trade zones was 1,685. Regretting that the Government had not taken the necessary measures to bring the legislation into conformity with the Convention, he urged it to do so, in order that the discrepancies between the Convention and the legislation would be removed.

The Worker member of Norway speaking on behalf of the Nordic Workers' group (Denmark, Norway, Finland, Sweden and Iceland) recalled that they had been actively involved in supporting the democratic labour legislation in Turkey for years through the ILO and through Nordic cooperation with the Turkish trade union movement. She noted with great interest the points raised by the Committee of Experts, especially the requests made for more information on the measures taken to encourage and promote voluntary collective bargaining in accordance with Article 4 of Convention No. 98. She expressed her concern about the grave violations of Convention No. 98 in the many free trade zones where the Government had accepted compulsory arbitration in cases of disputes during collective bargaining for a period of ten years following the establishment of a free trade zone. She insisted that these restrictions laid upon such negotiations were completely incompatible with Convention No. 98. The Government had conveyed during this meeting that these restrictions would come to an end in the year 2000. Her question then was: would this also be the case for all free trade zones established more recently? She requested the Government to provide detailed information in this respect.

The Worker member of Germany referred to the right of public servants to organize. He mentioned a public gathering initiated by four big Turkish trade unions in collaboration with the European Trade Union. At this occasion, unjustified limitation on collective bargaining had been claimed. Furthermore, the Government had been urged to revise its legislation in this respect. Consultations, which had been carried out, led to positive results. However, the problem remained the same in substance. The Bill which had been elaborated still provided for limitations on collective bargaining, since only wages could be the subject of collective bargaining and sections 30 and 31 stipulated that only higher-level organizations of employers and workers could be admitted to collective bargaining. When an agreement had been achieved, it had to be submitted to the Council of Ministers for approval. In conclusion, he was of the opinion that these examples showed the need for the Government to take further steps in order to comply with the provisions of Convention No. 98.

The Worker member of France considered that developments were too slow in Turkey regarding the right to collective bargaining and that protection against anti-trade union discrimination remained insufficient. In his view labour law should be one which protected workers and in this respect a transfer of the burden of proof in cases of anti-trade union discrimination was a principle of equity. He added that freedom of association and the right to collective bargaining should be recognized for public servants and that confederations should have the right to bargain collectively on questions of interest that were shared by all workers. Finally, he supported the conclusions of the Workers' members and welcomed the undertaking by the Government to ratify all of the fundamental Conventions, but emphasized that such ratifications should also be accompanied by a will to implement them.

The Worker member of the Netherlands, referring to the numerical criteria currently provided for in national legislation, indicated that the Government had not mentioned the real irritant behind this dual criteria. The Government had resorted to a rather strange argument that it could not get rid of this requirement because of opposition from the trade unions and employers' organizations. He pointed out that the real issue was that this dual criteria was in violation of Convention No. 98 and therefore the Government should do something about it. Since the Government stated that it was hesitant to do so because of the social partners' opposition to any action to this effect, he wished to know whether the general policy of the Government was to seek the consent of the social partners before amending labour legislation. If this was not the Government's policy, then he did not see why the Government referred to the opposition of the social partners as an obstacle to taking any action in this area.

The Worker member of Italy mentioned the progress that had been accomplished in Turkey concerning the right to collective bargaining and indicated that the Organization of European Trade Unions had also been able to note certain steps forward in this respect. He noted, however, the problems related to export processing zones and recalled that there were ten such zones in Turkey which covered a large territory. He queried how many workers were affected by this problem and hoped that the ILO could examine this issue further. Regarding the right to strike, he considered that there were still too many restrictions imposed on the modalities for exercising this right in the sectors where such a right existed, including recourse to compulsory arbitration. Finally, he encouraged the Government to carry out consultations on issues of industrial relations particularly as Turkey had ratified Convention No. 144.

The Government representative of Turkey made the following points. With regard to comments that discrepancies existed between national legislation and practice, he pointed out that this was not true. Whatever legislation that existed was being applied. There were of course minor points of discrepancies between the national legislation and Conventions Nos. 87 and 98. However, his Government was undertaking efforts to do away with these discrepancies and each year an improvement could be noted in this respect. With regard to comments that legislation was too detailed, he indicated that this phenomenon stemmed from the legislative process in Turkey. It was also due to the fact that the trade union movement was relatively young. Finally, the legislation dated back 70 years and was based on foreign models. The allegations of insufficient protection against acts of anti-union discrimination were unfounded. Apart from legal provisions in this regard, a substantial number of judicial decisions had been handed down with respect to compensation granted to workers dismissed on account of trade union activities. With regard to ceilings imposed on various indemnities, he pointed out that a bonus was not considered as an indemnity. With the granting of fringe benefits, these ceilings had been partly counterbalanced. As to the criticism that workers in small and medium-sized firms were excluded from collective bargaining, he stated that there were no numerical requirements in Turkish law in this respect, that "enterprise agreements" were in fact the exception and that establishment-level bargaining was the rule in Turkey. He also emphasized that the allegation that recourse to compulsory arbitration after 60 days of negotiations was not correct: on the contrary, the right to strike was the rule after that period, with the exception of compulsory arbitration only for essential services where there were strike bans. Concerning free trade zones, the provisions applying in Aegean Free Trade Zone, which employed the great majority of workers, would expire in the year 2000. As for the other free trade zones, they only employed a fraction of the workers located in the main free trade zone. His Government would communicate the actual number of workers employed in such zones in a report to the ILO. He asserted that free collective bargaining took place but that, in the event of a deadlock, compulsory arbitration was imposed in respect of only one-fifth of all unionized workers. The others enjoyed the right to strike. With regard to public servants, it was important to distinguish between the one million public sector workers, who were covered by the same law as private sector workers, and those public servants who did not enjoy the same rights in line with Article 6 of Convention No. 98. His Government nevertheless intended to establish a personnel reform law with a view to clarifying their status. In reply to the question posed by the Worker member of the Netherlands, he indicated that the Government did not have to seek the consent of the social partners to amend legislation. However, his Government had consulted the social partners on this issue because the 10 per cent representativity requirement was linked to labour peace in Turkey. This issue, which had many political ramifications, had to be dealt with cautiously. Otherwise, social tensions would rise.

The Committee took note of the written information supplied by the Government and of the statement made by the Government representative as well as of the discussion that took place thereafter. The Committee recalled with concern that this case had been discussed by the Conference Committee on a number of occasions and pointed out, once again, that for a number of years the Committee of Experts insisted on the need to strengthen the protection of workers against acts of anti-union discrimination, the need to eliminate restrictions on collective bargaining resulting from the double criteria of representativity imposed on trade unions to be able to bargain collectively with the employers, the importance of granting workers in the public sector the right to bargain collectively and the need to lift the imposition of compulsory arbitration in free export processing zones for the settlement of collective labour disputes. The Committee welcomed the information that Act No. 4275 of June 1997 has been promulgated to recognize freedom of association for the civil servants. The Committee expressed the firm hope that the draft legislation now in preparation would aim at promoting and encouraging free collective bargaining between civil servants' organizations and state employers so as to regulate the terms and conditions of employment of this category of workers, with the only possible exception of public servants engaged in the administration of the State. Furthermore, the Committee insisted on the importance of a full application of all the Articles of this fundamental Convention and it urged the Government to take all the necessary measures to eliminate the remaining discrepancies in this regard in law and in practice to achieve full conformity with the requirements of the Convention. The Committee trusted that the Government would supply a detailed report on the concrete measures actually taken to bring the legislation and the practice into complete conformity with the requirements of the Convention on all the questions raised by the Committee of Experts at an early date. It reminded the Government again, as in the previous year, that it could avail itself of the technical assistance of the Office.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

The Government representative noted that the report of the Committee of Experts addressed three issues: the numerical requirement concerning the determination of a trade union eligible for collective bargaining; the trade union rights of public servants; and the conditions concerning strike postponements set out in section 33 of Act No. 2822 on Collective Labour Agreements, Strikes and Lock-outs.

Concerning the numerical requirement, the speaker recalled his statement to the Committee last year that endeavours to abolish the requirement concerning 10 per cent representation had failed because of the objections raised by the Confederation of Trade Unions of Turkey (TURK-IS) and the Confederation of Employers' Associations of Turkey (TISK). Nevertheless, the Government would continue to exert efforts in this direction. The speaker provided information on the progress that had been made during the last reporting period. The composition of the tripartite Economic and Social Council was modified by a decree issued by the Prime Minister in May 1996, to include representatives of not only the largest confederations of labour and employers, but also the representatives of labour and employer organizations with lesser membership. The Confederation of Progressive Trade Unions of Turkey (DISK), which had been criticising the 10 per cent requirement over the past years, as well as HAK-IS and the public servants, were now represented in the Economic and Social Council. Therefore, within the new structure of the Economic and Social Council, which would convene their meetings at quarterly intervals, the question of criteria for selecting representatives would be debated extensively and brought to a satisfactory conclusion.

Regarding the trade union rights of public servants, the speaker recalled that a draft Bill to regulate this issue had been rejected on the grounds that it had been incompatible with the provisions of the Constitution, but that this obstacle had been overcome during the past reporting period through the amendments introduced into the Constitution on 23 July 1995. Related efforts were also being made to draft legislation to regulate the trade union rights of public servants in accordance with the new amendments in the Turkish Constitution and the corresponding principles envisaged in Convention No. 151.

As for strike postponements, the speaker believed that section 33 of Act No. 2822 was in conformity with the Convention, and was not different from the wording suggested by the Committee of Experts. According to section 33, any lawful strike or lock-out that had been called, ordered or commenced may be postponed by a decree of the Council of Ministers for 60 days if it was likely to be "prejudicial to public health or national security". As far as he understood, the Committee of Experts had requested that this wording be amended as follows: "Any strike or lock-out may be suspended if it endangers the life, safety and health of the whole or part of the population". The speaker believed that there was no difference in substance between the two clauses. Furthermore, it was permissible to lodge an appeal with the High Court of Administration for cancellation of the decision of the Council of Ministers and for the suspension of the proceedings, and the interested parties had recourse to voluntary arbitration at any time. He added that a great majority of labour disputes falling within the scope of section 33 had been settled either by the parties agreeing between themselves or by referring the dispute to voluntary arbitration during the postponement period, and that of the 21 strikes postponed by the Government during the last 13 years, only two had been settled through recourse to compulsory arbitration. Furthermore, as emphasized last year, the Government could withdraw its decision to postpone the strike if the circumstances so justified, and that the Government had repealed its postponement decision in various cases once the conditions necessitating such action ceased to exist.

The speaker concluded by stating that the reply to the comments made by TURK-IS and DISK on the application of the Convention arrived in November 1995 and, as such, it had not yet been examined by the Committee of Experts.

The Workers' members regretted that, due to lack of time, the Committee was not able to discuss Convention No. 87, since both the Government and the Employers had said in the past that certain difficulties under Convention No. 98 would be solved after ratification of Convention No. 87. The Workers' members had had to wait several years for this ratification, and therefore hoped that a discussion on the application of Convention No. 87 would be held the following year. This case had been the subject of observations by the Committee of Experts for 15 years, and the same points had been raised in various complaints before the Committee on Freedom of Association. The positions of the Government, the Workers, and the Employers were well known, but the problems which had generated these discussions had not been solved and at best there had been only minor improvements. It was not good for the workers of Turkey, the Committee, or the supervisory system as a whole when this kind of situation was allowed to persist for so long without a clear stand by the Committee. The Committee had been very patient with the Government; although there were serious discrepancies between the Convention and national legislation and practice, the Committee had repeatedly expressed the firm hope that the Government would fulfil the promises it had made and give full satisfaction to the comments of the Committee of Experts. The optimism of the Employers' members concerning the political will and the problem-solving potential of successive Turkish governments had been a positive element, but the facts in this case did not provide a credible basis for such optimism after so many years. The increasing gap between the clear-cut judgements of both the Committee of Experts and the Committee on Freedom of Association on the one hand and this Committee on the other was not a good sign for the supervisory system. The responsibilities and the nature of the Committee's procedures differed from those of the Committee on Freedom of Association, but there had always been a sophisticated feedback between the regular supervisory procedure and the special complaints procedures which must be maintained and, in this case, perhaps even re-established.

The Workers' members endorsed the Committee of Experts' comments concerning the numerical requirements for membership of trade unions or collective bargaining, namely, the minimum of 10 per cent at the level of the branch of industry and more than 50 per cent in the company, which in Turkey is the bargaining unit. The Workers' members did not accept the argument of the Government that they could not change the legislation because the major trade union confederation and the employers' organization wanted to maintain these numerical requirements. The Committee of Experts had stated that these requirements were not in line with the Convention, and based their judgements on the body of "quasi case-law" built up over the years by the Committee of Experts itself and by Governments, Workers and Employers through the unanimous decisions of the Committee on Freedom of Association. The body of "quasi case-law" should have been the Government's point of orientation and not the opinion of large workers' and employers' organizations.

On the denial of collective bargaining rights of public servants not engaged in the administration of the State, the Workers' members fully supported the Committee of Experts' comments, based on "quasi case-law", that the present legislation still defined "essential services" much too wide. Here again, he reminded the employers that they were party to unanimous interpretations of the Conventions by the Committee on Freedom of Association. If governments disagreed with the judgements of the ILO they could seek a revision from the International Court of Justice. The only reason this hardly ever happened was that governments knew very well that these judgments were of high quality.

Finally, concerning compulsory arbitration, the Workers' members also supported the Committee of Experts' comments, and did not accept the argument that the legal provision was not significant since it was only applied when there were strikes and it led only to a temporary suspension of a strike. They stressed that it was a fundamental principle that the law should be in accordance with the Convention, regardless of whether it was applied.

The Employers' members noted that this case, which concerned three specific points raised by the Committee of Experts, was not a tragic situation. First of all, concerning the numerical requirement in terms of membership for a trade union to be authorized to negotiate collectively and to sign collective agreements, they noted that for years the Government had stated its readiness to bring about change but that the largest employers' and workers' confederations had been opposed. However, since tripartite negotiations appeared to be getting under way and to be including smaller trade unions, perhaps the outcome would be somewhat different once the negotiations were completed. They recalled that Article 4 of Convention No. 98 required free and voluntary collective bargaining but did not say anything about the acceptability of numerical requirements. The supervisory bodies had stated that it had always been accepted and recognized that the right to bargain collectively may be restricted to the most representative organizations. Consequently, it was possible to have a trade union with a membership of 51 per cent and another trade union with 49 per cent of the membership, in which case the one with 51 per cent of the membership would be the most representative one, and this would be in line with the opinions of the Committee of Experts and the Committee on Freedom of Association.

The Committee on Freedom of Association had also stated in similar cases that it was admissible to introduce limits on the ability to bargain collectively if the criteria were objective and had been determined beforehand, which the Employers' members believed was the situation in this case. Views would differ as to what figure was the most appropriate in a particular case. The Employers' members pointed out that although the Committee of Experts had been consistent in its determinations, new cases sometimes demanded new approaches. Furthermore, they stated that sometimes the Committee did not share the views of the Committee of Experts.

The Employers' members stated that the social partners and not the Government should be asked about the numerical restrictions since they were the ones who appeared to oppose any changes. They believed that optimism was justified since a new tripartite Economic and Social Council, where minority trade unions were also represented, had been established to address this issue. Furthermore, with regard to the second issue raised by the Committee of Experts, the Government had taken the uncommon step of amending its Constitution to enable public servants to engage in collective bargaining. Consequently, they were optimistic that the implementing legislation would also be enacted, since a greater majority was required to adopt a constitutional amendment than a regular law.

The third point dealt with compulsory arbitration for strikes in situations which were prejudicial to public health and national security, which was the Committee of Experts' definition of "essential services" as those which endanger the life, safety and health of the whole or part of the population and which the Employers considered as far too narrow. In the case of Turkey, restrictions on the right to strike were kept to very narrow exceptions, the approval of a court was required, and it was possible to refer the matter to voluntary arbitration. Therefore, they considered that this was not an alarming case since substantial changes had already occurred, and the Government was in the process of bringing about further changes through tripartite negotiations.

The Workers' member of Turkey informed the Committee that the recent constitutional changes had not repealed the ban on political activity of trade unions, and that the existing prohibitions in the Trade Unions Act and in the Act on Associations had been used recently against the Executive Committee of TURK-IS and the presidents of all affiliated organizations, it being alleged that they had supported certain political parties at the general elections last December.

Concerning the first point of the Committee of Experts, the speaker proposed a total tripartite review of the labour legislation in Turkey with technical assistance from the ILO, to bring it into harmony with the ratified Conventions Nos. 26, 87, 94, 98, 105, 111, 122, 151 and 158. Referring to the other violations of Convention No. 98, the Committee of Experts had stated that certificates of competence for collective negotiations should be issued by an independent body, but in Turkey, the Ministry of Labour and Social Security was entrusted with this task and had occasionally used this authority as a means of interfering in trade union affairs. In the case of anti-union discrimination in recruiting, the amended Trade Unions Act stipulated a minimum fine of only US$55 and placed the burden of proof on the victim. Furthermore, the union had to inform both the Ministry of Labour and Social Security and the employer about newly recruited members. No protection existed against dismissals or transfers of trade union leaders, or for shop stewards during a period following the expiry of their term of office. Confederations could not bargain collectively, the level of bargaining was specified by law, and collective bargaining at the industry level was prohibited. The law imposed limits on issues to be bargained collectively and prohibited any reference in collective agreements to the payment of wages for the period of strike. Furthermore, negotiations were limited to 60 days before mediation became compulsory. The speaker noted that the Government had not yet provided information regarding the Workers' comments.

Concerning public sector workers, the speaker regretted that the situation had deteriorated since last year. Currently, thousands of typists, drivers, machine operators, clerks, tailors, electricians, carpenters, welders, plumbers, nurses, dish washers, cooks, barbers, teachers, gardeners, etc., were employed in the public sector as "public servants". He recalled that Convention No. 98 specifically included in its scope all employees except the "public servants engaged in the administration of the State". He further recalled that as early as 1957, the Government representative had said that a Bill was "at present being studied" which dealt with conditions of employment of intellectual workers, which he hoped would give all the necessary guarantees to public servants. The speaker regretted that these and later promises had not been kept.

The speaker disputed the Government's claim that the amendment of article 53 of the Constitution granted public servants the right to join trade unions and to bargain collectively. In the amendment there was no explicit acknowledgement of the right to form and freely join trade unions of public servants. The only reference read, "trade unions and higher level organizations that shall be permitted by law to be established by the public servants ..." and therefore, the amendment had not improved the situation but, on the contrary, had caused a deterioration. In the absence of any constitutional provision regulating the right of association, it had been legally possible to exercise this right, whereas this amendment required the issuance of a permit by the promulgation of an Act which had not yet been done. Consequently, the PTT Public Employees' Trade Union (TUM HABER-SEN) was disbanded in December 1995. This amendment also denied public servants the right to bargain collectively. Although it granted unions the right to negotiate on behalf of their members, such negotiations had no binding effect whatsoever on the parties since enforcement was left to the discretion of the Council of Ministers, and therefore could not be considered collective bargaining within the context of Convention No. 98. Additionally, Decree with Force of Law No. 399 explicitly prohibited collective bargaining by contract employees in the public sector. The speaker urged the Government to acknowledge the right to collective bargaining in the public sector pursuant to Convention No. 98 and to eradicate any administrative action or interpretation of national legislation which created obstacles for the exercise of this fundamental right.

As to compulsory arbitration, the speaker stated that section 33 of Act No. 2822 stipulated that strikes could be suspended by the Council of Ministers if they were considered prejudicial to public health or national security. In contrast, the supervisory bodies of the ILO had defined "essential services" as only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population.

The speaker explained that the problem of compulsory arbitration could not be limited to the cases of suspension of strikes under section 33. In Turkey there was a total ban on strikes and thus compulsory arbitration in exploration, production, refining or purification and distribution of water, electricity, gas, coal produced for power plants, natural gas and petroleum, main petrochemical works, banking, public notaries, fire-fighting, urban public land, marine, railway and other transport, health and education institutions and national defence institutions. However, only a very small proportion of those workers within the scope of the complete prohibition of strikes in Turkey could be considered to be undertaking essential services. The speaker also mentioned that compulsory arbitration existed when a labour tribunal suspended a strike under section 47 of the Act because of alleged damage to society and to national wealth; in case of war; and in case of a state of emergency under martial law. The speaker concluded by stating that the Committee's interventions and resolution in this debate would contribute to bringing the labour legislation in Turkey into line with ILO principles and standards.

The Workers' member of Germany referred to the second issue raised by the Committee of Experts in its report, when it described the amendment of the Constitution as a positive aspect. The speaker stated that, as a consequence of this amendment, civil servants would be able to unionize and enter into negotiations. But it was still necessary to enact specific legislation to make this possibility an actual fact, particularly in light of the fact that the judicial authorities had dissolved the union of postal and telecommunications workers. He indicated that civil servants who were not employed in the direct administration of the State did not have the right to unionize or bargain collectively. He concluded by stating that it was unacceptable that the unions of public servants could not conduct their activities in full freedom and that they did not have full rights to bargain collectively, even more since there were many contract employees who needed the special protection provided under Convention No. 98.

The Workers' member of Greece stated that he could not accept the Government's statement that the situation was difficult and consequently that the Government could not guarantee the right to bargain collectively. He added that it was impossible to believe that this right could be restricted on account of economic or other difficulties. Regarding the criteria for representation of a union in negotiations, the speaker agreed that the unions involved should be those which were the most representative, but he disagreed with the setting of numerical criteria. Furthermore, he regretted that compulsory arbitration had become the rule rather than the exception. He added that compulsory arbitration had been set aside in the majority of countries which wished to respect the process of social dialogue and collective bargaining, and that the conciliation and arbitration procedures which remained in those countries were voluntary only. Additionally, the conciliators and arbitrators must be appointed by mutual consent of the interested parties, and not by a third party.

The Workers' member of the United States drew further attention to the issue of collective bargaining in the public sector and the imposition of compulsory arbitration in the free trade zones. Any collective agreement reached between a public servants' union and an employer must be approved by the Council of Ministers. This prevented the union from negotiating directly with those in Government who had final decision-making authority. This consequently discouraged bargaining in good faith since unions could not obtain commitments at the bargaining table and therefore encouraged work stoppages as the only means available to bring to the table those who could negotiate an agreement not subject to overrule. Furthermore, the legal definition of public servants was far too broad, in clear violation of Convention No. 98. Regarding the imposition of compulsory arbitration in the free trade zones for a period of ten years following the establishment of the zone, the speaker referred to the conclusions formulated by the Committee on Freedom of Association in paragraph 63 of its 303rd Report in which it urged the Government to remove in the near future the restrictions which were incompatible with the application of the Convention. He stressed that downward pressure on labour standards and workers' rights must be combated by insisting that the ILO Conventions are strictly and uniformly applied, without exception. The speaker concluded by supporting the suggestion of technical assistance made by the Committee of Experts.

The Government representative stated in reply that the criticism that collective bargaining was prohibited in free trade zones was not correct. Under the terms of Act No. 3218 of 15 June 1985, within the first ten years of the establishment of the free trade zone collective bargaining shall take place between the parties but any deadlock shall be referred to compulsory arbitration. In order to encourage free trade without any hindrance, free trade zones were kept separate and subject to the foreign trade regulations of Turkey; however, in accordance with Act No. 3218 of 1985, there were no longer any free trade zones in Turkey subject to this restriction.

The speaker stated that he had taken note of the other issues raised by the other speakers, which would be given due consideration.

The Workers' members stated that, as far as the numerical restriction was concerned, the Workers' members firmly believed that the Committee of Experts did not quarrel with the 50 per cent criterion, but with the combination of the 50 per cent with the 10 per cent at branch level, since there was no collective bargaining at the branch level. The fact that the large workers' and employers' organizations in Turkey thought that they could live with these numerical restrictions was completely irrelevant, as it had been irrelevant in the past cases with unions from Eastern European countries concerning forced labour. As to the constitutional changes furthering the rights of public servants, they did not consider that the Turkish legislation presently promoted collective bargaining. Likewise, arbitration only hindered collective bargaining, and therefore, even if the Government did not use it too often, the law should be changed. They reiterated the grave concern of the Workers' members and suggested technical assistance from the ILO.

The Employers' members re-emphasized the significance of the constitutional amendment in Turkey, which provided public servants freedom of association and, to some extent, the right to bargain collectively. They were optimistic that the implementing legislation would also come into force.

The Committee noted the statement made by the Government representative and the following discussion. The Committee regretted that the Committee of Experts had received the report from the Government on the application of the Convention too late and that there had been no response provided in time on the observations made by the Turkish Trade Union Confederation (TURK-IS) and DISK. The Committee welcomed the progress which had been noted since then by the Committee on Freedom of Association, particularly the constitutional amendment which grants public servants trade union rights and the right to collective bargaining. However, it noted that the Committee of Experts had expressed concern about the fact that numerous divergences persisted in law and in practice, with the requirements of the Convention. It also noted that a tripartite commission would examine the points raised by the Committee of Experts. The Committee once again urged the Government to adopt measures to lift restrictions on collective bargaining resulting from the dual criteria for representation required of the unions. It also expressed the firm hope that in addition to the constitutional provisions, legislative provisions of a specific nature would be adopted to give workers in the public sector covered by the Convention the unambiguous right to establish trade unions, so as to be able to negotiate collectively on their working conditions. The Committee urged the Government in its next detailed report on the application of the Convention to give details of specific measures taken, if necessary with assistance from the ILO, so as to follow up on the comments of the Committee of Experts and particularly to promote free collective bargaining as a way of setting working conditions. The Committee expressed the hope that it would be in a position to note decisive progress in law, and in practice, on these questions in the very near future.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

A Government representative, regarding the first question raised by the Committee of Experts, repeated that the Government was continuing its efforts for the removal of the requirement of at least 10 per cent of the membership of workers for a trade union to bargain collectively in spite of the objections made by organizations of employers and workers.

Regarding the trade union rights of civil servants, the parliamentary commission debating the proposal of a law regulating the issue had held that the proposal was not compatible with the Constitution as such. A proposal had been eventually prepared with the consensus of all the political parties to amend the Constitution, submitted to Parliament and passed through the relevant commissions only a week ago. One of these draft amendments aimed at securing trade union rights of public employees. The draft Bill was pending debate.

As to the third point concerning section 33 of Act No. 2822, the Government representative emphasized, quoting the provision of the said section, that it only concerned a case that was likely to be prejudicial to public health or national security, and was therefore in full conformity with the views of the Experts. He added that any decision of the Government was subject to the supervision of the independent judiciary. The interested parties could, at any state, also have recourse to voluntary arbitration. Furthermore, the Government could withdraw its decision if circumstances that justified the postponement no longer existed.

The Employers' members recalled that this Committee had treated this case many times in the past. The facts were therefore well known. The first point was the numerical requirement for trade unions to bargain collectively. The Government indicated their readiness to modify it but said that the social partners had last year expressed their wish to maintain things as they were. Besides, the Committee of Experts did not indicate from what level of the numerical requirement it would become abusive, and the Convention did not lay this down. It would be useful if the Government supplied in its next report information on the areas in which collective agreements existed and their number. If such data showed collective bargaining taking place everywhere, this first point would lose its importance.

The second problem concerning the denial of collective bargaining rights of public servants was not new either. A draft Bill had been submitted and it was for Parliament to adopt it. The next report of the Government should indicate any new measures that had been adopted.

The third question concerned compulsory arbitration in certain circumstances. The Committee of Experts reiterated its interpretation that compulsory arbitration should only apply to essential services in the strict sense, that is, services the interruption of which would endanger the life, safety and health of the whole or part of the population: on this interpretation, the Employers' members had been making reservations. In view of the guarantees of procedure, the possibility of recourse and the involvement of the social partners, it would appear that the problem was getting resolved, at least in terms of Convention No. 98. The recent ratification of Convention No. 87 by Turkey should also bring about new improvements. The Government should be requested to supply in its next report detailed information on any new evolution.

The Workers' members pointed out that this case had already been discussed in 1988, 1989, 1991, 1993 and 1994, and could not share the patience of the Employers' members. Although the Government referred last year to the Bill being discussed, the Committee of Experts this year could only reiterate its observation on each of the three points raised. It was also noted that the Government had not responded to the comments made by the Confederation of Turkish Trade Unions (TURK-IS).

As regards the Bill in question, this Committee had last year requested the Government to take measures to "adopt specific legislative provisions to accord to workers in the public sector, covered by the Convention, the right to form trade unions so as to enable them to bargain collectively on the conditions of their employment". Now this Bill had not been adopted and the Government seemed to be preparing a new Bill which would no longer cover the right to bargain collectively. This change in the Government's position should be explained.

The Bill concerning the double criteria to recognize trade unions for the purpose of collective bargaining was still under examination. As they had done on several occasions, the Workers' members recalled that an equilibrium should be sought between the requirement of pluralism and of effectiveness. The double threshold of 10 per cent of the branch and 50 per cent of an establishment would exclude many workers from collective bargaining.

The obligation to promote collective bargaining was violated both in law and practice by the procedures of compulsory arbitration. The Workers' members fully subscribed to the observation of the Committee of Experts that recourse to compulsory arbitration should be strictly limited to essential services. It was indispensable that detailed information should be examined again by the Committee of Experts.

The Government should be asked to supply specific information on each of the points raised by the Committee of Experts and to reply to the comments of the TURK-IS. By ratifying several fundamental Conventions recently, Turkey had demonstrated its interest in the principles enshrined in those instruments. It was for the Government to show its willingness to respect these international commitments in practice by making necessary changes.

The Workers' member of Turkey recalled that this case had been discussed almost every year since 1983, when a special paragraph had been formulated. The first question of the numerical requirement required a complete revision of the legislation on the basis of tripartite consultation and with the technical cooperation of the ILO. As to the second point concerning the denial of collective bargaining rights for public servants, the perspective had become worse since last year. While the Government had promised to recognize this right, its attitude had changed radically. In terms of the constitutional amendment which was under discussion in Parliament, negotiations would be authorized but the concluded agreement would have no binding force. In addition, the decision of 25 May of this year of the Court of Appeal threatened the very existence of trade unions of public servants. As regards compulsory arbitration, it was imposed upon a very wide variety of activities, most of which did not correspond to essential services. On all these points, the situation had not improved but rather appeared to be deteriorating even further.

The Committee took note of the statements of the Government representative as regards the issues mentioned by the Committee of Experts on the numerical requirement for unions to bargain collectively, the denial of collective bargaining rights of public servants and compulsory arbitration in certain cases. The Committee called upon the Government, having gone into the contents of the statement, to furnish full information on further developments as regards removal of restrictions on collective bargaining, and hoped that the proposed law for extending collective bargaining rights to public servants would truly reflect the suggestions of the Committee of Experts made earlier. The Committee also urged the Government to limit further, as advised by the Committee of Experts, the scope of compulsory arbitration to be truly harmonious with Convention No. 98 and furnish information on this as well in its report.

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative of Turkey declared that he would offer information on the three points concerning the application of Convention No. 98 raised in the report of the Committee of Experts: (1) numerical requirements concerning the determination of the representativity of a trade union for collective negotiation; (2) trade union rights of civil servants; and (3) compulsory arbitration in relation to the suspension of a strike. Concerning the first point, the speaker recalled having given information last year on Article 12 of Law No. 2822 on Collective Labour Agreements, Strikes, and Lock-outs. This had not been modified because the most representative social partners wished to maintain the existing system, and the Government was not able to undertake the legislative modifications requested by the Committee of Experts. He added that there was now a proposal of the Ministry of Labour and Social Security to remove the 10 per cent numerical restriction so that the trade union could participate in collective bargaining of any given branch, and this had been communicated to the social partners. The Confederation of Workers, TURK-IS, has declared itself against this proposal by a letter of 5 April 1994. The Confederation of Employers, TISK, equally declared itself against the proposal by a letter of 19 April 1994. Nevertheless, the Ministry is continuing its work to modify this Law and the law on trade unions. Concerning the second point (trade union rights of civil servants), the speaker recalled indicating last year that new legislation would be drafted in conformity with Conventions Nos. 87 and 151 which have recently been ratified by Turkey. He reported that there has now been a proposal of a law on trade union rights for civil servants and their participation, by the intermediary of their representatives, in the determination of their conditions of work. This proposal has been approved by the Council of Ministers, and it has been submitted to the National Assembly and transmitted for study to the Parliament. He added that, in practice, civil servants have already started to form trade unions, and that by a Circular of the Prime Minister, No. 1993/15 of 15 June 1993, the hesitations of certain administrative authorities have been removed, and the civil servants can freely constitute trade unions. Concerning the third point (compulsory arbitration in relation to the suspension of a strike), the speaker pointed out that if the Committee of Experts request a modification of Article 33 of Law No. 2822 on Collective Labour Agreements, Strikes and Lock-outs, he believed nevertheless that compulsory arbitration should be applied to essential services the interruption of which may put in danger all or a part of the population, life, security or health. The speaker added that the contents of this Article are not in contradiction with the principles held by the Committee of Experts because they permit the Government to impose compulsory arbitration only if the strike is of a nature such as referred to above. He underlined, however, that any decision of the Government in this affair could at any moment be submitted to independent judicial procedures or submitted to private arbitration. Finally, he pointed out that the Government could always rethink or annul its decision if circumstances justify a cessation, the interested parties still having the possibility to reach an agreement at this stage. The conflict would be submitted to compulsory arbitration of the Supreme Committee of Arbitration only if there is no solution. In any event, the Government will not call a suspension to a strike except in exceptional circumstances, and they have not resorted to this procedure in the last year. To conclude, the speaker announced the adoption by the National Assembly of a law authorizing the Government to ratify Convention No. 158 (Termination of Employment, 1982). This will hold particular importance for the right to organize and trade union activity.

The Workers' members pointed out that this case had been discussed several times and that the Committee of Experts had formulated observations on the matter. These observations were restated in its last report under the three points put forward below and upon which the Government representative based his intervention: the numerical requirements of 10 per cent of the workers in a branch and more than half of the workers of the establishment was required of the trade union to obtain the power for collective bargaining; the refusal to allow civil servants the right for collective bargaining; and compulsory arbitration in work conflicts which affected essential services. They noted with interest the ratification of Conventions Nos. 87, 135 and 151 and welcomed the announcement of the future ratification of Convention No. 158. Nevertheless, they had the impression that many of the measures announced by the governmental representative and the ambiguous nature of the statements made by the Government representative led them to believe that the Government would continue to control the trade union movement and the development of collective bargaining. Returning to the question of numerical requirements, they supported the statements made in the General Survey (paragraph 97 and following, and paragraph 238 and following) concerning the importance of an equilibrium between trade union pluralism and efficiency in collective bargaining. They equally agreed with the considerations developed in pararaph 241 of the same study in which the Committee of Experts dealt with the recognition of trade unions leading to collective bargaining, and considered that such a system could lead to the exclusion from negotiations of a union which, while having a majority, did not constitute 50 per cent of members. Considering that a national system must promote the efficiency of collective bargaining and stimulate social dialogue, they believe that the system foreseen by the Turkish legislation did not respond to this need because of the double criteria concerning the amount of workers represented. This double criteria allowed the exclusion of a large number of workers from all collective bargaining. Concerning the right to negotiation for workers in the civil service, the Workers' members supported the opinion expressed by the Committee of Experts in paragraph 105 of its General Study and considered that freedom of association could not be denied to civil servants or to public employees. This sector must be allowed a significant role in matters of collective bargaining (paragraph 265). They felt that the concept of a civil servant must be understood in a strict sense. Concerning compulsory arbitration, they recalled that the Committee of Experts only allowed this procedure in cases of essential services. They requested the Government representative to give explanations as to the system of compulsory arbitration prescribed in free trade zones. To conclude, the Workers' members requested the Government to follow the proposals of the Committee of Experts in eliminating both numerical requirements as well as the requirement for compulsory arbitration and to adopt the law on trade union rights for civil servants. They expressed their hope that the Government would take the necessary measures for stimulating free collective bargaining at all levels and in all enterprises.

The Employers' members first dealt with the question of numerical requirements used to determine the representativity of an organization within the framework of collective bargaining. The Committee of Experts criticized the double criteria of 10 and 50 per cent as being too high, and the Employers agreed. The Government also appeared to agree, as it had not expressed a divergent opinion. The Employers' members understood, however, the difficulty the Government had in modifying the regulations in question since the social partners seemed to want to maintain the system as it was and both had rejected the proposed change in the law. Nevertheless they called on the Government to do everything possible to submit a new law to Parliament understanding that the question could only be resolved by modification of the pertinent regulations. Secondly, the Employers' members could not express an opinion concerning the right of negotiation for civil servants, since, according to the information communicated by the Government, the Parliament was now studying a proposed law which would abolish or at least limit the restrictions imposed on civil servants. The new law would allow civil servants the right to negotiate collectively. In any event, it seemed that, according to the Committee of Experts, the TURK-IS was not satisfied and that the restrictions persist. The Committee of Experts had expressed the hope that the proposed law would guarantee to public civil servants the right to bargain collectively and that the Government would provide information on any new changes. For their part, the Employers' members hoped that these changes would be undertaken and followed, and they hoped to be kept informed of the progress realized. Third, the Employers' members dealt with the question of compulsory arbitration. They referred to the formula utilized by the Committee of Experts according to which it should not be used except in the case of certain essential services in the strict sense of the term. That is to say, compulsory arbitration would be used only in cases where there was a threat to public health, public security or the lives of the population. The Employers' members considered, as they had said several times, that this formula went too far and that the State must have the possibility to intervene before such a grave situation occurs. The Government has said that it would only use compulsory arbitration when public health, security or lives were in peril. Furthermore, it stated that an appeal to the courts could be lodged against the decision to interrupt a strike for 60 days, and all sides participate in the subsequent arbitration. Finally, there are no indications that this kind of arbitration is often used or that it is used in an abusive manner. They considered that a procedure was significant only when one appreciated its application in practice. It should be recalled that compulsory arbitration would come into play only after a delay of 60 days had been allowed for the partners to reach an agreement. In addition, there was the possibility to appeal within the judicial system and to constitute a tripartite arbitration tribunal. The Committee of Experts had not signalled an abuse of this procedure, and in these circumstances, the Employers' members felt that they must ask the Government to follow up the measures that they had begun with a view to modifying the regulations concerning numerical requirements and to facilitate the participation of civil servants in collective bargaining. To conclude, they were reassured by the fact that the Government had ratified Convention No. 87 last year.

The Workers' member of Norway declared that he would be speaking for the Workers' members of Denmark, Finland, Iceland, Sweden and the Netherlands. He deplored the fact that the Turkish Government continued to oppose pluralism in the structures of trade union activity. Examination of the consequences of the prescribed numerical requirements for judging the representativity of an organization for collective bargaining purposes, led to the conclusion that the Government wished to crush the leftist trade unions. This applied in particular to DISK, a trade union which the Government should be proud of because it had been noteworthy for its contributions to the political process leading to democracy. He considered it wrong for the Government to state that another Turkish trade union did not accept the interpretation of the Committee of Experts. He underlined the fact that the right of civil servants to take part in collective bargaining had still not been recognized. This was in spite of the fact that the Government had assured the Conference Committee on several occasions that laws contrary to fundamental human rights would be repealed quickly after the adoption of the Constitution of 1980 and after a conference held in March 1994 in Istanbul. Participants to this conference included the European Union, the Council of Europe, trade union leaders of TURK-IS, of HAK-IS and of DISK and the international centres ICFTU and the ECTU. The Government affirmed that the measures necessary for ensuring that national legislation conformed to the Conventions of the ILO, and notably Convention No. 98, would be taken. The Government also referred to its request to become a Member of the European Union which would guarantee the consecration of fundamental rights into its national legislation. In his opinion, the proposal for a law which had been presented envisaged the assimilation of organizations of civil servants to associations and not trade unions, thus implying that the State would exercise control over these organizations according to civil law.

The Workers' member from Turkey regretted that the Government had continued to violate the provisions of the Convention. Existing legislation fixed fines for acts of anti-union discrimination at 30-130 US cents, which was ridiculously low. Legislation also required trade unions to inform the Government of newly recruited members within 15 days and the Ministry of Labour used its authority to issue certificates of competence as a means of interfering with trade unions. Trade union officers and employees could be dismissed without just cause, and employers could oppose their reinstatement. The speaker emphasized the need for a total revision of labour law in Turkey, in line with Conventions Nos. 87, 98 and 151, and for this, technical assistance should be requested from the ILO. The speaker cited several examples in which public servants were prevented from organizing. The draft legislation referred to by the Government as a positive step in this regard would not solve the problems and, in certain cases, might even aggravate them. In one case, a trade union of civilian employees in military establishments, legally formed under existing legislation, would be dissolved under the proposed bill. There was little room for collective bargaining in the legislation. In case of a dispute, the proposed legislation establishes a conciliation committee, made up of two government officials and a university staff member, which proposes a solution. The Council of Ministers has power to decide whether a strike will be allowed and when and where it will take place. There is extensive use of compulsory arbitration in Turkey. Strikes are banned in a great number of non-essential sectors. Even where collective bargaining is allowed, it is to be completed in a period of 60 days; and if not, compulsory mediation determines the matter. Pursuant to the Free Trade Zone Act, there is compulsory arbitration for a period of ten years following the establishment of the zone. These are clear violations of Convention No. 98. The proposed amendments to the Collective Labour Agreements, Strikes and Lock-outs Act will not bring the legislation into line with the Convention. And neither will the Democratization Plan of the Government. The speaker concluded by reiterating that all Turkish labour legislation needed to be harmonized with Conventions Nos. 87, 98 and 151 as well as recommendations and proposals of the Committee of Experts, the Committee on Freedom of Association and this Conference Committee. This should be done with technical assistance from the Office and the participation of the social partners.

The Employers' member from Romania considered that, instead of criticizing the Government of Turkey, the Conference Committee should congratulate it on its efforts in complying with Convention No. 98. Concerning the problem of numerical requirements, the speaker wished to know if there exist internationally recognized standards or if the Committee of Experts could suggest optimal numerical requirements. The speaker pointed out that negotiations became more difficult with a larger number of social partners, and the lower the numerical requirement, the larger the number of social partners.

The Workers' member from Greece was disappointed that the Employers' members had been reassured simply because Turkey had ratified Convention No. 87. In many countries, and notably in Greece, Conventions ratified long ago have not been implemented, as the Committee has recognized.It was important to point out that it was not sufficient merely to ratify a Convention. National legislation must also be brought into conformity with the Convention so that it would be respected. He wondered why the trade union DISK, member of the European Confederation of Trade Unions and a member of the Executive Board, was not participating in this meeting at the Conference.

The Government representative assured the Conference Committee that its observations and suggestions would be studied by the competent authorities of his country. He recalled that, as concerned the suppression of numerical requirements, there was a proposal for a law now under discussion which saw the suppression of the 10 per cent requirement. As to the rights of civil servants to organize, he recalled that, in the light of Conventions Nos. 87 and 151 on freedom of association, a proposal for a law concerning the procedures for determining the conditions of work for civil servants was being studied by Parliament. Concerning freedom of negotiation between the social partners, the speaker declared that his Government desired to enter this process as little as possible. He discarded the idea that there was no freedom for negotiation in Turkey, citing the 1,783 agreements concluded through free collective bargaining since 1982 and covering 1,090,000 workers, and the some 1,153,578 hours of work lost to strikes since that date. To conclude, the speaker pointed out that proposals for reform foreseen by his Government had been communicated to all concerned parties, including DISK, the HAK-IS, the TURK-IS and the TISK.

The Workers' members, referring to the intervention of the Employers' members, declared that the existing problems were not unimportant, and that it was necessary to continue to insist that the Government proceed with the requested modifications of the legislation. They considered that the problem of numerical requirements was not just that it served as a criterion for defining the most representative organizations but also the fact that the existing legislation had a double requirement. This resulted in the exclusion of a large proportion of workers. Concerning compulsory arbitration, they judged it indispensable to refer to the spirit of the Convention and the opinion of the Committee of Experts.

The Employers' members agreed with the Workers' members that it would be useful to modify the regulations concerning numerical requirements, even if an important trade union wanted to maintain the existing situation. Concerning the declarations of the Government representative they did not consider the fact that the large number of strikes signified important social progress. Concerning compulsory arbitration they felt that this procedure was valuable to the extent that non-ambiguous criteria were established and where the participation of the two parties was guaranteed. Relating to the formula utilized by the Committee of Experts, they preferred to hold to the letter of the Convention more than to its spirit, which they judged at times confused.

The Committee took note of the statement of the Government representative concerning the developments which had occurred and the discussions which had taken place at the Conference Committee. The Committee was pleased to note the recent ratification of Conventions Nos. 87, 135 and 151, which should lead to a better application of the present Convention. The Committee recalled, nevertheless, that for a number of years the Committee of Experts had noted important differences between legislation and the Convention. The Committee requested the Government to adopt measures to eliminate restrictions on collective bargaining resulting from the double criteria for judging the representativity of trade unions, so that they might bargain collectively with employers; and to promote collective bargaining as a means of determining conditions of work and for adopting specific legislative provisions to accord to workers in the public sector, covered by the Convention, the right to form trade unions so as to enable them to bargain collectively on the conditions of their employment. The Commission insisted that the next report of the Government should provide details on the application of the Convention, particularly the concrete measures taken to stimulate and promote, as a priority, free collective bargaining. The Commission requested the Government to communicate the legislative proposals elaborated in this area. The Commission hoped to be able to signal major progress on these questions in the near future.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

A Government representative, referring to compulsory arbitration in cases of collective disputes other than those relating to essential services, pointed out that this was only an issue in the framework of the suspension of strikes. The application of this compulsory arbitration procedure was in fact limited to cases where work stoppages due to a strike would endanger public security or health of the whole or part of the population as stated in section 33 of Act No. 2822. As this Committee was well aware, it had been concluded in paragraph 214 of the 1983 General Survey of the Committee of Experts that "if strikes are restricted or prohibited in the public service or in essential services, appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset by adequate impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties". When exercising the power of compulsory arbitration, the Government and the judiciary were extremely careful not to exceed the limits set by the legislator. It had to be stressed that this procedure was governed by constitutional rules strictly limiting its exercise to exceptional situations. Moreover, the mediation of the Minister of Labour continued throughout the period of suspension, with all sides having the right to resort to voluntary arbitration at any stage. In addition, the Government could revoke its decision if the reasons which had necessitated the suspension no longer existed. It was also possible for the parties to reach an agreement during this period. However, if the dispute had still not been resolved, it was then brought for compulsory arbitration before the Supreme Arbitration Board. Thus, resorting to compulsory arbitration in cases where a strike was postponed was not an interference in the collective bargaining process. On the contrary, this procedure was applied in order to find a settlement to disputes where the collective bargaining process had reached an impasse. It was a mechanism which was resorted to exceptionally as demonstrated by the fact that, since January 1991, compulsory arbitration had been used at only four worksites in Turkey. This was by no means an automatic procedure but it was a mechanism which was resorted to exceptionally with the unique objective of making sure that workers were not deprived of collective agreements under certain circumstances. The second issue concerned the numerical requirements in section 12 of Act No. 2822. The Goverment had indeed been seeking "measures appropriate to national conditions to encourage and promote the full development and utilization of voluntary negotiation by means of collective bargaining". The reason why the relevant provisions in the law had been preserved was simply because there was consensus amongst the most representative social parties to maintain the existing system. Although a draft Bill had been prepared by the Government in 1991, it could not be processed further for this very reason. The Government would, however, continue to take into consideration the observations of the Committee of Experts. With regard to the collective bargaining rights of public servants, this issue did not seem to be directly linked to the No. 87 Convention. However, since the Government had ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) at the end of 1992, new legislative measures would be expected to follow with regard to public servants. More generally, it was significant to note that besides Convention No. 87, the Government had also ratified five other Conventions in 1992: the Minimum Age (Industry) (Revised) Convention, 1937 (No. 59); the Workers' Representatives Convention, 1971 (No. 135); the Human Resources Development Convention, 1975 (No. 142); the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); and the Labour Relations (Public Service) Convention, 1978 (No. 151). The Termination of Employment Convention, 1982 (No. 158) had also been submitted to the Parliament for ratification. This should be considered a very constructive move by the Government. The Government had actively embarked upon revision of all existing labour legislation, in particular Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strikes and lock-outs. To this end, the social partners had been asked twice during the last 10 months to convey their views and propose amendments to the Government. Some responses had just been received, and the Government was in the process of assessing them and would continue this dialogue with the social partners. Some social partners, however, had not responded at all.

The Workers' members, while welcoming the ratification by Turkey of many important Conventions which reflected the good intentions of the Government, expressed their concern at the persistent violation of this Convention. The case was not a new one; it had been the subject of observations by the Committee of Experts for several years and of discussions in this Committee. The formal promises made by the Government to the Conference Committee in 1991, and to the Committee on Freedom of Association in 1992, to take the necessary measures to comply with the obligations of the Convention did not appear to be honoured. These measures concerned the repeal of the provision which allowed trade unions to bargain collectively only if they had a 10 per cent minimum branch membership, and the guarantee of trade union rights to employees in the public service. They expected the Government to take the necessary measures to give full effect to the Convention and to provide any useful information in this respect in a report.

The Employers' members stated that, according to the Government representative, compulsory arbitration in practice had almost no significance. It had been applied when strikes had arisen but only led to a temporary suspension of strikes. With regard to the numerical requirements for collective bargaining, both social partners were against any amendment to the legislation regulating this point. Moreover, there were some kind of qualitative or quantitative restrictions in nearly all countries. Although these numerical requirements did not have to be retained, they did have a certain advantage vis-à-vis other restrictions on collective bargaining in practice, in that they were clear-cut and less vague. The Committee of Experts had itself previously accepted limitations regarding representativity in collective bargaining. With regard to the right to bargain collectively of public servants, the Government representative had stated that in recent years the Government had ratified a number of important Conventions, in particular Convention No. 87. This question could thus be examined in another connection at a later stage. In any case the Government should continue to provide information.

The Workers' member of Norway stated that it was a shame that Turkey continued to apply legislation concerning compulsory arbitration and concerning the prohibition of the right to bargain collectively of public servants. It was equally serious that Turkey maintained the requirements of 10 per cent minimum branch membership and more than 50 per cent membership of the employees in a workplace for collective bargaining purposes. In practice, this legislation which was contrary to the Convention, prohibited many national trade unions from concluding collective agreements in a great number of enterprises in the country. This was, for instance, the case of the trade union DISK. The Government should be urged to change the said legislation as quickly as possible.

The Workers' member of Turkey regretted that the Government and the employers in his country continued to violate the Convention. Although the labour legislation in force provided for the legal protection of workers against anti-union discrimination, tens of thousands of workers affiliated to unions were being dismissed without any valid reason. Trade union rights and freedoms were violated by the 1982 Constitution, Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strikes and lock-outs, which had been promulgated by five Generals following the military coup of 12 September 1980. Although Article 6 of the Convention only excluded public servants engaged in the administration of the State, the Government also excluded other public servants not covered by this definition including clerks and janitors, by administrative measures. Contract personnel employed in public economic enterprises were prohibited from establishing and joining trade unions of their own choosing. Strikes were strictly banned for these categories of workers. In fact, in general, strike bans applied to a majority of workers employed under a labour contract, for example, those in banking, energy, coal mines, all kinds of urban transport, petroleum and petrochemicals, health and education. Many trade union officers and workers had been convicted on grounds of the violation of these bans. The Government was empowered to suspend strikes and thus to solve the dispute by compulsory arbitration. Draft Bills for the democratization of political and social life and of labour legislation had been submitted by his union to the Ministry of Labour and Social Security. However, no tripartite activity had been undertaken on the subject. Although this was a problem, it would be a mistake to give top priority to the repeal of the numerical preconditions required for collective bargaining, since the main problem was the democratization as a whole of working life and of the social and political structures. In order to guarantee the application of the Convention, existing labour laws which were the remnants of the military regime had to be amended. The Government should take into consideration the recommendations formulated by the Committee on Freedom of Association in its reports submitted to the Governing Body concerning Cases Nos. 1521, 1577, 1582 and 1583.

The Workers' member of the Netherlands emphasized that the Committee of Experts had stated that the Turkish legislation on the three points mentioned in its report was in violation of the Convention. The encouragement and promotion of collective bargaining, recognized by Article 4 of the Convention, was completely absent from existing legislation. Act No. 2821 on trade unions and Act No. 2822 on collective bargaining, strikes and lock-outs were also in contradiction with the Convention. They were based on the Constitution whose articles went into some detail as far as trade unions were concerned. For example, article 51 (7) required a person to be employed for ten years in order to establish a trade union. Thus, it would not be sufficient to amend Acts Nos. 2821 and 2822, but the Constitution itself on the points dealing directly with trade unions. Furthermore, he found the Government representative's statement to be negative with respect to the three points raised by the Committee of Experts. In particular, the argument that the Government could not change the law on collective bargaining because the social partners opposed it was not a good one. When legislation was in contradiction with the Convention, the Government had to amend it even if social partners did not agree with this.

The Workers' member of Italy stated that the obstacles to free collective bargaining noted by the Committee of Experts were all the more serious because the State played an important role in the national economy. As to the determination of the most representative trade unions, this right should first of all belong to the workers even if, as was the case in Italy, legislation could override their choice.

The Workers' member of Greece asked three questions of the Government representative concerning the Convention. With regard to the question of representatives, what did he think of the hypothesis in which a trade union represented more than 50 per cent of the employees in an enterprise but had less than 10 per cent of the workers in a branch? Moreover, was it correct that a worker who wished to change over from one sector to another and who wished to change trade unions needed to sign an expensive authenticated document? With regard to arbitration, what were the conditions for determination by the parties of the members of the arbitration body? Another question related more to Convention No. 87 which had been ratified recently. It would be useful if the Committee were to be informed of the reasons why the other Turkish trade union confederation (DISK), which was a member of the European Confederation of Trade Unions was not part of the workers' delegation to the Conference.

The Workers' member of Germany associated himself with the statements made by the other Worker members and particularly with the statement of the representative of the Confederation of Turkish Trade Unions. It was regrettable that with regard to the definition of public servants contained in Article 6 of the Convention, the Government still maintained its previous stance. While quoting the 1983 General Survey, the Government representative should have specified that the Survey gave a very narrow definition of the concept of public servants. The conclusions adopted by the present Committee in 1991 had requested the Government to change its attitude on this point and the absence of progress in this respect should also be deplored.

The Government member of Germany welcomed the presence of the Chairman of the largest Turkish Confederation and stated that it would have been useful if the latter had indicated if what had been said by the Government representative on the opposition of the social partners to an amendment to the conditions of representativity for collective bargaining purposes was correct, and in this case, the reasons for the opposition.

The Workers' member of Spain recalled that freedom of association was based on the right to bargain collectively and the right to strike. Even in the event of Turkish trade unions allowing restrictions on the right to bargain collectively, the supervisory bodies of the ILO should consider the situation as being contrary to the proper application of the Convention.

The Government member of the Netherlands stated that he was very pleased to hear that Turkey had ratified a number of very fundamental human rights Conventions, including Conventions Nos. 87 and 151. However, ratifying Conventions was not only a question of a declaratory effect but should also be put into practice by way of legislation.

The Government representative stated that, in the case of the numerical requirements, he had only made a factual statement about the positions of the two most representative social partners. There was a very clear agreement amongst the parties to retain the existing legislation. He was not in a position to commit his Government as to what action could be taken in the future but he thought that the positions of the social partners on this issue should be considered as indicative of the Government's future attitude. It would nevertheless take the Committee of Experts' comments into account in its continuing dialogue with the social partners. The cases of compulsory arbitration and public servants represented important issues, but his Government had recently ratified very relevant international Conventions and was trying not to go beyond the limits set out in the legislation, nationally and internationally. The fact that compulsory arbitration had been exercised in a very limited manner was sufficient evidence of this. He reiterated that sincere dialogue would be continued with the social partners and that the ILO would be informed of any developments that took place.

The Committee took note of the comments of the Committee of Experts and the statement by the Government representative. The Committee considered three questions relating to the Convention. It took note of the Government representative's statement that compulsory arbitration was only resorted to in very precise circumstances, and was only possible within the framework of a set of proceedings in which both social partners were involved and was only used in very exceptional circumstances. The Committee took note of the statement by the Government representative to the effect that the numerical limitations mentioned by the Committee of Experts were based on a consensus between the main social partners but that the Government would make an attempt at bringing about a change in line with the position of the Committee of Experts. As for the question of collective bargaining for public service employees, the Government representative had referred to Conventions which had recently been ratified by Turkey, in particular Convention No. 87, within the context of which this matter would be examined in the future. Following a discussion of the three issues raised, the Committee recalled that it had already dealt with the same matters previously and it also recalled the wishes and demands voiced at the time, namely for a change in the relevant Turkish regulations and practice. The Committee therefore requested the Government to ensure that any remaining discrepancies between the law and practice in Turkey and the requirements under the terms of the Convention be removed and that it keep the Office and the Committee of Experts informed of all developments in every detail.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

A Government representative referred to various points raised in the Committee of Experts' report concerning the application of the Convention. As regards the numerical requirements imposed by section 12 of Act No. 2822 for trade unions to be allowed to negotiate a collective agreement (10 per cent of the workers in a branch and more than half of the employees in a workplace), he stated that such restrictions reflect national consensus and predetermine the criterion to be employed, thus eliminating any element of ambiguity; the employment of these criteria render more effective the collective bargaining rights of the workers as they enable the establishment of more powerful trade unions. Other workers benefit from the same conditions reached through collective bargaining in the same sector of activity through the mechanism of extension. The speaker further indicated, however, that his Government submitted, on 1 June 1991, a draft Bill to the Parliament which envisage the lifting of the 10 per cent numerical requirement. The information on the draft Bill will be communicated to the ILO subsequently.

As regards the provisions for compulsory arbitration in certain situations, the speaker indicated that resorting to compulsory arbitration in cases where a strike is postponed is not a part of the collective bargaining process but a procedure exceptionally applied for finding a solution. He indicated that during 1990 the collective bargaining system has been widely and effectively employed and gave statistical information on the subject.

Concerning the situation of public servants, the Government representative stated that the national legislation classifies public servants in three categories: civil servants, contract employees and manual workers. The great majority of those who are employed in the public enterprises are workers, and they enjoy the rights of free trade unions and of free collective bargaining. Contract employees in the public economic enterprises continue to enjoy their rights to become members in trade unions and to collective bargaining. The speaker indicated that the appeal made to the Constitutional Court regarding the determination of the status of employees under this particular category is near completion. Civil servants have always been employed under the state personnel regime, their employment conditions being determined by law and not by contract. Within this category of employees there is no distinction if they are or not engaged in the administration of the State.

As regards the tripartite meetings, the Government representative indicated that in May 1991, a new tripartite meeting was held at the highest level as a follow-up to the two previous meetings referred to in the Committee of Experts' report. At this meeting it was decided, inter alia, to establish a commission which would finalise various draft legislation concerning work life, to organise periodically the tripartite meetings and to establish a mechanism designed to develop social dialogue and bring peaceful solutions to existing problems. The speaker added that Convention No. 144 concerning Tripartite Consultation was submitted to the Parliament for ratification.

The Workers' members, with reference to the situation of public servants, expressed serious concern that public service workers like doctors, nurses, teachers, government employees including those in municipalities have been denied their basic trade union rights to organise and to bargain collectively and that, within the last few years, even though major efforts have been made to establish independent trade unions by these public service workers, the legal status of these attempted unions within the existing Constitution and legal framework is non-existent. Employees in the public banking sector do not have the right to organise in trade unions at all, whereas they represent about one-half of all the employees in the banking sector in Turkey. As far as the private sector bank workers are concerned, they have the right to organise in trade unions, but they are explicitly denied the right to strike under Act No. 2822, though banks do not represent essential services. As regards the provisions for compulsory arbitration which have been used in areas like paper, textile, porcelain, metalworks, he considered that the Government's involvement and interference does not enable trade unions to enter into collective bargaining freely as required by the Convention. While noting that the draft Bill to repeal the numerical requirement provision has been submitted to the Parliament and that a commission was established and a tripartite meeting was held, he pointed out that there is no change whatsoever as far as public servants are concerned. The speaker asked the Government representative to indicate whether the developments to which he referred offer some hope that the right to organise and the right to bargain collectively will be given to public servants.

The Workers' member of the United States emphasised that the people cannot long endure a political repression coupled with political hypocrisy and recalled serious violations of human rights, and in particular those concerning the freedom of association and collective bargaining, which the Committee has been noting for 10 many years. With reference also to the Wagner Act adopted in the United States in 1935, he stressed that Convention No. 98 is intended to promote collective bargaining for purposes of industrial peace. He considered measures adopted by the Turkish Government to be impediments to peaceful resolution of employment disputes. The possibility to postpone any strike for 60 days on the grounds of national security, even in industries like the production of porcelain, of textiles or paper; prohibition of strikes in such branches as the banking and oil industries; compulsory arbitration as a substitute for collective bargaining: all these limitations on the right to strike are limitations on the collective bargaining process. It is only through a genuine agreement and not through the imposition of a settlement that collective agreement can be realised. Taking into account the gravity and the duration of the violations, as well as the failure of the Government to appreciate the urgency of the situation, the speaker proposed to mention this case in a special paragraph of the present Committee's report.

The Workers' member of Germany said that the only new information received today was that there had been tripartite discussions in May 1991. The Committee of Experts had asked the Government of Turkey to clarify the situation as regards public servants but the Government representative had repeated old arguments that had earlier been dismissed by the Committee on Freedom of Association in Case No. 1521. The exclusion from collective bargaining of persons not engaged in the administration of the State was neither compatible with the requirements of Article 6 of the Convention nor with Turkish law. Indeed, the Constitution of Turkey showed a surprising openness to international law. Nevertheless, a circular of the Ministry of Internal Affairs declared that the Government would not recognise the trade union rights or the right to bargain collectively of teachers and nurses who were public employees. The circular described national legislation and furthermore stated that there was no provision in the international conventions ratified by Turkey indicating that civil servants had the right to collective bargaining. Such an interpretation of national and international law was unacceptable and contrary to the Convention. In addition, the provision for compulsory arbitration in certain cases was not only contrary to Convention No. 98, but also violated Convention No. 87 which Turkey had not ratified. The legislation relating to extraordinary situations gave a regional governor the right to stop trade union activities such as strikes, and to request the public authorities to transfer public servants whose employment was found to be detrimental to public order and security and such requests were to be implemented immediately. More than ten provinces in the eastern and south-eastern part of Turkey were under extraordinary administration which had actually become the regular system in those provinces.

The Workers' member of Finland, speaking also on behalf of the Workers' member of Norway, said that it appeared from the report of the Committee of Experts that legislation in Turkey classified public servants into three categories, namely, civil servants, contract employees and manual workers. Only the latter had the right to organise and to bargain collectively. In addition to ratifying Convention No. 98, the Government of Turkey had ratified the European Convention on Fundamental Human Rights which dealt with freedom of association. According to the Constitution of Turkey, treaties ratified by Turkey which could be implemented ex officio were part of the law of the country. There was no legislation in Turkey stating specifically that civil servants not engaged in State administration did not have the right to organise. The Confederation of Turkish Trade Unions (TURK-IS), therefore, had a good legal basis on which to submit a complaint against the Government of Turkey to the European Commission on Human Rights. Moreover, DISK had prepared a complaint against the Government of Turkey concerning its legal recognition and the confiscation by the State authorities of its assets amounting to some US$500 million.

The Workers' member of the Netherlands said that is was clear from the report of the Committee of Experts that several points in Turkish legislation should be changed. At an earlier meeting of the Conference Committee, the Government representative had made a remark implying that the Turkish Constitution might be contrary to the Convention. The Constitution had certainly not been amended; it would be interesting to hear from the Government representative whether, following its re-examination of certain questions, the Turkish Constitution had been found to be in accordance with the Convention, or not. Reffering to the attitude of the Turkish Employers' Association (TISK) that no legislative change was necessary, the Workers' members reiterated their long-held view that changes were necessary, an opinion shared by the Committee of Experts and the Governing Body. It would be interesting to know the view of the Employers' members on the position taken by TISK. The Workers' members had again requested a special paragraph. The Employers' members had in previous years rejected that request for various reasons. On what basis could the Employers' members now reject such a request, in view of the lack of change clearly shown in the report of the Committee of Experts?

The Employers' members were astounded by the remarks of the Workers' member of the Netherlands, since up to now, neither had any proposal been made for a special paragraph, nor had the Employers members made any statement on the case at issue today. They would base their remarks solely on the report of the Committee of Experts which only dealt with the application of Article 4 of the Convention. The first point raised in that report concerned the numerical requirements imposed on trade unions to be allowed to negotiate a collective agreement, i.e. a trade union had to represent at least 10 per cent of the workers in a branch and more than half the employees in a workplace. According to the Committee of Experts, it could be accepted that the most representative unions had preferential or exclusive bargaining rights. In other words, the smaller unions were excluded, giving the same result as would be obtained by setting a specific percentage. The two concepts could be justified but there was no reason for either one or the other to be considered restrictive under Convention No. 98. In any event, the Government representative had stated that a draft law had been drawn up to suppress that numerical requirement, which was a good thing. The second point concerned compulsory arbitration in certain situations. According to the Government representative, that measure was only applied in extreme situations and had never been used in practice; if that were true, it proved that the Government did not resort systematically to such a procedure to interfere in collective bargaining. The high number of strikes tended to confirm that supposition. The third point concerned the classification of public servants into three categories of which only one, manual workers, had the right to organise and to bargain collectively; it seemed that the situation could be improved. That was, perhaps, a subject to be taken up in the tripartite discussions which had begun in the country. In any event, that was a good way to prepare for the necessary legislative changes. Be that as it may, there had been substantial progress concerning the application of the Convention, compared to the previous situation.

The Workers' member of Greece said that, while there had been some progress in comparison with the previous situation, much remained to be done to institute true freedom of association in Turkey. While welcoming the fact that the Government had abrogated the law prohibiting the trade union DISK, he said that the Government should restore the union's assets.

The Workers' member of Turkey said that there were serious and repeated violations of Conventions No. 98 in his country. Strikes were categorically prohibited in certain sectors. In the same sectors, compulsory arbitration prevented free collective bargaining. In sectors where strikes were theoretically possible, the Government could defer them for 60 days, which for obvious socio-psychological reasons was equivalent in fact to discouraging possible strikers. When a strike actually took place, the forces of order intervened even if the strike was being conducted peacefully. Moreover, the composition of the Supreme Arbitration Board was very unbalanced, there being only two workers' representatives out of eight members. Finally, the classification of public servants in three distinct categories was incomprehensible and arbitrary. The fact of depriving some workers, without any real justification, of their right to organise was flagrantly discriminatory and an unfair practice in total violation of Article 6 of the Convention. The Committee of Experts had to be congratulated for having given millions of public servants in Turkey the hope of exercising their rights to organise and to bargain collectively, through the comments that it had made. The strikes mentioned by the Government representative did not prove that a liberal climate existed in Turkey but rather reflected a deterioration of the situation because of repressive legislation concerning collective bargaining. That repressive legislation, which prevented freedom of association and violated the ILO Conventions, should be repealed. The Government had procrastinated long enough and it was high time for the present Committee to insist firmly that the Government respect its international obligations so that Turkey could become a free and democratic nation.

The Government representative said that he would restrict his reply to the questions that had a direct link with the points raised by the Committee of Experts on Convention No. 98. Concerning the issue of numerical requirements with respect to the representativeness of trade unions, the Government had, on 1 June 1991, submitted a draft law to Parliament aiming to suppress the requirement for a trade union to represent 10 per cent of the workers in the industry in order to be able to bargain collectively. Regarding compulsory arbitration, the procedure was only applied in exceptional situations, that is to say when a strike endangered public health or national security. The period of deferment of a strike under such circumstances could be the subject of an appeal to the State Council. The parties could at any time resort to voluntary arbitration. The compulsory arbitration mechanism aimed not to interfere in the process of collective bargaining but to resolve conflicts. Up to August 1990, compulsory arbitration had only been applied once, but after that date it had been used eight times. The reason for that sudden increase was the Gulf War since, under such circumstances and taking into account the geographical situation of Turkey, certain strikes could have put national security in peril. Regarding the composition of the Supreme Arbitration Board, workers and employers were represented on an equal footing. That tripartite body was chaired by the Chief Justice of the Supreme Court and composed of two workers' representatives, two employers' representatives, a professor appointed by the Higher Education Board, a government representative and an expert in labour law. While the excessive number of strikes was to be deplored, the strikes nevertheless showed that collective bargaining existed because they were inherent in that process. Regarding the issue of collective bargaining by public servants, Turkish legislation used the exact working of the French version of Convention No. 98.

The Workers' members welcomed the information that a draft law had been submitted to suppress the numerical requirement for trade unions. Nevertheless, two important points continued to be a particular source of concern: compulsory arbitration and the rights of public servants to organise and to bargain collectively. The Government representative had mentioned tripartite consultations but he had not replied clearly to the comments made by the Committee of Experts on those points. The problems brought up by the Committee of Experts were not new and had been discussed in depth by the present Committee in 1988 and 1989. As no progress had been seen regarding the two above-mentioned points, the conclusions of the Committee should go in a special paragraph in order to prompt the Government to take the required measures.

The Employers' members indicated that they would not support a request for a special paragraph.

The Committee took note of the information provided by the Government representative as well as the information given by the Government to the Committee of Experts. It noted in particular that three tripartite meetings had been held, in March and July 1990 and in May 1991, in order to consider possible amendments to be made to the legislation to bring it into conformity with the Convention, and two committees had been set up for that purpose. The Committee also noted that a draft law had recently been submitted to Parliament concerning the numerical requirements imposed on trade unions for entering into collective bargaining. The Committee recalled with concern that the problems raised regarding the application of the Convention had been under consideration for close to ten years and the Committee again expressed the very firm hope that the tripartite consultations would continue and that the long-awaited progress could be noted in the near future. The Committee requested the Government to provide precise information as soon as possible on the measures taken to remove any obstacles to voluntary negotiation of collective agreements and to recognise the right of public servants not engaged in the administration of the State to negotiate collectively their conditions of employment.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative stated that Turkey had recently gone through an important political, social and economic process. An integral part of this dynamic process had been the progress achieved in the area of industrial relations. Important improvements were brought to the labour legislation in June 1986 and 1988. In 1988-89, the Government's efforts continued to the same end, with regard to both domestic legislation and international agreements, including the recent submission to the Parliament of the ILO constitutional amendments of 1986. The speaker welcomed the positive reference made in the Committee of Experts' report about the improvements brought by laws Nos. 3449 and 3451 of June 1988. This evolutionary process would have to be pursued on the basis of tripartite dialogue and consensus.

As regards Convention No. 98, the Committee of Experts referred in its comments to three issues under Act No. 2822 of 1983 on Collective Bargaining, Strikes and Lockout. The first issue concerned the requirement of trade unions having a membership of at least 10 per cent of the workers employed in a specific branch of activity and more than 50 per cent of the workers employed in the enterprise or the workplace, so that they could be qualified as a party to negotiate a collective agreement. This issue had been duly considered by the Government, which also undertook consultations with the workers' and employers' associations. The speaker reiterated that the concurring positions of the employers and workers on this issue had remained unchanged. The Government, therefore, in the continuing absence of any formal request by both social partners to change this numerical criteria, did not find itself presently in a position to launch any legislative initiative. It would, nevertheless, continue to maintain this issue under consideration on the basis of tripartite principles. He added that under the present legislation, minority unions were effectively allowed to function freely and had such rights as to make representations on behalf of their members and to represent them in cases of individual grievances. Furthermore, 2,454 collective agreements had been signed in 1988 alone covering 629,000 workers, i.e. one-third of all unionised workers.

With regard to the second issue, namely the intervention of the Supreme Arbitration Board in dispute-settling in certain situations, the Government representative stated that, as urged in the Committee of Experts' report, the application of this procedure was in fact restricted to cases where work stoppage due to a strike would endanger the life, personal safety or health of the whole or the part of the population. In the exercise of this power, the Government and the judiciary had been extremely careful not to exceed the limits intended by the law-maker. Indeed, since the enactment of this Law in 1983, the Government had only implemented this measure once on 22 March 1989 when it decided to postpone the implementation of the decision of a strike by the iron and steel workers. The Government decision had been subsequently brought by the workers' union to the Administrative Court of Appeal and before the court could pass a judgement on the case, the Government had decided to lift the postponement. The strike had in fact been going on for the last 45 days involving 23,000 workers. This procedure was governed by constitutional rules strictly restricting its exercise to exceptional situations. Furthermore, the law guaranteed the repeal procedure on any such Government decision, therefore ruling out any possibility of arbitrary action. Furthermore the composition of the Supreme Arbitration Board had been improved by Act No. 3451 of June 1988 so as to provide for a more balanced tripartite representation. The speaker further stated the high number of strikes (156 in 1988) and the participating workers (30,000 in 1988) did indicate the presence of effective use of the right to strike in Turkey, the workdays lost in 1987 and 1988 in strikes reached record highs, around 1.9 million work-days each year.

The third issue concerned public servants and their right to collective bargaining. The speaker reminded the Committee that the Turkish Government had not yet signed Convention No. 151 on Labour Relations (Public Service) of 1978. Furthermore, Article 6 of Convention No. 98 provided that this Convention does not deal with the position of public servants, nor shall it be construed as prejudicing their rights or status in any way". Those public servants who, under Article 6, are not dealt with by Convention No. 98, are defined by Act No. 657 on the State Personnel Regime. Therefore, the Committee of Experts' report clearly referred to another category of persons in public service and whose status is in fact governed by Decree No. 233. There had been a recent development with regard to this issue: article 3 and other sections of Decree No. 308 of 18 January 1988, which prohibited the contracted personnel of the public enterprises from signing and benefiting from collective agreements, had been declared unconstitutional by the constitutional courts. Therefore, these employees will very shortly recover their rights to collective bargaining.

The speaker concluded that his Government had taken note of the Committee of Expert's observations and would be pleased to supply the Committee with more detailed information at a later date.

A Worker member of Turkey stated that once again the Committee had been unable to note any real progress concerning this case. The Government had merely repeated arguments which had been consistently rejected by this Committee, the Committee of Experts and the Committee on Freedom of Association. This could not possibly result from a lack of dialogue, since both Workers and Employers had always offered a constructive dialogue over many years, since 1983 to be exact. Furthermore, this could not result from lack of assistance since there had been three direct-contact missions, two technical missions, some 18 reports of the Committee on Freedom of Association, hours of discussions, pages of observations, and conclusions of this Committee with which the Government had always seemed to agree. Why then cannot this present Committee note any progress?

The answer to that question requires an assessment from a broader perspective, which involved one basic argument raised by the Government, which was that "Turkey is in a phase of rapid development concerning all spheres of life and all parts of society... improvement of labour legislation has been a priority objective and as it stands now is a part of the 'evolutionary' process of the labour life in Turkey". The speaker stated that the labour legislation here in question had never been and would never be a part of this evolutionary process in labour matters; it was an integral part of a system imposed upon Turkish workers and the Turkish society under extraordinary conditions, at a time when Turkey was entirely under martial law and when practically all trade union activity was prohibited. It was a system designed to curb all trade union rights and liberties, which was best described in a report of the Director-General's representative following his fifth and last visit to Turkey: "...Laws Nos. 2821 and 2822 (respecting trade unions and collective agreements, strikes and lock-outs respectively) constituted a legal straightjacket in which the trade unions found themselves, faced with interference in or control of practically every activity that unions should normally be able to carry out, free from any state intervention..."

As regards the argument that amendments had been brought to the labour legislation, these modifications failed to address major problems relating to ILO principles, such as: exclusion of public servants from the right to organise, interference in the administration and activities of trade unions, excessive restrictions on the right to strike and problems related to collective bargaining. To this day, teachers both in private and public institutions, just like some 2 million public servants were still denied the right to organise.

To sum up, another full year had passed by and nothing had changed; the Government had made promises which it had not kept; no consultation whatsoever had taken place and violations were still occurring. Perhaps the time had come for this Committee to note that this attitude could no longer be tolerated.

A Worker member of the Federal Republic of Germany stated that the Committee of Experts' report established clearly that there were still serious difficulties in Turkey with regard to collective bargaining. Workers were still deprived of the right to negotiate their working conditions. The numerous limitations on the right to strike in Turkey extended far beyond the essential public services. In numerous sectors, workers were facing extremely difficult conditions and were subjected, in case of dispute, to an arbitration procedure which was not adequate since they could be constantly placed in a minority position because of the composition of the Arbitration Board. By and large, free collective bargaining was not possible in Turkey, strikes could be suspended and workers could have to give up their right to strike, under the threats of heavy fines and prison terms of up to eight months in certain circumstances. This serious situation should be examined and put to an end.

A Worker member of United Kingdom stated that he could have repeated almost word for word what he said last year because hardly anything whatsoever had changed. The speaker strongly reiterated that the right to strike was fundamental to trade unionism, since it was the only tool available to workers in a dispute when all other means of arguing their case had been exhausted. No one could argue that the right to strike existed in any realistic form in Turkey; furthermore, large numbers of workers in Turkey had no right to strike at all; in addition, where this right was recognised, there existed a whole series of laws prohibiting certain actions perfectly legitimate in other countries and circumstances, such as the right to collect money to assist strikers and the right to establish picket lines around an undertaking which was on strike.

As regards the right of public servants to joint trade unions, the Government advanced that it had no obligations whatsoever to civil servants since it had not signed Convention No. 151; the speaker reiterated that Convention No. 151 did not override Conventions Nos. 87 and 98 in the case of countries which had signed it, and in the case of countries which have not signed Convention No. 151, this did not affect their obligation to give civil servants the right to organise. A country which refused that right to public servants could not claim to be fulfilling its obligations under the Conventions. The workers had hoped to see fundamental changes in the situation but, unfortunately, there was no progress whatsoever.

A Worker member of the Netherlands stated that this was a very serious case, which had been discussed again and again, and where the Government had made many promises which it had never fulfilled in a meaningful way. Both the Committee of Experts and the Committee on Freedom of Association had expressed themselves on the case and the comments of the latter had been just as severe as those of the former. Since the Employers fully participated in the supervisory activities of the Committee on Freedom of Association, they should subscribe completely to its judgements. This was a long-standing case, involving violations of trade union rights and also of human rights: trade union organisations had been closed down and trade union leaders had been locked up, many of them sentenced to long prison terms. Accordingly, it was very hard to believe that the Employers would not accept mentioning Turkey in a special paragraph of the report, with a view to drawing the attention to the fact that this was a serious case, which had been discussed year after year without major improvements.

The Workers' members, after expressing their full support to the previous Workers' speakers, emphasised certain points which, in their opinion, showed the seriousness of the situation:

(1) the Government had undertaken in 1986 to re-establish freedom of association and collective bargaining, but it had not fulfilled its commitments and the fundamental problems subsisted since the improvements concerned only minor issues: these were the conclusions of the Committee of Experts and of the Freedom of Association Committee; consequently, the legislation and practice were unacceptable and should be modified;

(2) the interference in trade union affairs, and particularly in collective bargaining, could not be tolerated; in spite of the repeated requests of the Workers' members, the Government had not ratified Convention No. 87, which was regrettable since the right to collective bargaining depended on the right of association;

(3) in spite of the technical assistance and the missions from which this country benefited, the three problems mentioned by the Committee of Experts still had not been resolved:

- concerning the numerical requirements giving bargaining rights, the Government maintained that it would not take any initiative as long as social partners would not agree, which did not make any sense;

- as regards the disputes settlement procedure, some progress had been made but there were still important restrictions;

- finally, public servants did not have the right to organise or to bargain collectively although their number was very high. All this showed that there was no satisfactory progress.

A Worker member of the United States insisted on the extreme seriousness of this case, a case so serious in fact that the Committee of Experts highlighted it by pointing this Committee's attention to certain conclusions of the Freedom of Association Committee mentioned in paragraph 25 of the General Report. Furthermore, workers who were members of the tripartite delegation of United States, in a pre-Conference briefing, had especially expressed their concern on this case after consideration of the Committee of Experts' observations. Furthermore, he specifically approved the previous statements of the Workers' members.

The Employers' members noted that during the present discussions, new facts had been introduced which had not been mentioned by the Committee of Experts in its report, and thus, that they would not deal with them. During these last two years, the present Committee had noted two points: first, Turkey had ratified Convention No. 98 but not Convention No. 87 and, when this Committee mentioned the conclusions of the Freedom of Association Committee, it referred only to the conclusions concerning Convention No. 98. Although these two Conventions are linked, problems concerning exclusively Convention No. 87 should not be discussed in this Committee. Secondly, during this year and last year's discussions, certain speakers mentioned that some new legislative texts had contributed to worsening the situation; in this respect, the Employers' members indicated that the Committee of. Experts, this year, had examined with interest certain legal texts which could bring about certain improvements.

The Committee of Experts had criticised on the one hand the numerical conditions imposed on trade unions so that they be authorised to bargain collectively and, on the other hand, the obligation to accept compulsory arbitration in certain cases. The Government had explained to the Committee of Experts why it did not seem appropriate to amend the legislation, but the Committee of Experts without listening to the Government's arguments told it directly in its observations what to do. The Employers' members called attention to this method by the Committee of Experts, which they could not get used to. They pointed out that, in their opinion, the national legislation should provide for a reduction of the numerical criteria presently prescribed. The Committee of Experts could have answered to the Government's arguments and could have given further explanation to demonstrate, for instance, that the conditions established were excessive and that they could prevent the establishment of new unions, or that powerful unions could use them not only to compete with weaker unions but also to eliminate them. Concerning compulsory arbitration, the Committee of Experts had considered that it was justified only to prevent strikes presenting a risk to the life, security or health of the population. The Committee of Experts had not pointed out in the present case the principle it had mentioned in the Netherlands case, which permitted restrictions to collective bargaining for compelling reasons of national economic interest. The Government had declared that compulsory arbitration would only be resorted to in exceptional circumstances (presenting a danger to the citizens' health or national security); in this respect, the Employers considered that a certain convergence of opinions between the Government and the Committee of Experts existed. The Employers' members criticised the formula regularly used by the Committee of Experts to define the cases in which it was justifiable to limit the right to strike in respect of Convention No. 87. The Committee of Experts had also used that formula in its observations on the implementation of Convention No. 98 in Turkey, as regards compulsory arbitration. The Employers' members did not agree with the criteria used by the Committee of Experts since, in their opinion, it was not realistic nor acceptable to only take into account the risk to the life of the population: the State should be able to intervene before this stage. In any event, they added that it should be possible, through dialogue, to avoid excessive state interference in free collective bargaining but that such interference should not be limited only to situations where the population was really in danger. The huge number of work-days lost because of strikes, mentioned by the Government representative, showed that there were indeed strikes in this country and that compulsory arbitration had not been used as often as certain speakers had suggested.

As regards freedom of association and the right to bargain collectively of public servants, the Committee of Experts had requested the Government to submit the relevant instruments and information for examination.

The Employers' members noted in conclusion that the problems raised by the application of Convention No. 98 had not yet been settled. The situation should continue to improve as regards the problems mentioned by the Committee of Experts and this should be mentioned in the conclusions of this Committee which would have to discuss again this case.

The Workers' members, referring to the Employers' members' intervention on the Netherlands' case, emphasised that the Committee of Experts and the Direct Contacts Mission had dealt with that case on the basis of Convention No. 87, ratified by the Netherlands, although it would have normally been dealt with under Convention No. 98. In the present case, this was exactly the reverse situation; the applicable Convention was No. 98 and it could not be totally separated from Convention No. 87. In practice, there had been discrimination for union activities; public servants had been punished trade unions had been dissolved; and trade union leaders had been prohibited from exercising their union duties. In the present political situation, profound changes and improvements could have been expected but, unfortunately, they had not occurred yet. This Committee should insist that the Government adopt measures that would be compatible with the various Conventions it had ratified, and even those it had not ratified.

A Worker member of the Netherlands added, concerning the Dutch case, that the problem, in short, was interference in collective bargaining. The Workers would have liked to use Convention No. 98 but this was not possible because the Netherlands had not ratified it; so they invoked Convention No. 87. As regards the Employers' statement on the state interference in collective bargaining in the netherlands' case, he pointed out that the Committee of Experts had defined the criteria to be fulfilled to permit what it called "legitimate interferences in collective bargaining". As was made clear in the observation of the Committee of Experts and in the report No. 265 of the Freedom of Association Committee, if these criteria are respected, there would be no illegitimate interferences in collective bargaining, but these criteria should be duly verified.

A Worker member of Greece expressed his total disagreement with the Employers' argument that powerful unions would fight less powerful unions, from which they concluded that "weak" unions could be prohibited. Obviously, there could be competition between unions in a pluralist system - that is the essence of democracy - but this competition should take place through dialogue and action in favour of the workers; that could not justify any intervention whatsoever from the authorities or the employers. The speaker specifically asked the Government representative to explain why the representatives of DISK, an important Turkish trade union confederation, was still prohibited and why its representatives did not attend the Conference.

The Government representative stated that cases should not be discussed in the abstract. In that context, as regards the numerical requirement issue, he stated that there had been no request from the most representative workers' or employers' organisations to change the present legal status; this was just a factual situation.

As regards the second issue, the Government had not excessively used the Supreme Board of Arbitration; in fact it had only used it once recently, and the case had been withdrawn shortly thereafter. In addition there were very effective judiciary safeguards, which guarantee the lawful usage of this mechanism by the Government. Furthermore, the criteria used by the Committee of Experts on this issue were based on Convention No. 87, by which the Government was not bound because it had not ratified it. Concerning the third issue, the Government would compile all the information available and transmit it to the ILO organs in due time.

The Government representative recalled his preliminary remarks to the effect that Convention No. 151, which was clearly a specialised Convention on public service, did not bind the Government because it had not ratified it. Convention No. 98, however did not cover public servants; the speaker reiterated his previous comments on the trade union rights of public servants.

As regards other comments to the effect that nothing much had been done in Turkey to adjust policies in line with the ILO principles, the speaker informed the Committee that his Government had just submitted to the Parliament for ratification four new Conventions (Nos. 59, 123, 142 and 144), and had just ratified the European Social Charter; the ILO Constitutional Amendments had also been submitted to Parliament and should shortly be ratified. As regards the DISK situation, the judgments rendered by the courts are now in the process of appeal, which may take a long time, as would be the case in many countries. Before a final judgment was issued in these cases, the Government could not take any measures for obvious reasons.

The Workers' members expressed their complete agreement with these conclusions and proposed that they be included in a special paragraph of the report in view of their extreme importance. The Employers' members did not agree with that proposition.

The Committee has taken note of the information given by the Government representative, and of the detailed discussion that took place in the Committee. The Committee noted with concern the conclusions of the Committee of Experts that, even if trade union legislation had been improved in some respects, the amendments to that legislation had resulted in no changes whatsoever in regard to the points raised by the Committee of Experts. The Committee wished to recall in this connection the conclusions of the Committee on Freedom of Association. The Committee noted with regret the position adopted by the Government and expressed the firm hope that in view of the serious divergencies that had existed for a number of years, the Government would adopt in the near future all necessary measures as a result of genuine tripartite consultations, in order to give full effect to the comments made by the Committee of Experts and to improve the situation concerning full compliance with the Convention in law and in practice. The Committee hoped that the progress awaited for such a long time would be in evidence in the next report of the Government, so that discussion could be continued within the supervisory bodies.

The Workers' members expressed their complete agreement with these conclusions and proposed that they be included in a special paragraph of the report in view of their extreme importance. The Employers' members did not agree with that proposition.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

The Government has communicated the following information:

The Government wishes to inform that the Parliament has approved on 25 and on 27 May 1988 the Laws Nos. 3449 and 3451 containing amendments proposed both by the Government and by the legislators during the legislative process to the Laws Nos. 2821 and 2822.

It explains that the work on the amendments which has been carried out on a tripartite basis started immediately after the Government took office at the end of last year. The objective followed has been to adapt the existing industrial relations legislation to Turkey's international commitments without prejudice to the need for sound industrial peace. Utmost efforts have been deployed to incorporate in the amendments, to the extent possible and within the limits allowed by the Constitution, the views of all parties and the suggestions made by the ILO mission.

The Government states that the following elements have been taken into account: the shortcomings observed during almost five years of implementation of two Acts; the amendment proposals put forward by the workers and employers and conformity with the principles laid down by relevant ILO Conventions ratified by Turkey, as well as the relevant court decisions and the views of academics. With a view to protecting industrial peace, particular attention was paid to the preservation of the balancing role of the State in the relations between workers and employers as well as the codification requirements.

Within the context of the above approach, the following changes were made to the Trade Union Act No. 2821...

- conditions required for founding members will be simplified;

- it will be possible for the executive officers of the trade unions to assume functions in the management or audit boards of public undertakings and establishments;

- conditions required for being elected to the mandatory organs of the trade unions have been further facilitated;

- continuity has been established with respect to the duration of the functions of the shop stewards;

- possibility of being re-elected to the mandatory organs of trade unions has been increased from four to eight terms;

- the scope of the mandate for auditing the trade unions has been limited and clearly defined;

- conditions required for opening new trade union branches have been facilitated;

- persons carrying out religious functions and students will be able to join trade unions;

- in cases where an employer terminates the employment contract of a worker because of his membership to a trade union, the employer shall be liable to pay compensation which shall not be less than the worker's total annual wage;

- the definition of the political activities of the trade union will be clarified;

- trade unions will be authorised to spend a part of their revenues for social purposes;

- the provision which stipulates that the assets of dissolved organisations shall be transferred to the State Treasury will be repealed; the fate of the assets of dissolved organisations will be determined by the organisations themselves. If this cannot be materialised, or if the organisation is closed by a court decision, its assets shall be transferred to a fund to be administered on a tripartite basis and these funds shall be used for occupational orientation, vocational training and rehabilitation of the workers;

- trade unions will be audited once in each election period, instead of yearly auditing;

- members' contributions will also be paid to the trade unions which have obtained the certificate of competence;

- the shortcomings observed and the abuses made in the determination of the competent trade unions will be eliminated by amending some sections i favour of trade unions;

- the controversies faced in the acquisition of membership will be removed by assuring the right to the membership. Moreover, the inconveniences encountered by the trade unions in their organisation in the workplaces will be completely eliminated by repealing the obligation of the trade unions to transmit one copy of the workers' membership registration forms to the employer;

In the Collective Bargaining Strike and Lock-out Act No. 2822 the following changes have been made:

- the collective labour agreement will not be extended in cases where a competent trade union exists and the implementation will be brought in line with the collective labour agreement system;

- the scope of strike and lock-out prohibitions on certain activities and services has been further narrowed;

- the rules to be observed by the employers during a lawful strike have been clearly defined;

- the number of authorised strike pickets has been doubled;

- the provision concerning temporary strike prohibition applicable in a state of emergency or under the martial law has been annulled;

- the prohibition of forming groups around the establishment during a lawful strike or lock-out will be annulled;

- the possibility of having access to shelter for the strike pickets will be provided;

- the amount of fines to be paid by any employer recruiting a worker during a lawful strike will be increased;

- the Parliament has also annulled the provision granting authority to the Supreme Arbitration Board to renew any expiring collective labour agreement with the changes it deems necessary, in case a strike or a lock-out is not permitted, or whenever emergency administration rules apply, as in time of war or general or partial mobilisation;

- the composition of the Supreme Arbitration Board will be changed so as provide for equal numbers of representatives of workers, employers and government, under the chairmanship of the Chief Judge of the Labour Division of the Court of Appeal.

In addition a Government representative stated that his Government firmly believed in pursuing constructive dialogue with the ILO, and recalled that in its report, the Committee of Experts referred to Act. No 2822 on collective bargaining, strikes and lockouts, in particular to article 12 concerning numerical criteria required from unions in order to obtain collective bargaining certificates and article 33 concerning the possibility of imposing compulsory arbitration under certain conditions. These issues had been under consideration by the Conference Committee since 1984. On every occasion, the Government had informed the Committee extensively of the developments taking place in Turkey. In the dynamic process whereby important political, economic and social developments had taken place in Turkey in recent years a primary objective was giving priority attention to freedom. In this process the perfection of labour legislation had naturally been given due consideration. Within this framework, amendments were made in labour legislation in June 1986 and 1988, taking into account the views of the workers' and employers organisations. Since the International Labour Conference in 1987 Turkey had a particularly loaded political calendar which included an important national referendum in September 1987 resulting in the lifting of all the remaining restrictions on the participation of some political leaders in elections, which were in fact held immediately after this referendum. Acts Nos. 3449 and 3451 adopted on 25 and 27 May 1988 contained amendments to Acts Nos. 2821 and 2822 respectively on trade unions and on collective bargaining, strikes and lockouts. The Government representative stated that he was confident that the Committee of Experts would study these amendments carefully and refer to several of the improvements that these amendments contained in his written communications. The Government believed that the recent amendments together with the improvements already achieved in 1986 correspond to many aspects which had been previously raised in the present Committee with regard to Turkey's labour legislation. The new amendments also contained certain improvements which had not been discussed by the Conference Committee. The Government had been succesful in its efforts to honour its promises of reviewing and improving the labour legislation. The Government had primarily directed its efforts towards adapting the legislation to the changing needs and the new developments in that country. The views of the ILO had also been taken into consideration. As to the numerical criteria required from unions to negotiate collective agreements (article 12 of Act No. 2822, mentioned by the Committee of Experts), the Government representative stated that his Government had duly considered this issue, and had closely consulted the workers' and employers' organisations. The Government's position was that a social consensus on this issue would be a prerequisite for any legislative initiative. In the absence of any written request either from workers' or employers' organisations to amend the existing provisions concerning numerical criteria and in view of the insistent verbal representations of those organisations to maintain the existing provisions the Government had found no grounds at this stage for initiating any legislative modifications. What mattered was that the collective bargaining process had actually reached a level of unprecedented effectiveness in Turkey. There now existed in every branch of activity a number of trade unions which met the 10 per cent requirement and that these trade unions had been able to negotiate an increasing number of collective agreements concluded in 1964-1979 before the adoption of the new legislation, was 1,751 per year, whereas since the adoption of the present law, from 1984 to 1987 an average of 2,577 collective agreements had been signed each year. This constituted a solid indication that the machinery for voluntary negotiation of collective agreements was more fully used under the present legislation. As regards the comments of the Committee of Experts concerning the intervention of the Supreme Arbitration Board in the settlement of disputes (articles 33, Act No. 2822), the Government representative stated that this article had a very limited scope of application for the following reasons: it was provided only for exceptional cases of public health and national security; it could only be implemented if those exceptional circumstances continued to prevail; the Supreme Arbitration Board consisted of an equal number of representatives from the government and the employers' and workers' organisations, guaranteeing a balanced judgements; it did not only apply to strike but also to lockouts; and under the law, it was possible to lodge an appeal with the Administrative Court of Appeal, against the decrees of the Council of Ministers and thereby to request the suspensions of proceedings. This provision was also embodied in the national constitution. Article 33 had only been used by the Government once but before the Supreme Arbitration Court could intervene the parties concerned had reached agreement. The Government representative added that the right to strike was currently used very widely and was subject to no serious restrictions in Turkey. The Government representative provided some figures which illustrated a very considerable and gradual increase in the number of strikes since 1979. As a result of the recent amendments to Act No. 2822, 165,000 workers had obtained the right to strike following the lifting of the prohibition on strikes in certain activities. In conclusion, he stressed that freedom of association, collective bargaining and strikes had now materialised in Turkey to a much greater extent than before, and had certainly reached a respectable level compared to other member States of the ILO. He reiterated his Government's interest and determination in pursuing its efforts to achieve further progress and stated that his Government was also determined to maintain its fruitful co-operation with the ILO to achieve those objectives. The Government was confident that it could count on the ILO's constructive criticism as well as on its encouragement.

The Workers' members recalled that the issues of freedom of association and collective bargaining in Turkey had been discussed for quite a number of years. Turkey had been under martial law during which numerous trade union leaders were prosecuted and persecuted. They hoped that Turkey would shortly ratify Convention No. 87 and noted that this Convention was closely linked to Convention No. 98, the application of which was being discussed. They recalled that this case was not discussed in 1986 in view of the promises made by the Government, and that in 1987 this problem gave rise to a very long and difficult discussion that concluded with a statement that there were serious discrepancies between the Convention and national legislation and practice despite the previous promises that the Government had made on several occasions. It was stated that if these promises were not fulfilled in the near future, the Conference Committee would be obliged to use other measures. In this respect they underlined that there were still complaints against the Government of Turkey before the Committee on Freedom of Association, and that the new laws enumerated in the written communication of the Government which appeared to contain improvements, in fact perpetuated a totally deplorable situation. Finally, they requested the Worker member of Turkey to provide some additional information in this respect.

The Worker member of Turkey stated that the declaration by the Government representative did absolutely not reflect the real situation in Turkey. None of the amendments introduced responded to the comments of the supervisory bodies which had referred to basic provisions of the legislation that were not in line with the principles of the ILO. Once more the Government had not fulfilled the promises it had made in 1986 and 1987 when it had pledged to take the necessary steps to apply the Convention and the principles of freedom of association. Perhaps the Government had taken into consideration the observations of representatives of employers' and workers' organisations when it had elaborated these amendments, but it was obvious that these observations had generally been ignored and that the observations of the Confederation of Turkish Trade Unions were totally or almost totally ignored. These amendments had not solved the major problems: the exclusion of important categories of workers (public servants, teacher etc.) from the right to organise; the interference of the public authorities in trade union activities; the right to freely elect trade union representatives, the excessive restrictions on the right to strike and the problems affecting collective bargaining. As regards, for example, political activities of trade unions, or the so-called elimination of the provision that allows for temporary prohibition of strikes during emergencies or martial law - that the Government considers as amendments introducing improvements - the present situation was in fact no different at all from the one under the military government. In fact, the series of laws and decrees that had been introduced actually aggravated the situation, e.g. Decree No. 308 concerning State enterprises which prohibited their workers from exercising collective bargaining. Another government decree had established three employers' organisation for the public sector (all types of public institutions, State enterprises, etc.) and imposed compulsory affiliation to these organisations which depended on the Minister of State, and were led by high-level officials. The objective of these three organisations as mentioned in the Government's programme for 1988 was to carry out the functions previously assigned to the Government Committee for the co-ordination of Collective Agreements in the Public Sector with the aim of imposing the remuneration policy of the Government. There existed serious restrictions on the right to strike as well. The Government representative had said that the possibility of postponement of strikes had been used only on one occasion. This only proved that none of the strikes that had taken place had endangered the public health or national security. Furthermore, almost everything was considered to be essential service for the purposes of prohibiting the right to strike with the result that this right was in effect denied to about 500,000 workers. Solidarity strikes were also prohibited and so were go-slow action and general strikes. All violations of these prohibitions resulted in penal indictment. These restrictions had not existed before 1980. Finally, the speaker reiterated that nothing had improved and that there remained only empty promise. He requested the Government representative to indicate whether the Government considered itself at all bound by the principles of freedom of association embodied in the ILO Constitution.

The Workers' members considered that in the light of the supplementary information given by the Workers' member of Turkey it would have actually been better had those recent laws not been adopted at all. It was obvious that a profound change in the legislation was still necessary. The Workers' member referred to recent information from trade union sources and stressed that the new laws seriously restricted collective bargaining and trade union action. A few days ago, the European Confederation of Trade Unions had adopted a declaration on these points. The Workers' members added that Turkish trade unions were not allowed to draft their own statutes or freely elect their representatives; nor could they freely exercise their activities since it was possible to dissolve or suspend them by simple administrative order. The activity of DISK was in fact prohibited and the leaders of this organisation, who faced trial, or who were condemned because of their trade union activities, were unable to resume their trade union tasks. Under these conditions one should stress that the so-called improvements were really limited to a very small percentage of the points that had been mentioned in the course of ILO technical assistance, and that the new laws had considerably complicated the situation as regards the remaining points. Nor had there been any true tripartite consultations although this had been promised by the Government. Collective bargaining and trade union activity had been blocked through the interference of the authorities. Workers' organisations were unable to structure themselves in a logical way. Consequently, the new reforms did not really fulfil the promises of the Government and implied that the Conference Committee was back to square one.

The Employers' members summarised the questions raised in the observation of the Committee of Experts concerning the application of this Convention. The Committee of Experts had as yet not had the opportunity to examine the new laws adopted this year following tripartite consultation. In the previous year, the Committee of Experts had considered that certain improvements had been made in the legislation, but that restrictions had remained on free collective bargaining. If one compared the present situation to the one prevailing at the beginning of the discussions, it was obvious that there had been some progress. Free collective bargaining could only be achieved gradually, especially in a country that had just emerged from a very long period of martial law, a period that was radically different from the present as regards freedom of association. The Government representatives had provided recent figures that showed some results in the sense that the number of collective agreements had gradually increased. He had also stated that the procedure of compulsory arbitration had been applied only once. Under these conditions one did wonder why the Government did not repeal the provisions concerning compulsory arbitration, as requested by the Committee of Experts. In contrast, the employers did not believe that an increase in the number of strikes was a sign of progress. The Government representative and the Workers' member of Turkey had delivered radically different statements concerning the fulfilment of the promises of the Government as regards the application of the Convention, and it was not up to the Employers' members to decide who was right. It was obvious that was up to the Committee of Experts and not to the Conference Committee, to examine the new amendments in the new laws. On the other hand, the Employers' members viewed positively the lifting of the state of emergency and the holding of elections, which were linked to the topics referred to by the Committee of Experts, and that constituted progress towards democracy. In conclusion, they stressed that the remaining restrictions on the application of Convention No. 98 should be eliminated and that this should be achieved on tripartite basis.

The Worker member of Finland, speaking also on behalf of the Workers' members of Denmark, Norway and Sweden, recalled that the conclusions of the Committee of Experts pointed to the existence of serious limitations and contradictions between legislation and Convention No. 98, and that the Conference Committee had indicated the possibility of resorting to other measures if it found that there was lack of progress. The reply of the Government of Turkey contained some minor improvements, which were amendments to the Trade Union Act No. 2821 and to the Collective Bargaining Strike and Lockout Act No. 2822. These amendments were incorporated in Laws No. 3449 and 3451 adopted on 25 and 27 May 1988. The above-mentioned Workers' member had compared the amendments to these laws with the principles of Convention No. 98 and had concluded that these amendments did constitute some progress, but did not in any way satisfy the principles in Convention No. 98 and in the ILO Constitution relating to freedom of association and trade union rights. The Workers' member of Turkey had already pointed this out and the above-mentioned Workers' members associated themselves entirely with his comments. They reminded the present Committee that the 1982 Turkish Constitution also contained several provisions that were in contradiction to Convention No. 98 and the principle of freedom of association embodied in the ILO Constitution. As examples he cited section No. 51 prescribing that only employees with ten years' of service were entitled to be elected as trade union officials, section No. 22 prohibiting trade unions from participating in any political activities whatsoever, section No. 53 prescribing not more than one collective agreement per enterprise and section No. 54 prohibiting solidarity strikes, as well as several other provisions. In the Trade Union Act No. 2821 several provisions which were applied to trade unions subjected trade unions to supervision by governments, to police searches on union premises, and stipulated that trade union leaders had to seek the permission of the Ministry of the Interior before leaving Turkey on any trade union conference, that all press releases had to be submitted to the Public Prosecutor twenty-four hours in advance, and that all political activities were prohibited for trade unions. In conclusion, he reminded the present Committee that the Government representative had not indicated whether his Government intended to repeal these provisions; however, the above-mentioned Workers' members strongly felt this should be done as soon as possible.

The Worker member of the United Kingdom stated that when he first saw the list of amendments brought by the Government representative of Turkey, outlined in the written communication of the Government he did hope that the matter would finally be settled and that Turkey could be welcomed to the free world as a State having complete trade union freedoms. Of course, the Committee of Experts should examine all the new laws but that did not prevent the Conference Committee from expressing its views too. What the written communication of the Government revealed was interesting, but what it concealed was vital. He would like to ask several questions in this connection. First, did Turkey recognise the right of public servants to organise freely? The answer was no because the Workers' member of Turkey told the Committee that this was not so. The legal restrictions he had described affected some 1.8 million Turkish workers. To what extent were strikes affected by those restrictions? The Government representative had told the Conference Committee that only essential services were prohibited from striking. However, a closer look at the list of the essential service revealed that it covered water, electricity, gas, coal mining, land, sea and air transport systems, health services, chemist's shops, educational institutions, day nurseries, old-age homes, etc. In fact, strikes were either prohibited or seriously restricted for all public services. Second, did Turkey recognise the right of workers to chose their own trade union leaders? Perhaps it did, but he had noted one vital point. The law stipulated that a trade unionist who had spent more than six months in jail for offences under this law could not be elected as trade union leader or as trade union founder. Yet some of the most courageous, heroic and devoted trade unionists he had known had spent more than six months in jail, fighting for what they believed in. Third, did Turkey recognise the right of trade unions to establish their own constitutions, laws and regulations? The answer was, again, no. The Trade Unions Act in Turkey provided detailed model laws and rules that trade unions had to follow. In his opinion, this was contrary to the principles of freedom and trade union rights. So the Committee of Experts might eventually examine those new laws and give its opinion on them, but the present Committee could already state that they did not fully meet the request made by the Committee of Experts in its report. There had been great hope that after a period of dictatorship, one of the first things that Turkey would do as a free country, would be to restore trade union rights, because that was the hallmark of a true democracy. Yet he had to express his deep concern that the omens were not very good for trade unions in Turkey. The Government of Turkey was exhibiting the new laws almost like a proud father, but in his opinion, the legitimacy of the offspring had yet to be established. The Government had still a long way to go towards real progress, and one tentative, timid step in this direction was not enough.

The Worker member of Greece recalled that at this very time the Prime Minister of Turkey was on an official visit to Athens, and that everyone could imagine the significance of this event for the relations between Greece and Turkey. The Greek workers supported an improvement in these relations. Yet this spirit would not prevent the speaker from supporting the Workers' member of Turkey in its comments regarding legal restrictions and prohibitions on trade union activities in Turkey. In this respect be noted that a joint declaration had been adopted on 10 June 1988 in which the two main trade union organisations in Turkey, TURK-IS and DISK, declared that trade union organisations in Turkey were prohibited from functioning normally, and called for the presumption of all activities of DISK. The Government representative had told the Committee that the right to strike existed, that progress had been made, and that trade union freedoms existed as well in Turkey. The speaker asked whether the Government could indicate when DISK would be able to function again, and when would its assets that had been confiscated by the dictatorship be returned to it.

The Worker member of the United States was impelled to make several comments after the statements of the Vice-Chairman of the Workers' members and the Worker member of Turkey. The Workers' members always welcomed remedial measures to rectify persistent offences to international labour Conventions, and so they welcomed the steps taken by the Government of Turkey. Yet such remedial measures often contained hidden dangers, namely, that they were more cosmetic than real. An example was the provision enabling the Government of Turkey to prohibit or postpone any strike that appeared to be harmful to public health and national security. The Government representative stated that this provision had never been used, and should not give rise to concern. Yet the speaker felt deeply ill at ease with such a provision. He pointed to the existence of the Supreme Arbitration Court and its powers under Article 54 of the Turkish Constitution and stated that the very existence of this provision had a chilling effect and was a deterrent for any strikes. For that reason all those laws should be repealed.

The Worker member of Austria recalled that at about the same time that the Parliament of Turkey had adopted the two laws in May 1988, the report of the Committee on Freedom of Association was approved by the Governing Body of the ILO. This report cited Act No. 2821 among the laws needing review in order to bring it into line with Convention No. 98. Thus, the Committee on Freedom of Association expressed the same concerns as the Conference Committee. Consequently, when the Committee of Experts would analyse these laws, its conclusions would be obvious, that these laws go only half way towards meeting the recommendations of the Committee on Freedom of Association and that the Government had only partly met these recommendations. In conclusion, he recalled that a number of public service trade unionists had been condemned under this law, yet no motives for this condemnation had been published, and they could not defend themselves. He asked the Government representative when these motives would be published.

The Employer member of Turkey considered that the criticisms which had been expressed during the discussion had not been justified. In this regard he cited two observations made by the Committee of Experts in their report: (1) that the Government should adopt legislative amendments to promote collective bargaining; and, (2) the Government should furnish information on the evolution of the situation in this regard. The speaker noted that on the one hand a new law amending several provisions of the law on collective agreements had just come into force. Therefore, the first request of the Committee of Experts had been acted upon. On the other hand, it was necessary to await the opinion of the Committee of Experts on this new law before adopting Conclusions in this respect. He felt that it was preferable to await the information furnished by the Committee of Experts next year on the legitimacy of these new laws.

The Worker member of the Netherlands noted the information given by the Government in its written communication, particularly the long list of changes made to the Trade Union Act, No. 2821. He observed that this list did not contain the repealing of restrictions on trade union freedoms; it contained only the easing of such restrictions. In this regard he pointed to terms such as "conditions will be simplified" and "further facilitated". This easing of impediments was not enough when the legislation was tested against the provisions of Convention No. 98. He further noted with respect to the experiences of the last few years in this Committee that some Governments had received a special paragraph while others, whose behaviour had not been much better, had avoided this special paragraph by handing in lengthy replies, by participating in the dialogue in a soft spoken and sympathetic way and by making one small promise or expressing vague expectations. He stressed that governments should be evaluated on the basis of facts and not on the basis of their presentation.

The Government representative noted that, with respect to the observations of the Committee of Experts, tripartite consultations had been undertaken with regard to the points raised in the report. The Minister of Labour and the Prime Minister had discussed these matters with representatives of the Workers' and Employers' organisations. The outcome of these consultations had not had an impact on the two points raised in the report of the Committee of Experts because: firstly, both the Workers' and Employers' organisations had insisted that the Government maintain the positions of numerical criteria for qualifying for collective bargaining; and, secondly, with regard to the Supreme Arbitration Board intervention, the constitutional provision could not be amended until due process had been completed. With regard to the observations raised outside the scope of Convention No. 98, a very distorted picture had been painted before this Committee. Important progress had been made in the laws and it would be premature in this Committee to pass any judgement on the merits of the new amendments before the Committee of Experts had actually examined their contents in a very objective and impartial way. In concluding, he cited figures which indicated the extent to which the tripartite consultations actually reflected the Turkish workers' views in the new amendments. In Law No. 2821, out of a total of 18 recommendations made by the Turkish workers' associations, 11 had been accommodated, either partially or completely, in the new amendments. Furthermore, the Government brought four amendments which had not been raised by the workers' associations. Under Act No. 2822, out of 17 recommendations made by the workers' associations, seven of them had been accommodated. Furthermore the Government brought four other improvements which had not been raised by the workers' associations. Therefore, 52 per cent of the workers' recommendations had been accommodated in the new amendments.

The Workers' members welcomed the frank and open dialogue which occurred in the present Committee in this case. The Workers' members therefore proposed, in the light of the interventions by the Employers' members and the Employer member of Turkey, the following conclusion:

The members of the Committee had been able to have a dialogue on the subject of two Acts adopted at the end of May which should provide solutions to the majority of concerns that had been expressed over a period of years. The discussion in the Committee showed that there was a number of positive elements but also a large number of unsatisfactory points. As the Acts had not been in force until May, the Committee of Experts was requested to examine them closely and compare them with the promises made earlier with the recommendations of the Committee on Freedom of Association as well as with those of the ILO which provided assistance in this respect. Real tripartite consultation should be resumed and the Government should be prepared to revise the present Acts to align them more fully with Convention No. 98 as well as with the principle of freedom of association.

The Workers' members formally proposed that these conclusions be included in a special paragraph. This request was justified in light of the importance of this case which had been the subject of discussion for a number of years. A special paragraph did not contain a judgement or condemnation; it contained positive as well as negative aspects. The objective of these conclusions and their inclusion in a special paragraph was to give a mission to the Committee of Experts and to indicate clearly to the Government the orientation of new tripartite dialogue.

The Employers' members noted that a number of questions that had been raised concerning this case had still not been completely solved. However, the focal point in this case was now the new Acts which had been adopted and they would have to be examined by the Committee of Experts. The Employers' members were convinced that the Committee of Experts, when examining this case next time, would not only look at the Acts but would also bear in mind the views and information mentioned in the course of this discussion. With regard to the conclusions proposed by the Workers' members, the Employers' members were not able to support the proposal in its present form, especially if it was to be included in a special paragraph, because it contained an evaluation of a new Act which the Experts had not been able to examine.

The Workers expressed their regret over the Employers' members' failure to agree to the proposed conclusion and its inclusion in a special paragraph. Although they would not call for a vote, they indicated their intention to initiate an information campaign, through regional and international trade unions, on their position concerning this situation and its examination in this Committee.

The Government representative could not fully agree with the merits of the proposal. Firstly, because there had been no conclusion reached in this Committee on the matters contained in the proposal. Secondly, because it would not contribute to the undertaking of tripartite consultations as such consultations would be pursued in any case.

The Worker member of Austria addressed a question to the Government representative of Turkey concerning information as to when the grounds for the ruling on the dissolution of the DISC organisation would be published.

The Government representative replied that, according to relevant authorities, the text of the decisions together with the justifications would be published by the end of the summer, 1988.

The Committee noted the written and oral information supplied by the Government and the detailed discussion which took place within the Committee. It noted, in particular, that Parliament recently had approved amendments to the trade union legislation, which will be examined by the Committee of Experts on the basis of the previous discussions held in this Committee, the recommendations of the ILO missions, the promises made by the Government and the conclusions of the Committee on Freedom of Association. It hoped that these amendments would meet the concerns expressed last year by the Committee of the Conference. It further expressed the firm hope that, in view of the fact that serious divergencies had existed for many years, the Government would soon take all necessary measures, after real tripartite consultation, to give full satisfaction to the comments of the Committee of Experts and to ensure full compliance with the Convention, both in law and practice.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

The Government, in following up the objectives mentioned in the letter addressed to the Director-General, dated 30 April 1986, from the former Minister of Labour and Social Security, has given serious consideration to the matters related to industrial relations in Turkey.

In this connection, as a result of the consultations which were undertaken by the Government firstly with the other social partners and subsequently with a representative of the Office during a recent consultative technical mission and in the light of the desires expressed both by the workers and employers as well as by the ILO, and by taking into account points both related to these desires and to other factors, the Government has found it necessary to take up this matter anew in a more comprehensive manner in order to amend, in accordance with the changed national conditions, the Trade Unions Act No. 2821 and the Collective Bargaining, Strikes and Lock-out Act No. 2822. To this effect, it would naturally be necessary to consider certain provisions of the Constitution.

The Government is of the view that all necessary measures should be taken to realise a labour legislation in full conformity with ILO principles and standards. To this end the Government will engage again in meaningful tripartite consultations in Turkey. The Government also hopes to be able to benefit from the technical advice that may be rendered by the Office in this regard.

The Government intends to commence this exercise immediately and hopes that it will be concluded in the shortest possible time, provided that all the parties concerned fully and constructively participate in it, and an appropriate possibility of a legislative process be available.

In addition, a Government representative referred to the written information communicated by his Government and stated that the remarks formulated by the Committee of Experts with regard to the Convention No. 98 had been the object of a detailed examination on a tripartite basis and that a real effort had been made together with the employer's and workers' organisations to ensure better conformity with ILO standards in this field. He added that Act No. 3299 of 3 June 1986 embodied a certain number of amendments to Act No. 2822 of 1983 on the question of collective bargaining, strikes and lock-outs. Technical consultative missions visited Turkey at the invitation of the Government in April 1986 and April 1987 in order to discuss legislative amendments which were under consideration. The Government concluded from this that there were still a certain number of legislative problems, which were due to the fact that the law of 1983 had been adopted during the period of martial law in the 1980s, a period which had justified certain special measures. The political and social situation had improved considerably since then, at the national and international level. As a result the Government considered that all the necessary legislative measures could be and should be taken in order to ensure that the provisions of the labour law were in conformity with the principles and standards of the ILO, and to eliminate any element that was incompatible with either of these. The Government intended to undertake immediately a more thorough re-examination of the question which it hoped to complete as soon as possible, provided all the parties concerned participated fully and in a constructive manner in this process. He pointed out that the Government was also determined to maintain its fruitful co-operation with the ILO so as to endeavour to achieve its objectives.

So far as Convention No. 111 was concerned, the Government representative indicated that the state of emergency under Act No. 1402 would be lifted as from 19 July 1987 in the five provinces in which it was still applied. Independently of the existence of martial law, a certain number of guarantees existed in the national legislation against the risk of discriminating against someone on the basis of their political opinions. Article 10 of the national Constitution provided that everyone is equal before the law regardless of their political opinions and established the principle that the bodies of the State and administrative authorities must act in conformity with the principle of equality before the law. Furthermore, under article 125 of the Constitution, he said that all acts of the administration were subject to appeal. In the light of these provisions, out of a total of 4,530 public officials who had been dismissed, 3,999 cases have thus been re-examined up to today. In the five provinces in which martial law was still applicable, only five officials had been dismissed in the course of the past three years; he added that the last dismissal occurred in February 1986. Application of martial law No. 1402 was thus accompanied by the necessary legal procedures which ensured that its application did not lead to discrimination of a political nature or of any other kind. Furthermore, this law had not been applied since February 1986 and would cease to be in force once the state of emergency was lifted as from 19 July 1987.

The Worker member of Sweden stated that the case of Turkey had been discussed in the Committee for several years. Every time, the Government had committed itself to undertake measures to improve the situation but in reality, very little had been achieved. The exercise of the right to collective bargaining had been made practically impossible because of the exaggerated requirements in the law regarding the representative nature of trade unions and the right to strike, which was limited by a procedure which permitted postponement of a strike for a period of 60 days. This meant that it was extremely difficult to exercise the right to strike. She said that the right to collective bargaining was in fact an extension of the most basic trade union right: namely, freedom of association. The right to bargain collectively could only be fully exercised if workers' and employers' organisations had the basic right to organise their activities and to formulate their own programmes of action without interference from the public authorities. Much also remained to be done in that area. She said that Swedish trade union organisations were deeply worried about the trade union situation in Turkey and they hoped that the necessary legislative amendments would be adopted as soon as possible, so as to ensure the full application of ILO Conventions in the field of freedom of association, the right to bargaining collectively as well as the exercise of the right to strike and of lock-outs.

The Worker member of Greece expressed his agreement with the statement of the Worker member of Sweden, and informed the Committee that one of the Turkish trade union organisations had been banned. Under these conditions, he said that one could not consider that the right to collective bargaining existed freely in Turkey. The Government representative should be requested to provide information about the trials of Turkish trade unionists as well as information about the status of freedom of association in the country.

The Worker member of Turkey insisted upon the fact that the Government has not honoured the promise which it had made in 1986. It was regrettable that no progress had been achieved this year. He said that the technical evaluation mission of the ILO which had visited Turkey in April 1987 had described the general trade union situation in a perfectly clear manner. Acts Nos. 2821 and 2822 concerning trade union organisations, collective bargaining and strikes violated the fundamental rights recognised in Convention No. 98 and were not in conformity with the principle according to which these organisations have the right to organise their own administration and their activities and to formulate their programmes of action freely. The right to establish trade unions or to be members of them was forbidden to public officials, teachers in private schools, people working in religious institutions as well as to students who work. Candidates for trade union office should not have been sentenced for violating the provisions concerning collective bargaining and strikes. He pointed out that it was necessary to have worked for at least ten years before being eligible for trade union office. He added that any kind of political activity was forbidden to trade unionists. This meant automatically that leaders of trade union organisations and confederations could not exercise trade union functions when they accepted a post in the government or in a political party. The authorities had the right to make enquiries from time to time purely at their discretion on the internal affairs of trade union organisations and confederations. Ten per cent of workers occupied in a given branch of activity, as well as more than 50 per cent of workers employed in the establishment or enterprise, had to belong to trade union organisations in order for the right to collective bargaining to exist. Severe restrictions were imposed as far as the right to strike was concerned in several sectors which were not considered as essential services. The Government was entitled to postpone a strike and to submit the conflict to compulsory arbitration to a body controlled by the Government itself. The Government had not only failed to take any measures to give follow-up to the assurances it had given it 1986, but it had further aggravated the situation in extending to public enterprises, the application of Decree No. 2333 concerning private contracts of employment. The workers to whom this Decree applied did not have the right to be members of a trade union organisation or to take advantage of the provisions in collective agreements. Furthermore, three so-called public employers' organisations had been created in 1986 and these represented the State enterprises and public institutions as far as negotiations were concerned. Through these organisations which are managed by public officials, the Government settles everything which would normally be submitted to collective bargaining.

The Worker member of France referred to certain facts which showed that in practice there were severe restrictions on freedom of association, freedom of expression and the right to collective bargaining. In addition, the headquarters of the trade union organisation TURK-IS had been surrounded by the police at a time when about 700 trade unionist activists were assembled there with a view to submitting a petition to Parliament concerning social and political problems. He added that there had been a delay in granting a visa to the President of DISK, a trade union organisation which has been declared illegal, to attend the International Labour Conference. This was a violation of the principle of pluralism and of freedom of association which was not acceptable. The Turkish Government had requested adhesion to the European Economic Community. He pointed out that this was not simply an economic structure, but was also a political entity which required that traditional democratic principles should be applied in its member States. If the Turkish Government wanted to have the support of the European trade union movement in its request for adhesion to the EEC, it was necessary for it to correctly apply the international commitments it had undertaken, and especially to respect the basic Conventions of the ILO.

The Worker member of the United States stated that the information provided by the Worker member of Turkey illustrated the gravity of the actions of the Turkish Government. Section 37 of Law No. 2821 prohibited any kind of political activity on the part of trade union organisations and their confederations, which was in direct contradiction to Article 1 of Convention No. 111.

The Worker member of Norway recalled that the Norwegian Federation of Trade Unions had submitted a representation in 1982 against Turkey with regard to the violation of Convention Nos. 98 and 111 by Turkey. Five years later, Turkish legislation still seriously violated these two basic Conventions. In spite of its promises, the Turkish Government had not yet taken the necessary measures to amend Section 12 of Law No. 2822 which made it necessary for trade unions to satisfy unreasonable standards regarding their representative character before they could exercise the right to engage in collective bargaining. So far as Convention No. 111 was concerned, it was important to recall that, according to international standards on human rights, the establishment or maintenance of martial law was not justified, beyond cases of exceptional emergency which affected the life of the nation. Under these conditions, the maintenance of martial law in Turkey constituted a serious violation of the fundamental human rights recognised in article 15 of the European Convention on Human Rights, as well as in the ILO Constitution and ILO standards, and in particular in Convention No. 111. He stated that the maintenance of martial law could not be cited by the Government as a justification for not complying with the obligations it assumed when it ratified Convention No. 111. Since several years, this legislation had led to serious numerous instances of discrimination against public officials and against candidates for public office. The employees concerned have either been dismissed, transferred or sent to other regions on the basis of criteria that do not ensure a guarantee against discrimination based exclusively on political motives. Consequently, the Committee should express its profound concern about the maintenance of martial law in the five provinces concerned, as the provisions of this law involve serious violations of Convention No. 111 with respect to public officials. He added that the Committee should also note with regret the slow pace of the efforts undertaken to ensure the application of Convention No. 98 at the legislative level.

The Workers' members recalled that the right to collective bargaining was closely linked to freedom of association which was a fundamental principle of the ILO Constitution. Previous declarations showed that blatant violations had been committed in this area. An organisation had been dissolved, trade union leaders had been sentenced and the rights to collective bargaining and freedom of association had been ridiculed. The conditions imposed on trade union organisations if they were to enjoy the right to collective bargaining highlighted the fact that the aim of this policy was to ensure that only one trade union organisation could exist. The Government should not have the right to impose such measures; rather, the decision should be left to trade union leaders. In 1986 the Committee had due to the lack of time, decided not to discuss the case of Turkey but to take account of the written information provided by the Government and the assurances which it had given. The Committee had nevertheless insisted upon the fact that it was waiting to see if the promises given by the Government would be fulfilled as soon as possible in such a way as to enable the Committee to note progress at its following session. It was necessary to recognise that these promises had not been kept. What was even more serious, immediately after the discussion in 1986, the Government had held a press conference to emphasise the fact that the trade union situation in Turkey had not been criticised at the international level and to say that the problems which existed would be settled without external intervention. The Workers' members pointed out that such procedures did not facilitate dialogue and did not make it possible to achieve progress. Today, the Government representative had indicated that martial law would be lifted shortly in a certain number of provinces. In effect, the Government still appeared to want to preserve the possibility of intervening arbitrarily by talking of so-called dangers to the security of the State. In the written information communicated with respect to Convention No. 98, the Government had indicated that it intended to re-examine the question in the most appropriate manner but that it would obviously be necessary to take account of certain provisions of the Constitution. The Workers' members felt that the ambiguity of this remark was embarrassing. It implied that the Turkish Constitution contained provisions contrary to the Convention, or that the Convention as a whole could not be applied. The information provided in the context of Convention No. 111 was also not clear; no worthwhile responses had been provided in reply to the observations of the Committee of Experts. The reply did not show that any concrete progress has been achieved; it spoke only of promises and of declarations of intent. Under these conditions, they pointed out that the Government must take seriously the concerns expressed by the Workers' members.

The Employers' members recalled that, with respect to Convention No. 98, detailed reports had been provided by the Government. Although the Committee of Experts had been able to note with interest the development which had occurred in Turkey, considerable restrictions still limited the right to collective bargaining. With the assistance of the Office these problems had been discussed with the Government. The Government had now indicated that new proposals were under consideration with a view to modifying the legislation. In the light of this, the Government hoped to be able to discuss the details with a new mission from the ILO. It seemed that the Government was on the right track but it would still be desirable for the Government representative to specify if it was really the intention of his Government to take all the necessary measures to ensure that all the points raised by the Committee of Experts would ensure compliance with the Convention. They pointed out that it was also important to underline the fact, as noted in several statements made by the Workers' members, that the situation was, for the moment, still not in conformity with Convention No. 98. So far as Convention No. 111 was concerned, the Employers' members said that it would be desirable for the Government representative to indicate if the decision to lift martial law had been taken officially and if it would be published in the Official Gazette. They added that little information had been provided on the details of measures that had been taken, in particular as regarded dismissals and prison sentences. Further information was necessary since for the moment the situation was not in conformity with the Convention.

The Government representative recalled that a certain number of amendments to law No. 2822 of 1983 had been adopted in 1986 so as to ensure a better application of Convention No. 98, but given the fact that certain points still remain unresolved, the Government had decided to re-examine the question in a detailed manner. He added that this would take a certain amount of time since in a parliamentary system legislative reform did not depend solely upon the Government. It was essential to obtain the agreement of the social partners so as to ensure that a certain awareness existed in Parliament as well as in public opinion. Furthermore, it was necessary to develop a constructive dialogue with the ILO. He pointed out that political, economic and social life had evolved in a positive manner during the past few years which could not fail to have a favourable influence upon industrial relations. The Government was ready to comply with its international obligations and to take the measures necessary to amend its social legislation in such a way as to eliminate any element incompatible with international labour standards. He said that this would be accomplished in a period of time compatible with political, economic and social developments. It was Parliament which had taken the decision to lift martial law in the provinces where it was still applicable, with effect as from 19 July 1987. There would therefore no longer be any unresolved questions under Convention No. 111. So far as the demonstration organised by the Confederation of Turkish Trade Unions was concerned it should have requested prior permission, which it had never done. It was therefore normal that complications had ensued. His Government was conscious of the fact that in order to be able to adhere to the EEC, it would have to conform to the standards which prevailed in that organisation. Finally, a law of general amnesty had been submitted to Parliament. Parliament had adopted a law which permitted a certain reduction in prison sentences.

The Committee took note of the information communicated by the Government and its representative. It expressed its concern with regard to the serious divergencies which still existed between the national legislation and practice and Convention Nos. 98 and 111, in spite of the promises which had been made by the Government on several occasions. The Committee expressed the hope that these promises would be fulfilled in the very near future and that it would be able to note progress at its next session. If this was not the case, the Committee would be obliged to have recourse to other means with a view to ensuring conformity with the Conventions.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

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

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

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

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

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

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

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

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

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

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. The Committee had requested the Government to initiate a new consultation process with the social partners with a view to amending section 34 of Act No. 6356 to ensure that it did not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes that the Government once again indicates that the existing system is a product of a long and well-established industrial relations system in Türkiye and that it does not prevent parties wishing to enter into sectoral agreements at the regional and national levels. Sections 2, 33 and 34 of Act No. 6356 introduce workplace-level collective labour agreements, enterprise (company) level collective labour agreements, group-level (multiemployer) collective labour agreements, and framework agreements, and the social partners had reached a consensus on the protection of this system during the drafting of the law. The Committee recalls that its request to amend the law is based on the principle that collective bargaining should be possible at all levels and that legislation that unilaterally imposes a level of bargaining or makes it compulsory for bargaining to take place at a specific level raises problems of compatibility with the Convention. In practice, this issue is essentially a matter for the parties, who are in the best position to decide the most appropriate bargaining level including, if they so wish, by adopting a mixed system of framework agreements supplemented by local or enterprise level agreements (General Survey of 2012 on the fundamental Conventions, paragraph 222). Accordingly, the law should not restrict the possibility of the parties to negotiate at all levels and should allow them to decide autonomously if they wish to do so. Therefore, the Committee once again requests the Government to consider the initiation of a new consultation process with the social partners, with a view to amending section 34 of Act No. 6356, to ensure that the parties in the private sector wishing to engage in cross-sector regional or national agreements can do so. The Committee requests the Government to provide information on any developments in this respect.

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

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

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State.Material scope of collective bargaining. The Committee had noted in its previous comments that section 28 of Act No. 4688, as amended in 2012, restricted the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career, as well as disciplinary sanctions and had requested the Government to remove these restrictions on the material scope of bargaining in the public sector. The Committee notes that the Government indicates that the 2012 amendment significantly broadened the material scope of collective bargaining in the public sector and enabled public servants’ unions and confederations to participate and intervene in decisions and decision-making processes that were previously taken unilaterally by the public authorities. Many increases in the financial and social rights of public servants were adopted as a result of this process. Besides, progress was also made concerning other matters such as leave rights, introduction of disciplinary amnesty, abolition of the practice of terminating the employment of those who received reprimands during the probation period, presence of union representatives in disciplinary committees and important arrangements regarding civil servants with disabilities. The Committee also notes the observations of the KESK and the KAMU-SEN in this respect, stating that the collective bargaining framework for public employees restricts the negotiations to the economic rights and does not allow to discuss other aspects of the professional life. The Committee notes that the KESK states by way of example that there is no session to discuss women public employees’ needs and demands in the professional life and at workplaces. The Committee takes due note of the information provided and requests the Government to indicate the exact material scope of collective bargaining concerning public servants not engaged in the administration of the State, and to indicate the relevant legal provisions.

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

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

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

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

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Confederation of Public Employees’ Trade Unions (KESK), received on 31 August 2022; as well as those of the International Trade Union Confederation (ITUC), and the Confederation of Progressive Trade Unions of Türkiye (DİSK) received on 1 September 2022 which concern issues examined in this comment, and the Government’s reply thereto. The Committee also notes the observations of Turkish Confederation of Employers’ Associations (TISK) communicated with the Government’s report.

The Committee further notes that the Committee on Freedom of Association drew its attention to the legislative aspects of Case No. 3410 (Report No. 399, June 2022, paragraph 352). These matters are discussed below.

Articles 1-6 of the Convention. Scope of the Convention. Prison staff. The Committee had noted in its previous comments that the prison staff did not enjoy the right to organize, even though they were covered by the collective agreements concluded in the public service like all other public servants. The Government indicates in this regard that: (i) the relevant provisions of the ratified freedom of association and collective bargaining conventions were taken into account while drafting Act No. 4688; (ii) section 15 excepts those working in strategically important organizations and in positions that use the power of State police and intelligence, including prison staff, from the right to join and form a union and; (iii) this provision has been drafted considering that there will be no compensation for the disruptions in these public services carried out by security, justice and high-level public servants. The Committee notes with concern that despite its longstanding comments under Conventions Nos 87 and 98, the Government does not report any progress concerning the recognition of the right of prison staff to organize. It recalls in this regard that under the terms of Convention No. 98, prison staff have the right of collective bargaining, which includes the right to be represented in negotiations by the organization of their choosing. Noting the Government’s indication concerning eventual “disruption” in services carried out by the categories of workers excluded under section 15, the Committee recalls that the right to establish and join organizations and to bargain collectively through the organization of one’s choice, should be distinguished from the right to strike. The Committee urges the Government to take the necessary measures, including through revising section 15 of Act No. 4688, to guarantee that the prison staff can be effectively represented by the organizations of their own choosing in collective bargaining. It requests the Government to provide information with respect to any developments in this regard.

Locum workers and public servants working without a written contract. In its previous comment, the Committee had noted that these categories of workers are excluded from the scope of Act No. 4688and had requested the Government to provide detailed information on their freedom of association and collective bargaining rights. The Government indicates that article 51 of the Constitution recognizes the right to unionize as a constitutional right to workers, employers and public servants. Public servants are defined in section 3(a) of Act No. 4688 and persons working as a fill-in at the public institutions (locum workers) cannot be employed in any cadre or position as specified in section 3(a), and therefore cannot be members of the unions established within the scope of Act No. 4688. Noting the Government’s indications, and considering that locum work arrangements concern inter alia workers in public education and health sectors such as teachers, midwives and nurses, the Committee recalls that under Articles 5(1) and 6 of the Convention, only “members of the armed forces and the police” and “public servants engaged in the administration of the State” can be excepted from the guarantees enshrined in the Convention and the contractual status of public sector employees, or the lack thereof, should not affect their enjoyment of their rights under the Convention. The Committee requests the Government to take the necessary measures, including legislative measures, to ensure that these categories of workers can exercise their right to organize and collective bargaining, either by allowing them to join organizations formed under Act No. 4688 or by providing a framework within which they can create their own organizations. It further requests the Government to provide information on any measures taken in this respect.

Articles 1, 2 and 3 of the Convention. Massive dismissals in the public sector under the state of emergency decrees. In its previous comments the Committee had noted that following the 2016 coup attempt, a high number of trade union members and officials were suspended and dismissed under the state of emergency and that an Inquiry Commission was established to review applications against the measures taken in that context, whose decisions were appealable before administrative courts. The Committee had requested the Government to provide information on the number of applications received from trade unionists and the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning them and to respond to the allegations concerning cases of dismissal of members of the Education and Science Workers Union of Türkiye (EĞİTİM SEN). The Government indicates in this regard that: (i) the dismissal of public servants, which may include some trade union representatives by the state of emergency decrees is grounded in their membership, affiliation or connection to terrorist organizations; (ii) decisions by the Inquiry Commission can be appealed before nine branches of Ankara administrative courts that are specifically authorized by the Council of Judges and Prosecutors; (iii) as of 27 May 2022, the Commission had received 127,130 applications and issued decisions on 124,235, therefore the number of applications where examination is still pending amounts to 2,985. Within 33 months since the beginning of the Commission’s activity, 87 per cent of the applications were examined; (iv) the number of rejected applications amounts to 106,970 and the number of admitted ones to 17,265. Among the admitted applications, 61 concerned the opening of organizations that were shut down including associations; (v) there is no statistical information on the number of trade union representatives affected by the state of emergency decrees or those who have submitted applications to the courts. However, two confederations and ten trade unions dissolved due to their connection to the FETO terrorist organization have applied to the Inquiry Commission and their cases are still pending; vi) according to the figures contained in the observation of Education International, the admittance rate for reinstatement of EĞİTİM SEN members is much higher than the average rate (38.5 per cent and 11.5 per cent respectively), which shows that there is no discrimination against EĞİTİM SEN members. The Committee further notes KESK’s observations in this regard, reporting that: (i) in total, 4,267 KESK members from all public sectors were dismissed under the state of emergency decrees; (ii) more than five years after the dismissals, some of the applications of dismissed KESK members and officials are still pending before the Inquiry Commission. The organization alleges that the delay in examining their applications is deliberate and adds that the complete procedure including appeal may take up to ten years; (iii) KESK members who had signed the petition calling for an end to fighting in East and Southeast Anatolia six months before the attempted coup, and who were later dismissed under state of emergency decrees, won a case before the Constitutional Court on 26 July 2019. The Court underlined that no sanction can be imposed on these academics for having signed the petition, however, the Inquiry Commission did not take this judgment into consideration; (iv) there are no legal grounds for accusing KESK members of connection with terrorist organizations or any other organizations carrying out activities against national security. The dismissals took place arbitrarily and the employees were not informed of accusations and could not defend themselves. They still cannot avail themselves of any transparent mechanism to challenge the so-called evidence against them; and v) even though the state of emergency is lifted, governors and ministries continued to use the provisional section 35 of the Emergency Decree Law No. 375, dismissing 21 teacher members of EĞİTİM SEN from Diyarbakir on 29 November 2021. The Committee notes with deep regret, that once again, despite the Committee’s repeated requests, the Government does not provide information on the number of cases concerning trade unionists before the Inquiry Commission and administrative courts or the outcome of these cases. In this context, the Committee notes with concern the KESK observations concerning the delay in the examination of applications of unionists by the Inquiry Commission and the problems indicated concerning defence rights, examination of evidence and burden of proof. The Committee recalls in this regard that adequate protection against anti-union discrimination requires procedures that are effective and rapid, ensuring without delay independent, expeditious and in-depth investigations into the allegations. In view of the Government’s emphasis on stating that the dismissals and suspensions are based on presumed connection with terrorist organizations, and the KESK’s allegation that there is no transparent mechanism through which public officers can challenge the evidence against them, the Committee firmly recalls that in procedures concerning alleged anti-union discrimination, placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination may constitute an insurmountable obstacle to establishing liability and ensuring an appropriate remedy. In view of the foregoing, the Committee once again expresses its firm hope that the Inquiry Commission and the administrative courts that review its decisions shall carefully and expeditiously examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds.The Committee also requests the Government to provide information on how the evidence is examined and the burden of proof applied in cases concerning trade unionists before the Inquiry Commission and administrative courts. It also once again urges the Government to provide detailed and specific information on the number and outcome of applications concerning trade union members and officers before the Inquiry Commission, as well as the number and outcome of appeals against negative decisions on those applications. Finally, the Committee requests the Government to provide its comments with respect to the allegation of continued use of state of emergency powers to dismiss union members.

Article 1. Inadequate protection against anti-union dismissals. Private sector. The Committee notes that Case No. 3410 before the Committee on Freedom of Association (CFA) partly concerns the question of inadequateness of the legal remedies provided to victims of anti-union dismissals in private sector. It notes that the legal provisions in question are section 21(1) of the Labour Act (Act No. 4857) and section 25(5) of the Law on Trade Unions and Collective Labour Agreements (Act No. 6356). The Committee notes that section 21(1) of Act No. 4857 provides:

If the court or the arbitrator concludes that the termination is unjustified ... the employer must re-engage the employee in work within one month. If, upon the application of the employee, the employer does not re-engage him in work, compensation to be not less than the employee’s four months’ wages and not more than his eight months’ wages shall be paid to him by the employer.

Section 25(5) of Act No. 6356 provides:

Where it has been determined that the contract of employment has been terminated for reasons of trade union activities, union compensation shall be ordered independent of the requirement of application of the worker and the employer’s granting or refusing him permission to restart work in accordance with article 21 of the Law No. 4857. However, in case the worker is not allowed to start work, the compensation specified in the first paragraph of Article 21 of this Law No. 4857 shall not apply. Non-application to a court pursuant to the aforementioned provisions of the Law No. 4857 shall not be an obstacle for the worker to claim union compensation separately.

The Committee further notes the Government’s indication in its reply to the CFA case complainants, confirming that the national legislation does not contain provisions on absolute reinstatement to work, and instead stipulates the right of the employer to choose whether to rehire the employee or to pay an additional compensation; furthermore, according to the Government under civil law no employer should be forced to recruit a worker. The Committee also notes the observations of the DİSK in relation to this matter, indicating that the inability of the courts to order the employer to reinstate dismissed workers makes it easier for some employers to get rid of the union at the workplace by simply dismissing all active union members. The DİSK also refers to the ruling of the European Court of Human Rights in Tek Gida İs Sendikasi v. Türkiye where the court inferred from an employer’s refusal to reinstate dismissed employees and the award of insufficient compensation to deter the employer from any future wrongful dismissals, that the national law, as applied by the courts, did not impose sufficiently deterrent penalties on the employer, which, according to the Court had by carrying out large-scale wrongful dismissals, negated the applicant union’s right. The Committee further notes the allegations of the ITUC, indicating that trade unionists in Türkiye live under the constant threat of retaliation, any attempt to form unions being deterred by the dismissal of union organizers. Both ITUC and DİSK refer to numerous cases of anti-union dismissals across different sectors in their observations. The Committee recalls that in its previous comments as well, it had noted numerous allegations of anti-union discrimination, especially dismissals, in practice. In view of the recurrent indications as to the frequent occurrence of anti-union dismissals, the Committee is bound to note that the available legal remedies and sanctions against anti-union dismissals do not seem to have a strong deterrent effect. The Committee notes in this regard that pursuant to the current law: (i) judicial authorities can in no circumstances impose an order of reinstatement on the private sector employer; (ii) section 25(4) of Act No. 6356 fixes a minimum amount for “union compensation” in case of acts of anti-union discrimination other than dismissal, which is the worker’s annual wage, but in cases of anti-union dismissal, neither a minimum amount nor a cap is fixed in the law. The issue seems to be left to the discretion of the judicial authority; and (iii) the Government does not refer to any other existent penalty or sanction for anti-union dismissals, and section 78 of Act No. 6356 containing its penal provisions is silent about anti-union discrimination. The Committee recalls in this regard, that it has always considered that reinstatement should at least be included among the range of measures that can be ordered by the judicial authorities in the event of anti-union discrimination; and that the effectiveness of legal provisions prohibiting acts of anti-union discrimination depends also on the sanctions provided, which should be effective and sufficiently dissuasive; and that the purpose of compensation must be to compensate fully, both in financial and occupational terms, the prejudice suffered. In view of the foregoing, the Committee urges the Government to take all the necessary measures to revise the legislation, with a view to ensuring the provision of an adequate protection against anti-union dismissals in the private sector. Pending legislative reform, the Committee firmly hopes that the judicial authorities will consider the above principles while they exercise their discretion in the determination of the amount of “union compensation”. The Committee requests the Government to provide information on any developments in this regard.

Anti-union discrimination in the public sector. The Committee notes the observations of the KESK, once again denouncing numerous cases of anti-union discrimination against members and officials of its affiliates, including 35 transfers, 6 suspensions and 7 cases of administrative disciplinary measures including blocking promotions and a reprimand. According to the observations, the workers have appealed against several of these measures, where the cases are still pending. The Committee also notes the Government’s comments on these allegations, indicating that: (i) public servants have the right to lodge complaints or initiate proceedings against the acts of their superiors or public organizations; (ii) the KESK does not provide any plausible grounds that can establish the existence of anti-union discrimination and; (iii) all the public institutions cited in the KESK 2021 observations informed the Ministry of Labour and Social Security (MOL&SS) that the personnel transfers were necessitated by the requirements of the service. The Government makes the following indications concerning protection against anti-union discrimination in the public sector: (i) section 18 of the Law on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688) prohibits anti-union discrimination against public servants including dismissals and transfers; (ii) prime ministry circulars introduce measures to combat mobbing in both public and private workplaces and establish a helpline; (iii) the Ombudsman Institution has the power to investigate anti-union discrimination in the public sector, undertake inspections and draft yearly reports that it can publish and present to the parliament, but has no authority to impose administrative fines. The Committee recalls that it has always emphasized the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State (including those who are not trade union officers) against acts of anti-union discrimination, and to provide for effective and sufficiently dissuasive sanctions against those responsible for such acts. The Committee notes that apart from reference to section 118 of the penal code, which concerns the offence of coercion in relation to trade union membership and activities, the Government does not indicate sanctions that can eventually be imposed against the perpetrators of anti-union discrimination in the public sector, or to any compensation that may be awarded to the victims. Therefore, the Committee requests the Government to indicate whether the law allows sanctioning those responsible for anti-union discrimination in the public sector and whether compensation can be awarded to victims. If there are no such provisions in law, the Committee urges the Government to take the necessary measures in full consultation with social partners, to ensure that the law is amended with a view to ensuring an adequate protection against anti-union discrimination in the public sector. It requests the Government to provide information on any developments in this respect.

Collection of data on anti-union discrimination in private and public sectors. The Committee recalls that following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference, which requested the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors, it has been requesting the Government to provide information on the measures taken to that end. The Committee notes with regret that the Government does not report any progress in this regard. The Committee once again stresses the need to take concrete steps towards establishing the system for collecting such information and expects the Government to provide in its next report information on developments and progress in this respect.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 to ensure that it did not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes that the Government reiterates that the existent system is a product of a long and well-established industrial relations system in Türkiye and that it does not prevent parties wishing to enter into agreements at the regional and national level and adds that the MOL&SS is ready to take into consideration the amendment proposals to be made jointly by the social partners regarding section 34 if the social partners reach consensus on such changes. The Committee further notes the observation of the TISK in this regard, indicating that section 34 has long been applied as such and in their discussions prior to the adoption of Act No. 6356, the social partners reached a consensus on preserving the existing system. The Committee requests the Government to consider taking the necessary measures to initiate a new consultation process with the social partners, with a view to amending section 34 of Act No. 6356 in order to ensure that the parties in the private sector wishing to engage in cross-sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. Private sector. Triple threshold requirement. In its previous comments the Committee had noted that section 41(1) of Act No. 6356 set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. The Committee recalls that this issue was also brought up in the framework of CFA Case No. 3021. The Committee had requested the Government to continue monitoring the impact of the perpetuation of the branch 1 per cent threshold requirement on the trade union movement and the national collective bargaining machinery as a whole and to provide information in this respect. The Government indicates in this regard that as of July 2022, there were 218 trade unions in Türkiye, 60 of which, including five independent unions, passed the 1 per cent threshold required for collective bargaining. There were seven Confederations with 105 affiliate unions, including 55 unions that pass the 1 per cent threshold. Union membership rate in private sector has progressed from 10.56 per cent in January 2015, when the sector threshold was lowered to 1 per cent, to 14.32 per cent in January 2022. The Government adds that the MOL&SS is ready to take into consideration the amendment proposals to be made jointly by the social partners regarding section 41(1) if the social partners reach consensus on such changes. The Committee also notes the TISK observation indicating that granting bargaining rights to unions that are not authorized in the current legislation will disrupt the current labour peace, as trade union rivalry often prevents unions from acting together and this may hamper the conclusion of Collective Bargaining Agreements(CBAs). The Committee further notes that the DISK indicates in this regard that minority unions should have the right to represent at least their members. The Committee notes that according to the information submitted by the Government, only 27.5 per cent of all Turkish unions pass the 1 per cent threshold, the rate being 52.4 per cent among the affiliates of the big confederations, but only 4.4 per cent among independent unions. It further notes that the lowering of the branch threshold in 2015 has had a positive impact on the unionization rate. The Committee trusts that the removal of the branch threshold will have a similarly positive impact on the rate of unionization as well as on the capacity of unions, especially independent unions, to use the collective bargaining machinery. The Committee therefore requests the Government to take the necessary measures to initiate the consultation process with the social partners, with a view to amending section 41(1) of Act No. 6356 so as to ensure that more workers’ organizations can engage in collective bargaining with the employers. It requests the Government to provide information on the steps taken in this regard.

Determination of the most representative union and rights of minority unions. Regarding the workplace and enterprise representativeness thresholds, the Committee had noted in its previous comments that section 42(3) of Act No. 6356, provides that if it was determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence. It had further noted that section 45(1) stipulates that an agreement concluded without an authorization document is null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee notes with regret that the Government does not provide information on any developments in this respect. The Committee once again requests the Government to take the necessary measures to amend the legislation, in consultation with the social partners, so as to ensure that if no union represented the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members.It requests the Government to provide information on all measures taken or envisaged in this regard.

Judicial challenges to collective bargaining agent certification. The Committee notes the observations of the DİSK indicating that employers have the right to challenge the union majority certificate issued by the MOL, and pending the judicial proceedings, which might take 6-7 years, the collective bargaining process remains on hold. The DİSK refers to the case of one of its affiliates, Birleşik Metal-İş Union, which was involved in 98 court cases of this type between 2012–20. According to the DİSK, at the end of such proceedings, very often the union has already lost its majority at the workplace.The Committee further notes that according to the DİSK observations, disputes about determination of branch of activity of the workplace may also lead to lengthy court proceedings that impede collective bargaining. Noting the potentially negative impact that the proliferation of lengthy court proceedings can have on the development of collective bargaining, the Committee requests the Government to provide its comments on the issues raised by the DİSK.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had noted in its previous comments that section 28 of Act No. 4688, as amended in 2012, restricted the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions and had requested the Government to remove these restrictions on the material scope of bargaining in the public sector. The Committee notes with regret that the Government does not indicate any new developments in this respect. It is therefore bound to once again recall that while the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. The Committee recalls that in its previous comment, it had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the collective agreements concluded in the public service. Even though the most representative unions in the branch are represented in PSUD and take part in bargaining within branch-specific technical committees, their role within PSUD is restricted in that they are not entitled to make proposals for collective agreements, in particular where their demands are qualified as general or related to more than one service branch. The Government indicates in this respect that the collective agreement proposals for each service branch are determined separately by the competent trade unions in each branch and these proposals are then discussed in the technical committees established for each branch of service separately. These committees’ works are conducted independently of each other and the conclusion of an agreement in one branch does not necessarily mean that others are under obligation to conclude one too. The Committee notes that the Government’s indications do not refer to any new developments concerning the role of representative branch unions within the PSUD. It is therefore bound to once again request the Government to ensure that Act No. 4688 and its application in practice enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State. The Committee requests the Government to indicate all developments in in this respect.

Public employee arbitration board. In its previous comment, the Committee had noted that in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employee Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Government indicates in this regard, that the chair of the board is designated by the President from among the Presidents, Vice-Presidents or Heads of Departments of the Court of Cassation, the Council of State (Supreme Court for Administrative Courts) and Supreme Court of Public Accounts. According to the Government, these high courts and their judges are not connected hierarchically to the executive power and have judicial independence. Furthermore, other Board members do not represent the relevant confederation or the public employer but decide on behalf of the whole country. The Committee notes however, that the President of the Republic designates not only the chair, but seven out of eleven members of the board. It also notes the observation of the KESK, indicating that this means that most of the board members are designated by the Government. The Committee notes in this respect that as the Government is also the employer in the public sector, it is therefore a party to the negotiations on which the Board will pronounce itself. The Committee therefore once again requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

[The Government is asked to reply in full to the present comments in 2023.]

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK), received on 1 September 2021 and the Government’s reply thereon. The Committee further notes the observations of the Confederation of Turkish Trade Unions (TÜRK-IS), communicated with the Government’s report. The Committee finally notes the observations of the Turkish Confederation of Employer Associations (TİSK), received on 7 September 2021, referring to the issues raised by the Committee below.

Scope of the Convention. In its previous comments, the Committee had noted that while the prison staff, like all other public servants were covered by the collective agreements concluded in the public service, this category of workers did not enjoy the right to organize (section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688)). Recalling that all public servants not engaged in the administration of the State or those who are not members of the armed forces or the police, defined in a restrictive manner, must enjoy the rights afforded by the Convention, the Committee requested the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff could be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee notes the Government’s indication section 15 of the Act was drafted taking into account the provisions of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Labour Relations (Public Service) Convention, 1978 (No. 151). While reminding its comments under Convention No. 87 concerning the right of prison staff to organize, the Committee recalls once again that under the terms of Convention No. 98, the right of collective bargaining can be denied only to members of the armed forces, the police and to public servants directly engaged in the administration of the State; the simple fact of being employed by the Government does not automatically exclude such workers from the rights enshrined in the Convention. The Committee therefore once again requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect their rights and interests. The Committee requests the Government to indicate all progress made in this regard.

The Committee had previously requested the Government to provide its comments with regard to the observation made by the Confederation of Public Servants Trade Unions (MEMUR-SEN) on the need to ensure freedom of association and collective bargaining rights to locum workers (teachers, nurses, midwives, etc.) as well as public servants who work without a written contract of employment. The Committee notes the Government’s indication that Act No. 4688 applies to public servants, whereas locum workers do not fall with the scope of that law as they are not considered to be public servants. Recalling that locum workers as well as those employed in the public service without a written contract of employment should enjoy the rights enshrined in the Convention, the Committee requests the Government to provide detailed information on freedom of association and collective bargaining rights afforded to these categories of workers.

Articles 1, 2 and 3 of the Convention. Massive dismissals in the public sector under the state of emergency decrees. The Committee recalls that in its previous comments, it had noted the information on the high number of suspensions and dismissals of trade union members and officials under the state of emergency and reiterated its firm hope that the Inquiry Commission and the administrative courts that review its decisions would carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds. The Committee requested the Government to provide specific information on the number of applications received from trade union members and officials, the outcome of their examination by the Inquiry Commission and on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials. The Committee notes that according to the information provided by the Government, as of 28 May 2021, there were 126,674 applications submitted to the Inquiry Commission. Since 22 December 2017, the Commission delivered its decisions in respect of 115,130 applications, out of which, 14,072 were accepted for reinstatement and 101,058 were rejected while 11,544 applications are still pending. While taking note of the general statistics provided by the Government, the Committee  regrets  once again the absence of specific information on the number of trade union members and officials involved. The Committee notes with  concern  the high number of rejection cases (currently almost 88 per cent) and further  regrets  the absence of information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials. Reiterating that in line with Article 1 of the Convention, the Inquiry Commission and the administrative courts that review its decisions shall carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds, the Committee once again urges the Government to provide detailed and specific information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials. Further in this respect, the Committee recalls that it had expressed its concern at the allegation of Education International (EI) that close to 75 per cent of the members of the Education and Science Workers Union of Turkey (EĞİTİM SEN) dismissed from the public service were still without employment. The Committee regrets that no information has been provided by the Government on this serious allegation and once again requests the Government to provide its comments thereon.

Article 1. Anti-union discrimination in practice. The Committee recalls that in its previous comments it had noted numerous allegations of anti-union discrimination in practice despite the existence of a legislative framework aimed at protecting against anti-union discrimination. The Committee requested the Government to continue engaging with the social partners regarding complaints of anti-union discrimination practices in both the private and public sectors. The Committee regrets that no new information has been provided by the Government in this respect and that, rather, the Government once again refers to the existing legislative framework, which, in its opinion, adequately protects against anti-union discrimination. The Committee notes that in its observations, the KESK alleges new cases of transfers and relocations of its members. The Committee notes the Government’s indication that all transfers referred to by the KESK were necessitated by the requirements of the service and that any anti-union discrimination would be in breach of the national legislation. The Government points out that judicial remedies are available to all those concerned. Emphasizing that the guarantees enunciated in the Convention would remain a dead letter if the national legislation is not complied with in practice, the Committee therefore reiterates its previous request and asks the Government to provide information on the concrete steps taken to engage with the social partners on the issue of anti-union discrimination in practice.

In addition, the Committee recalls that following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference, which requested the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors, it has been requesting the Government to provide information on the measures taken to that end. The Committee notes that the Government reiterates that it is currently not possible to obtain reliable data on the cases of anti-union discrimination and points out the difficulties with carrying out data collection, which include the length of judicial processes and the need to make considerable arrangements in the records and databases of various institutions. While being fully cognisant of the difficulties referred to above, the Committee once again underlines the importance of statistical information for the Government to fulfil its obligation to prevent, monitor and sanction acts of anti-union discrimination.  The Committee stresses the need to take concrete steps towards establishing the system for collecting such information and expects the Government to provide in its next report information on all measures taken to that end.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. It noted in this respect that pursuant to section 34 of Act No. 6356, collective work agreement may cover one or more than one workplace in the same branch of activity, thereby making cross-sector bargaining in the private sector impossible. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 to ensure that it did not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes that the Government reiterates that Act No. 6356 was drafted taking into account the views of the social partners and that it does not restrict collective bargaining to the level of workplace or one employer. The Government indicates in this respect that any change to the current arrangements can only result from the joint will of and demands from the social partners. The Committee notes the TİSK indication that collective agreements can cover a large number of work places at local, regional and national levels at the same branches and that in the TİSK opinion, the current regulation is appropriate and strengthens the industrial peace.

While taking note of these explanations, the Committee once again recalls that in accordance with Article 4 of the Convention, collective bargaining should remain possible at all levels and that the legislation should not impose restrictions in this regard. The Committee recognizes that while the search for a consensus with regard to collective bargaining is important, it cannot constitute an obstacle to the Government's obligation to bring the law and practice into conformity with the Convention. The Committee therefore once again requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 to ensure that the parties in the private sector wishing to engage in cross-sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. Furthermore, the Committee recalls that legal exemptions from the branch threshold requirement were granted until 12 June 2020 to the previously authorized trade unions to prevent the loss of their authorization for collective bargaining purposes. Noting that the provisional exemption has expired on 12 June 2020, the Committee had requested the Government to indicate if further extension had been decided and if not, to provide information on the impact of the non-extension on the capacity of previously authorized organizations to bargain collectively and to indicate the status of the collective agreements concluded by them. It also requested the Government to continue monitoring the impact of the perpetuation of the branch 1 per cent threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

The Committee notes the Government’s indication that among the unions benefiting from the exemption until mid-2020, only one union exceeded the threshold. The Government points out, however, that workers were not left without a union when the exemption was not extended as there is more than one union in every branch of activity with a membership that exceeds the thresholds and that it is possible for workers to become members of these trade unions in the branch they work in. The Committee notes the statistical information on the number of collective agreements to which unions which were under the exemption are parties. The Committee notes that the TİSK considers that granting unauthorized unions the right to collective bargaining will impair Turkish industrial relations system and will disrupt the competitiveness and existing industrial peace. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold, the Government requests the Government to continue monitoring the impact of the branch 1 per cent threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

With regard to the workplace and enterprise representativeness thresholds, the Committee had noted section 42(3) of Act No. 6356, which provided that if it was determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information was notified to the party which made the application for the determination of competence. It had further noted section 45(1), which stipulated that an agreement concluded without an authorization document was null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee had requested the Government to take the necessary measures to amend the legislation, in consultation with the social partners, so as to ensure that if no union represented the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee notes that the Government reiterates that it would consider the proposal for the amendment to the legislation if put forward by the social partners and if such a proposal represented a broad agreement. Recalling once again that while the search for a consensus with regard to collective bargaining is important, it cannot constitute an obstacle to the Government's obligation to bring the law and practice into conformity with the Convention, the Committee once again requests the Government to amend the legislation and to provide information on all measures taken or envisaged in this regard.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had previously noted that section 28 of Act No. 4688, as amended in 2012, restricted the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government’s indication that issues that concern public servants in general, but which are not covered by the collective agreements, are placed on the agenda of the Public Personnel Advisory Board. The Committee is therefore bound to once again recall that while the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention.  Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the collective agreements concluded in the public service. In this respect, the proposals for the general section of the collective agreement were prepared by the confederation members of PSUD and the proposals for collective agreements in each service branch were made by the relevant branch trade union representative member of PSUD. The Committee had also noted the observation of the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN) indicating that many of the proposals of authorized unions in the branch were accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprived the branch unions of the capacity to directly exercise their right to make proposals. Having noted that although the most representative unions in the branch were represented in PSUD and took part in bargaining within branch-specific technical committees, their role within PSUD was restricted in that they were not entitled to make proposals for collective agreements, in particular where their demands were qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. While noting the Government’s detailed explanation regarding the PSUD membership, the Committee again requests the Government to ensure that Act No. 4688 and its application in practice enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State. The Committee requests the Government to indicate all developments in in this respect.

Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employee Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had noted that 7 of the 11 members of the Board including the chair were designated by the President of the Republic and considered that this selection process could create doubts as to the independence and impartiality of the Board. The Committee had therefore requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Committee notes that the Government limits itself to referring to section 34 of Act No. 4688, which determines the composition and working procedures of the Board. The Committee therefore once again requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

The Committee recalls that the Government can avail itself of the technical assistance of the ILO with regard to the issues raised above.

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

The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK), received on 31 August 2020, of the International Trade Union Confederation (ITUC), received on 16 September 2020, Education International (EI), received on 1 October 2020, and the Government’s detailed replies thereon. The Committee further notes the observations of the Confederation of Public Servants Trade Unions (MEMUR-SEN) and of the Confederation of Turkish Trade Unions (TÜRK-IS), communicated with the Government’s report. The Committee notes the Government’s reply to the observations submitted by the TÜRK-IS. The Committee finally notes the observations of the Turkish Confederation of Employer Associations (TİSK), received on 29 September 2020.

Scope of the Convention. In its previous comments, the Committee had noted that while the prison staff, like all other public servants were covered by the collective agreements concluded in the public service, this category of workers did not enjoy the right to organize (section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688)). The Committee had requested the Government to take the necessary measures, including legislative review, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee notes that the Government reiterates that it is forbidden to this category of public servants to establish and join trade unions due to the nature of their work and considerations of public order and safety, discipline and hierarchy, which are overarching principles in the public service administration. Recalling that all public servants not engaged in the administration of the State or those who are members of the armed forces or the police, defined in a restrictive manner, must enjoy the rights afforded by the Convention, the Committee once again requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee requests the Government to provide information on all measures taken in this respect.

Further noting that the MEMUR-SEN points out to the need to ensure freedom of association and collective bargaining rights to locum workers (teaches, nurses, midwives, etc.) as well as public servants who work without a written contract of employment, the Committee requests the Government to provide its comments thereon.

Articles 1 and 3 of the Convention. Adequate protection against anti-union discrimination. Following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference (hereafter, the Conference Committee), the Committee has been requesting the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors. The Committee notes the Government’s indication that it is currently not possible to obtain reliable data on the cases of trade union discrimination. In this respect, the Government points out the difficulties with carrying out data collection, which include the length of judicial processes and the need to make considerable arrangements in the records and databases of various institutions. The Government indicates that it is necessary to carry out work with all relevant institutions and organizations on the issue of discrimination and that these institutions have to develop their own database infrastructure and recording systems to detect trade union discrimination. The Committee notes this information and underlines the importance of statistical information for the Government to fulfil its obligation to prevent, monitor and sanction acts of anti- union discrimination. The Committee reiterates the June 2013 request of the Conference Committee and expects that the necessary work will be conducted within each relevant institution to that end. The Committee requests the Government to provide in its next report information on the measures taken in this respect. The Committee notes the TISK indication that the social partners are committed to work together in this respect. The Committee recalls that the Government can avail itself of the technical assistance of the ILO in this regard.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. In its previous comments, the Committee had noted the information on the high number of suspensions and dismissals of trade union members and officials under the state of emergency. It had noted in this respect the allegation that the state of emergency was used by the political power to target and punish certain trade unions and to exert pressure on oppositional trade unions through dismissals of their members. Firmly hoping that the Inquiry Commission (established to review such dismissals) has the necessary means to examine the relevant facts, the Committee had requested the Government to provide information on the functioning of the Commission and to indicate the number of applications received from trade union members and officials, and the outcome of their examination. The Committee had also requested the Government to provide information on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials. The Committee notes the Government’s indication that as of 2 October 2020, there were 126,300 applications submitted to the Inquiry Commission. Since 22 December 2017, the Commission delivered its decisions in respect of 110,250 applications, out of which, 12,680 were accepted (for reinstatement) and 97,570 were rejected while 16,050 applications are still pending. The Government explains that the decision of the Commission are circulated to the institutions where the persons lastly took office, which then carry out the appointments together with the Council of Higher Education, where relevant. The Government further indicates that an annulment action against the decision of the Commission and the institution or organization where the relevant person lastly tool office may be brought before any of the six Ankara Administrative Courts within a period of sixty days as from the date of notification of the decision. The Government points out that there is no statistical information available on the number of trade union members or officials who have applied to either the Inquiry Commission or Ankara Administrative Courts.

The Committee recalls that it had previously noted that according to the ITUC 2019 observations, more than 11,000 KESK representatives and members were suspended from their jobs or dismissed because of their trade union activities and requested the Government to provide its comments thereon. The Committee notes that in its most recent observations, KESK points out that close to 89 per cent of all applications are rejected by the Commission and alleges that the examination of cases involving its members is postponed. The Committee further notes that the Government reiterates that given the higher rate of positive decisions in relation to KESK members (one in three, which is above the average rate), KESK allegations are unfounded. The Government further denies that measures imposed on KESK members were based on anti-union grounds and refers to the legislative provisions providing protection against acts of anti-union discrimination.

Further in this respect, the Committee notes the EI allegations that: during the state of emergency period, 1628 members of the Education and Science Workers Union of Turkey (EĞİTİM SEN) were dismissed from the public service by virtue of Decrees with the force of law; only 12.7 per cent of files pertaining to this union members have been examined, among which 126 applications were rejected and only 79 accepted; and as of May 2020, 1178 EĞİTİM SEN members were still without employment. While noting the Government’s reply that the acceptance rate for reinstatement of EĞİTİM SEN (38,5 per cent) is much higher than the average rate (11,5 per cent), the Committee expresses its concern at the allegation that close to 75 per cent of the dismissed EĞİTİM SEN members are still without employment. The Committee requests the Government to provide its comments thereon.

While taking note of the general statistics provided by the Government, as well as the detailed information in which it recalls the reasons for the state of emergency, the Committee regrets once again the absence of specific information on the number of trade union members and officials involved. The Committee notes with concern the high number of rejection cases (currently 88.5 per cent) and further regrets the absence of information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials.  The Committee reiterates its firm hope that the Inquiry Commission and the administrative courts that review its decisions carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds. The Committee once again requests the Government to provide specific information on the number of applications received from trade union members and officials, the outcome of their examination by the Inquiry Commission and on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials.

Article 1. Anti-union discrimination in the course of employment. The Committee recalls the observations of KESK and the EĞİTİM SEN, alleging that hundreds of their members, mostly in the education sector, were transferred against their will from their workplaces in 2016 (at least 122 transfers, mainly for participation in trade union activities and events) and in 2017 (1,267 transfers, 1,190 of whom from the education sector). The Committee had requested the Government to take the necessary measures to prevent the occurrence of anti-union transfers and demotions in the future, and to ensure that if any anti-union discriminatory measures remained in force, they were revoked immediately. The Committee notes the most recent KESK allegations concerning relocation of its members, termination of their contracts and suspensions for having exercised their trade union rights, as well as administrative investigations launched by employers. It further notes the ITUC allegations of trade union busting at various enterprises and the Government’s detailed reply thereon. The Committee notes that the Government denies any discrimination against legitimate trade union activities of any trade union organization and emphasizes that under the national legislation, no dismissal or suspension can take place because of a legitimate trade union activity or trade union affiliation. The Government points out that the protection of the legislation against anti-union discrimination in both public and private sectors are further strengthened and adjudicated through the judicial system that includes individual application to the Constitutional Court and the European Court of Human Rights against violation of fundamental rights and freedoms by public authorities. Referring to the KESK allegation of relocation, the Government points to the legislation applicable to public service, which allows for relocation if the needs of the service require. The Committee takes note of the observations submitted by workers organizations and the detailed information provided by the Government. The Committee requests the Government to continue engaging with the social partners regarding complaints of anti-union discrimination practices in both the private and public sectors.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. It noted in this respect that pursuant to section 34 of Act No. 6356, collective work agreement may cover one or more than one workplace in the same branch of activity, thereby making cross-sector bargaining in the private sector impossible. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 in a manner so as to ensure that it does not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes the Government’s indication that section 34 of the Act was drafted taking into account the views of the social partners. The Government indicates that this provision regulates the scope and level of collective bargaining with a view to protect and strengthen workplace peace and that the legislation in question does not restrict collective bargaining to the level of workplace but allows also the enterprise and group level bargaining as well as framework agreements. The Committee notes the TISK indication that because of the sectoral characteristics and the difficulties to compile all of them in a single agreement, inter-sectoral or national agreements are not favoured by the social partners. While taking note of these explanations, the Committee recalls that in accordance with Article 4 of the Convention, collective bargaining should remain possible at all levels and that the legislation should not impose restrictions in this regard. The Committee therefore once again requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 so as to ensure that the parties in the private sector wishing to engage in cross sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 initially set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. It further recalls that the 3 per cent threshold was decreased to 1 per cent by Act No. 6552 of 10 September 2014 and that additionally, section 1 of Act No. 6356 stipulating that the 1 per cent membership threshold should be applied as 3 per cent with regard to trade unions that are not members of confederations participating in the Economic and Social Council was repealed by the Constitutional Court. Therefore, the 3 per cent branch threshold was reduced to 1 per cent with regard to all trade unions. Furthermore, the Committee recalls that until 6 September 2018, legal exemptions from the branch threshold requirement were granted to three categories of previously authorized trade unions, so as to prevent the loss of their authorization for collective bargaining purposes. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold and noting that the exemption granted to the previously authorized unions was provisional, the Committee had requested the Government to indicate whether the exemption had been extended beyond 6 September 2018, and the impact of the decision made in this regard on the capacity of previously authorized organizations to bargain collectively. It had further requested the Government to continue reviewing the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners, and should it be confirmed that the perpetuation of the 1 per cent threshold had a negative impact on the coverage of the national collective bargaining machinery, revise the law with a view to its removal.

The Committee recalls that the Government had previously pointed out that Act No. 6356 was drafted in consultation with the social partners and taking into consideration the universal principles regarding trade union rights and freedoms. Following the entry into force of the arrangements outlined in the Act, the Government proceeded to obtain the views and evaluations of the social partners. While some of the social partners asked for the continuation of the branch level threshold, others were of the view that it needs to be reduced or abolished; there was no agreement on this issue. The Government had indicated, however, that should a consensus be achieved on this matter, steps would be taken to make the necessary arrangements.

The Committee notes the Government’s indication that the provisional exemption of the branch of activity threshold requirement was extended until 12 June 2020 by Act No. 30799, published on 12 June 2019. The Government indicates that following publication of the Act, the exempted trade unions concluded collective agreements. The Committee notes the TISK indication that the exempted trade unions have been given a significant opportunity to increase their membership. However, following three consecutive extensions, most of the unions in question have not reached the branch level threshold. The TISK indicates that there was a consensus among the social partners for the discontinuation of the exemption. Noting that the provisional exemption has expired on 12 June 2020, the Committee requests the Government to indicate if further extension has been decided and if not, to provide information on the impact of the non-extension on the capacity of previously authorized organizations to bargain collectively and to indicate the status of the collective agreements concluded by them. It also requests the Government to continue monitoring the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

With regard to the workplace and enterprise representativeness thresholds, in its previous comments, the Committee had noted section 42(3) of Act No. 6356, which provides that if it is determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence. It had further noted section 45(1), which stipulates that an agreement concluded without an authorization document is null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee had requested the Government to take the necessary measures to amend the legislation, in consultation with the social partners, and to provide information in this respect. The Committee notes that the Government refers to its previous indication that: (1) the issue of the amendment of the collective bargaining system was discussed with the social partners but no model could be agreed upon by everyone; and that (2) it would consider the proposal for the amendment to the legislation if put forward by the social partners and if such a proposal represented a consensus. The Committee recognizes that while the search for a consensus with regard to collective bargaining is important, it cannot constitute an obstacle to the Government's obligation to bring the law and practice into conformity with the Convention. The Committee therefore once again requests the Government to amend the legislation so as to ensure that if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. It requests the Government to provide information on all measures taken or envisaged in this regard.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had previously noted that section 28 of Act No. 4688, as amended in 2012, restricts the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government reiterates its previous indication that the demands of the unions and their confederations that do not fall within the category of financial and social rights are received and considered at the other, more appropriate platforms established beside collective bargaining. The Committee is therefore bound to once again recall that public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee wishes to further recall however, that the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, as long as the authorities respect the agreement adopted. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the collective agreements concluded in the public service. In this respect, the proposals for the general section of the collective agreement were prepared by the confederation members of PSUD and the proposals for collective agreements in each service branch were made by the relevant branch trade union representative member of PSUD. The Committee had also noted the observation of the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN), indicating that many of the proposals of authorized unions in the branch were accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprived the branch unions from the capacity to directly exercise their right to make proposals. Noting that although the most representative unions in the branch were represented in PSUD and took part in bargaining within branch-specific technical committees, their role within PSUD was restricted in that they were not entitled to make proposals for collective agreements, in particular where their demands were qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. The Committee notes that the Government refers to its previous indication that collective bargaining is held every two years in order to discuss the issues that concern service branches and general issues together. On that occasion, collective bargaining offers for all service branches are determined separately by the authorized trade unions having the highest number of members in that service branch. Naturally, the proposals of the trade unions are determined exclusively for the service branches due to the differences in the service branches and the public servants within the scope of those branches and discussed in the special committees established separately for the service branches by the Heads of PED and PSUD.  Considering that where joint bodies within which collective agreements must be concluded are set up, and the conditions imposed by law for participation in these bodies are such as to prevent a trade union which would be the most representative of its branch of activity from being associated in the work of the said bodies, the principles of the Convention are impaired, the Committee again requests the Government to ensure that Act No. 4688 and its application enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State.

Collective bargaining in the public sector. Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employees’ Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had noted that seven of the 11 members of the Board including the chair were designated by the President of the Republic and considered that this selection process could create doubts as to the independence and impartiality of the Board. The Committee had therefore requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Committee notes that the Government refers to its 2019 report in which it confirms that in addition to the Head of the Board, its five other members with knowledge in public administration, public finances and public personnel regime, as well as one member among the academics proposed by the competent confederations, are appointed by the President. The Committee requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

[The Government is asked to reply in full to the present comments in 2021.]

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

The Committee notes the observations of the Confederation of Public Employees Trade Unions (KESK) and of the Turkish Confederation of Employer Associations (TİSK) communicated with the Government’s report. The Committee will examine their contents once translation thereof becomes available.

Previous observations of the social partners. The Committee had previously requested the Government to provide its comments on the observations of the Confederation of Turkish Trade Unions (TÜRK-İŞ) alleging the partiality in the practice of the Supreme Arbitration Board and inadequate protection of union members against anti-union discrimination pending the authorization of an organization as collective bargaining agent. The Committee notes the information provided by the Government regarding the composition of the Board and the indication that TÜRK-İŞ, the organization which represents the majority of workers covered by the Act on Trade Unions and Collective Bargaining (Act No. 6356), is represented by two members. The Government informs that in its decision making, the Board takes into consideration the country’s economic situation, subsistence indices, actual wages, wages paid in comparable workplaces, other working conditions and income components in accordance with the provisions of article 54 of the Constitution, relevant provisions of Act No. 6356 and of the relevant Regulations. The Government also states that the Board establishes balanced collective agreements taking into account the position of workers and employers, as well as its own precedents. As to the alleged inadequate protection of union members against anti-union discrimination, the Government refers to the legislation in force and in particular to sections 23–25 of Act No. 6356, establishing such protection, and sections 118 and 135 of the Penal Code, providing for penalties for obstructing trade union activities by using force, threats or other unlawful acts, and for recording personal data unlawfully, including information on trade union affiliation. The Committee notes the information on the legislative protection against acts of anti-union discrimination and refers to its comments below as concerns the effectiveness of this protection in practice.

Scope of the Convention. In its previous comment, the Committee had noted that while the prison staff, like all other public servants were covered by the collective agreements concluded in the public service, this category of workers did not enjoy the right to organize (section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688)). The Committee had requested the Government to take the necessary measures, including legislative review, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. The Committee notes the Government’s indication that when adopting Act No. 4688, the Parliament did not consider it appropriate to grant the right to establish trade unions to those working in the penitentiaries so as to ensure that in the exercise of their duties such workers remain impartial and do not discriminate on the grounds of their philosophical belief, religion, language, race, group, party or trade union affiliation. The Government reiterates that the fact that a public servant does not have the right to form a trade union does not mean that he or she cannot benefit from a collective agreement and that all public servants in Turkey benefit from the provisions of the relevant collective agreement regardless of whether or not they are union members. Recalling that all public servants not engaged in the administration of the State must enjoy the rights afforded by the Convention, the Committee once again requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them.

Articles 1 and 3 of the Convention. Adequate protection against anti union discrimination. Following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference (hereafter, the Conference Committee), the Committee has been requesting the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors. Noting the Government’s indication that preparations for the establishment of the data collecting system were underway within the framework of the “Improving Social Dialogue in Working Life” project, the Committee had requested the Government to provide information on the progress made in the establishment of such system. The Committee notes with regret the Government’s indication that while a report entitled “Methods for Establishing Data Collection System on Trade Union Discrimination in Private and Public Sectors and a Model Proposal for Turkey” was prepared and a workshop was organized on 3 October 2018 at the ILO Ankara Office with the participation of the social partners and representatives of the institutions expected to contribute to this issue, no concrete model for collecting anti-union discrimination data was found. The Committee is therefore bound to reiterate the June 2013 request of the Conference Committee and expects the Government to provide in its next report information on the measures taken or envisaged in this respect.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. In its previous comment, the Committee took note of the information on the high number of suspensions and dismissals of trade union members and officials under the state of emergency. It noted in this respect the allegation that the state of emergency was used by the political power to target and punish certain trade unions and to exert pressure on oppositional trade unions through dismissals of their members. Firmly hoping that the Inquiry Commission (established to review such dismissals) has the necessary means to examine the relevant facts, the Committee had requested the Government to provide information on the functioning of the Commission and to indicate the number of applications received from trade union members and officials, and the outcome of their examination. The Committee had also requested the Government to provide information on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials. The Committee notes the Government’s indication that as of 29 August 2019, there were 126,200 applications submitted to the Inquiry Commission. Since 22 December 2017, the Commission delivered its decisions in respect of 84,300 applications, out of which, 6,700 were accepted and 77,600 were rejected; 41,900 applications are still pending. The Government indicates that the Commission delivers individualized and reasoned decisions following a speedy and extensive examination. The Government further indicates that although KESK alleged that it was targeted or discriminated against, out of the 125,678 dismissals, KESK itself claims around 4,000 dismissals of its members, and out of 588 decisions of the Inquiry Commission regarding KESK members, 199 applications were accepted for reinstatement. The Government points out that the rate of positive decisions in relation to KESK members is one in three, which is above the average rate. With reference to its observation on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee notes that according to the International Trade Union Confederation, more than 11,000 KESK representatives and members were suspended from their jobs or dismissed because of their trade union activities. The Committee requests the Government to provide its comments thereon.

While noting the general statistics provided by the Government, the Committee regrets the absence of specific information, with the exception regarding KESK members, on the number of trade union members and officials involved. Regarding KESK, the Committee expresses its concern that according to the Government, only about 15 per cent of cases involving its members have been examined and observes that among those only one third were accepted for reinstatement. It recalls from the previous examination that in case of a negative decision, the applicants can have recourse to the competent administrative courts in Ankara. The Committee regrets the absence of information regarding the number and outcome of appeals against the negative decisions of the Inquiry Commission concerning trade union members and officials. The Committee reiterates its firm hope that the Inquiry Commission and the administrative courts that review its decisions will carefully examine the grounds for the dismissal of trade union members and officials in the public sector and order reinstatement of the trade unionists dismissed for anti-union grounds. The Committee once again requests the Government to provide specific information on the number of applications received from trade union members and officials, the outcome of their examination by the Inquiry Commission and on the number and outcome of appeals against the negative decisions of the Commission concerning trade union members and officials.

Article 1. Anti-union discrimination in the course of employment. The Committee recalls the observations of KESK and the Education and Science Workers Union of Turkey (EĞİTİM SEN), alleging that hundreds of their members and affiliates, mostly in the education sector, were transferred against their will from their workplaces in 2016 (at least 122 transfers, mainly for participation in trade union activities and events) and in 2017 (1,267 transfers, 1,190 of whom from the education sector). It further recalls the observations of KESK alleging that the so-called social equilibrium compensation agreements concluded pursuant to section 32 of Act No. 4688 contain provisions that discriminate against members of minority unions as they impose higher fees on them and make the distribution of benefits dependent on the clear disciplinary record of the employee. KESK referred in this regard to agreements concluded in Gaziantep and Kocaeli, where Bem-Bir-Sen, an affiliate organization of the allegedly pro-government MEMUR SEN confederation represented the majority, and TÜM BEL SEN, a KESK affiliate, was the minority union. KESK indicated that a number of affected employees had challenged the discriminatory provisions in court. The Committee had requested the Government to take the necessary measures to prevent the occurrence of anti-union transfers and demotions in the future, and to ensure that if any anti-union discriminatory measures remained in force, they were revoked immediately. It had also requested the Government to reply to the KESK allegation with regard to the inclusion of discriminatory clauses in certain social equilibrium compensation agreements. The Committee notes the Government’s indication that as a result of court rulings on the issue, social equilibrium membership contributions are now collected equally from all employees without any regard to their trade union affiliation and social equilibrium compensation payments are made equally in the same manner. Furthermore, the employees with a disciplinary record in the above-mentioned municipalities benefit equally from the social equilibrium compensation payments. With regard to the alleged anti-union discrimination, the Government emphasises that section 18 of Act No. 4688 provides for sufficient protection and guarantees for public servants who are trade union executives or members. Pursuant to this section, public employers cannot take discriminatory measures against public servants on the grounds of their trade union membership. Public servants cannot be dismissed or treated differently due to their participation in the legitimate activities of trade unions or confederations. Moreover, public employers cannot change the workplace of trade union executives (i.e., shop stewards, union’s workplace representatives, union’s provincial and district representatives, officials of unions and their branches) without providing clear and precise reasons therefor. While taking note of the information provided on the legislative protection against anti-union acts, the Committee once again requests the Government to take the necessary measures to prevent measures of transfer or demotions of a discriminatory nature and on anti-union grounds and to ensure that measures of this nature that are still in force are immediately repealed.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had noted that while cross-sector bargaining resulting in “public collective labour agreement framework protocols” was possible in the public sector, this was not the case in the private sector. It noted in this respect that pursuant to section 34 of Act No. 6356, collective work agreement may cover one or more than one workplace in the same branch of activity, thereby making cross-sector bargaining in the private sector impossible. The Committee had requested the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 in a manner so as to ensure that it does not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. The Committee notes the Government’s indication that: Act No. 6356 entered into force in 2012 following negotiations with the social partners; section 34 of the Act was drafted taking into account their views; there have been no problems regarding its implementation; and no request for its amendment have been submitted by the social partners. Recalling that in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels, the Committee once again requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 so as to ensure that the parties in the private sector wishing to engage in cross sector regional or national agreements can do so without impairment. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 initially set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. It further recalls that the 3 per cent threshold was decreased to 1 per cent by Act No. 6552 of 10 September 2014 and that additionally, section 1 of Act No. 6356 stipulating that the 1 per cent membership threshold should be applied as 3 per cent with regard to trade unions that are not members of confederations participating in the Economic and Social Council was repealed by the Constitutional Court. Therefore, the 3 per cent branch threshold was reduced to 1 per cent with regard to all trade unions. Furthermore, the Committee recalls that until 6 September 2018, legal exemptions from the branch threshold requirement were granted to three categories of previously authorized trade unions, so as to prevent the loss of their authorization for collective bargaining purposes. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold and noting that the exemption granted to the previously authorized unions was provisional, the Committee had requested the Government to indicate whether the exemption had been extended beyond 6 September 2018, and the impact of the decision made in this regard on the capacity of previously authorized organizations to bargain collectively. It had further requested the Government to continue reviewing the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners, and should it be confirmed that the perpetuation of the 1 per cent threshold had a negative impact on the coverage of the national collective bargaining machinery, revise the law with a view to its removal.

The Committee recalls that the Committee on Freedom of Association has referred to it the legislative aspects of Case No. 3021 (see 391st Report, October–November 2019, paragraph 70) concerning the impact of application of Act No. 6356 on the trade union movement and the national collective bargaining machinery as a whole. The Committee notes the Government’s indication that the exemption granted to trade unions under second paragraph of the provisional section 6 of Act No. 6356 ended on 6 September 2018. Pursuant to the requirement of Act No. 6356, the trade unions whose exemption is ended shall receive a certificate of authorization to conclude collective labour agreement if the number of their members exceeds 1 per cent of the total number of workers employed in the branch of activity to which the workplace or the enterprise belongs and represents more than 50 per cent of the employees in the workplace or more than 40 per cent of the employees in the enterprise. The Government points out that Act No. 6356 was drafted in consultation with the social partners and taking into consideration the universal principles regarding trade union rights and freedoms. Following the entry into force of the arrangements outlined in the Act, the Government proceeded to obtain the views and evaluations of the social partners. While some of the social partners asked for the continuation of the branch level threshold, others were of the view that it needs to be reduced or abolished. Currently, there is no agreement on this issue. The Government indicates, however, that should a consensus be achieved on this matter, steps will be taken to make the necessary arrangements. Noting that that the provisional exemption has not been extended beyond September 2018, the Committee requests the Government to provide information on the impact of the non-extension on the capacity of previously authorized organizations to bargain collectively and to indicate the status of the collective agreements concluded by them. It also requests the Government to continue monitoring the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners and to provide information in this regard.

With regard to the workplace and enterprise representativeness thresholds, in its previous comments, the Committee had noted section 42(3) of Act No. 6356, which provides that if it is determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence. It had further noted section 45(1), which stipulates that an agreement concluded without an authorization document is null and void. While noting the “one agreement for one workplace or business” principle adopted by the Turkish legislation, the Committee had recalled that under a system of designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlighted that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle. The Committee had requested the Government to take the necessary measures to amend the legislation, in consultation with the social partners, and to provide information in this respect. The Committee notes the Government’s indication that the issue of the amendment of the collective bargaining system was discussed with the social partners within the framework of the project of “Improving Social Dialogue in Working Life” but no model could be agreed upon by everyone. The Government declares its readiness to consider the proposal for the amendment to the legislation if put forward by the social partners and if such a proposal represents a consensus. Recalling that it is the responsibility of the Government to ensure the application of the Convention it had ratified, the Committee once again requests the Government to amend the legislation so as to ensure that if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. It requests the Government to provide information on all measures taken or envisaged in this regard.

In its previous comment, the Committee had also requested the Government to provide information on any use of sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) of Act No. 6356 that provide for a variety of situations in which the certificate of competence to bargain may be withdrawn by the authorities for a variety of reasons (the failure to call on the other party to start negotiations within 15 days of receiving the certificate of competence; the failure to attend the first collective bargaining meeting or failure to begin collective bargaining within 30 days from the date of the call; failure to notify a dispute to the relevant authority within six working days; failure to apply to the High Arbitration Board; failure to take a strike decision or to begin a strike in accordance with the legislative requirements; and failure to reach an agreement at the end of the term of strike postponement) and to continue to review their application with the social partners concerned with a view to their eventual amendment, favouring collective bargaining where the parties so desire. The Committee notes the Government’s indication that while no issues have been raised regarding the implementation in practice of the above-mentioned provisions it would consider their amendment if such a proposal is put forward by the social partners.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. The Committee had previously noted that section 28 of Act No. 4688, as amended in 2012, restricts the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government reiterates its previous indication that the demands of the unions and their confederations that do not fall within the category of financial and social rights are received and considered at the other, more appropriate platforms established beside collective bargaining. The Committee is therefore bound to once again recall that public servants who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee wishes to further recall however, that the Convention is compatible with systems requiring competent authorities’ approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, as long as the authorities respect the agreement adopted. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the Collective Agreements concluded in the public service. In this respect, the proposals for the general section of the Collective Agreement were prepared by the confederation members of PSUD and the proposals for collective agreements in each service branch were made by the relevant branch trade union representative member of PSUD. The Committee had also noted the observation of the Turkish Confederation of Public Workers Associations (Türkiye KAMU-SEN), indicating that many of the proposals of authorized unions in the branch were accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprived the branch unions from the capacity to directly exercise their right to make proposals. Noting that although the most representative unions in the branch were represented in PSUD and took part in bargaining within branch-specific technical committees, their role within PSUD was restricted in that they were not entitled to make proposals for collective agreements, in particular where their demands were qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. The Committee notes the Government’s indication that collective bargaining is held every two years in order to discuss the issues that concern service branches and general issues together. On that occasion, collective bargaining offers for all service branches are determined separately by the authorized trade unions having the highest number of members in that service branch. Naturally, the proposals of the trade unions are determined exclusively for the service branches due to the differences in the service branches and the public servants within the scope of those branches and discussed in the special committees established separately for the service branches by the Heads of PED and PSUD. Considering that where joint bodies within which collective agreements must be concluded are set up, and the conditions imposed by law for participation in these bodies are such as to prevent a trade union which would be the most representative of its branch of activity from being associated in the work of the said bodies, the principles of the Convention are impaired, the Committee again requests the Government to ensure that Act No. 4688 and its application enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State.

Collective bargaining in the public sector. Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of PED (the Minister of Labour) on behalf of public administration and the chair of PSUD on behalf of public employees, can apply to the Public Employees’ Arbitration Board. The Board decisions were final and had the same effect and force as the collective agreement. The Committee had noted that seven of the 11 members of the Board including the chair were designated by the President of the Republic and considered that this selection process could create doubts as to the independence and impartiality of the Board. The Committee had therefore requested the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties. The Committee notes that the Government confirms that in addition to the Head of the Board, its five other members with knowledge in public administration, public finances and public personnel regime, as well as one member among the academics proposed by the competent confederations, are appointed by the President. The Committee requests the Government to consider reviewing, in consultation with the social partners, the method of appointment of the Board members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

[The Government is asked to reply in full to the present comments in 2020.]

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) and those of the Confederation of Progressive Trade Unions of Turkey (DİSK) and the Confederation of Public Employees Trade Unions (KESK) attached to it, received on 1 September 2018 and the Government’s reply thereto. The Committee also notes the observations of the Turkish Confederation of Employer Associations (TİSK) transmitted by the International Organization 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. Finally, the Committee notes the observations of the TİSK that refer to questions examined by the Committee and those of the Confederation of Turkish Trade Unions (TÜRK- İŞ) communicated with the Government’s report. The observations of TÜRK- İŞ refer to allegations of partiality in the practice of the Supreme Arbitration Council and inadequate protection of union members against anti-union discrimination pending the authorization of an organization as collective bargaining agent. The Committee requests the Government to provide its comments in this respect.

Scope of the Convention. In its previous comment, the Committee had noted that the prison staff like all other public servants are covered by the collective agreements concluded in the public service, even though under section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688) they do not enjoy the right to organize. The Committee had requested the Government to take the necessary measures, including legislative review, with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them. It notes with regret the Government’s indication that there has been no new development in this regard and has therefore to reiterate its previous request. Recalling that all public servants not engaged in the administration of the State must enjoy the rights afforded by the Convention, the Committee again requests the Government to take the necessary measures including legislative review of section 15 of Act No. 4688 with a view to guaranteeing that the prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them.

Articles 1 and 3 of the Convention. Adequate protection against anti-union discrimination. Following up on the recommendations of the June 2013 Committee on the Application of Standards of the International Labour Conference, the Committee had requested the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors. The Committee notes the Government’s indication that preparations for the establishment of the data collecting system are underway within the framework of the “Improving Social Dialogue in Working Life” project, currently in progress with the technical support of the Office. The Committee further notes the texts of the Council of State ruling and the Regulation on the Assignment of the Administrators of Educational Institutions submitted by the Government upon its request. The Committee requests the Government to continue providing information on the progress made in the establishment of the system for collecting data on anti-union discrimination in private and public sectors.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. In its previous comment, the Committee had urged the Government to ensure that the ad hoc Commission established to review the dismissals in the public sector under the state of emergency (hereafter, the Inquiry Commission) is accessible to all the dismissed trade union members 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 requested the Government to ensure that the dismissed unionists do not bear alone the burden of proving that the dismissals were of an anti-union nature, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was based on other grounds. In case it was established that the dismissal of trade unionists has been based on anti-union motives, the Committee expressed the firm expectation that they be reinstated in their posts with payment of unpaid wages and maintenance of acquired rights. The Committee notes the Government’s indication that all the dismissed public servants, with the exception of the members of the judiciary who have to follow a different track, have the right to apply to the Inquiry Commission for a review of their dismissals. With regard to the capacity and resources of the Commission, the Committee notes the Government’s indication that the Inquiry Commission’s period of office can be extended until its review of all applications submitted is completed. The Government further indicates that in addition to its 7 members, the Commission employs a total of 250 personnel, 80 of whom are judges, experts and inspectors employed as rapporteurs. With regard to the process of application and review, the Government indicates that a data processing infrastructure for the application process has been established where all information concerning natural and legal applicants is recorded and electronic applications are received 24 hours a day. A website has also been created where applicants can follow-up on their application. In case of acceptance of application, the decision is notified to the public institution where the applicant was last employed for their reinstatement. The applicant’s social and financial dues shall be paid for the period of dismissal until the date they are reinstated. In case of a negative decision, the applicant can have recourse to the competent administrative courts in Ankara. With regard to the burden of proof, the Government indicates that the Commission demands from the relevant public institutions to submit the documents and information showing the applicant’s membership, affiliation or connection to a terrorist organization. If the relevant public institutions provide no such document and information and no investigation or prosecution exists about the applicant, then the Commission accepts the application for reinstatement. The Committee also notes the following statistics provided by the Government: as of 9 November 2018, the Commission had received 125,000 applications. The Commission started its decision-making process on 22 December 2017 and as of 9 November 2018 it had delivered 42,000 decisions, including 3,000 acceptances and 39,000 rejections. The Government finally indicates that the Commission makes individualized and reasoned decisions on approximately 1,200 applications per week through a rapid and at the same time thorough examination. The Committee notes that pursuant to the statistics communicated by the Government, only 7 per cent of the reinstatement applications received have been accepted. However, the Committee has no information as to the rate of acceptance/rejection of the applications submitted by dismissed union members or officials. In this regard the Committee notes the observation of EGİTİM SEN alleging that while the law decrees of the state of emergency (Kanun Hükmünde Kararname, hereafter KHK) dismissed 1,628 EGİTİM SEN members, as of end of September 2018 only 12 applications resulted in the countenance of the dismissed applicants.

In its previous comment, the Committee had also requested the Government to ensure that in the context of the prolongation of the state of emergency no workers will be dismissed by reason of union membership or because of participation in union activities. The Committee notes in this regard the Government’s indication that the state of emergency ended on 18 July 2018, two years after the attempted coup. The Committee also notes the following observations of the ITUC, DİSK, KESK and EGİTİM SEN, updating and supplementing the allegations of anti-union dismissals and suspensions under the state of emergency: (i) as of May 2018, a total of 4,312 KESK members had been dismissed from office, including 138 dismissed pursuant to KHK No. 695 dated 24 December 2017, 4 dismissed pursuant to the KHK No. 697 dated 12 January 2018, and 102 dismissed pursuant to the decision of the Higher Disciplinary Board. The number of reinstated KESK members in the same period amounted to 94; (ii) a group of 18 members of the Executive Committee of KESK and at least 330 of its representatives serving at local branches, disciplinary boards and audits were among the dismissed; (iii) massive suspension occurred in some cities through which 11,329 KESK members were suspended from their offices since 20 July 2016 and, in late 2017, there remained about 240 suspended KESK members; (iv) nearly 400 “Academics for Peace” the majority of whom were members of EGİTİM SEN and SES (both KESK affiliates) and who had signed a declaration calling for an end to fighting in East and Southeast Anatolia were expelled from university under the state of emergency; and (v) only 50 of the 1,959 DİSK Genel-İş members dismissed through KHKs returned to their jobs and the contracts of 28 members remained suspended. With regard to the grounds of the dismissals, the Committee notes the Government’s emphasis that the dismissals took place on the grounds of membership, affiliation or connection to the terrorist organizations and in no way were they related to or based on legitimate trade union membership, status or activity of the persons concerned. The Committee notes however the observations of KESK and EGİTİM SEN, alleging that the Government uses the terms “terrorist activity” or “terrorism propaganda” to label all political opposition groups and their activities. The Committee further notes the KESK’s allegation that as a result of application of very broad and vague criteria, allowing for the dismissal of public servants who were “considered” to have connections with illegal groups and entities, as of May 2018, 4,218 KESK members who had been subjected to threats and pressure from the Gulenist Structure were dismissed from office. The Committee notes in this regard the Government’s indication that no one has immunity from prosecution for illegal activities and all trade unions and their members must respect the law of the land.

The Committee further notes the observation of KESK and EGİTİM SEN alleging that the political power targeted and punished certain trade unions by means of state of emergency and this situation continues despite the end of state of emergency as the public employer supports the pro-government unions while exerting pressure on oppositional trade unions. The Committee recalls in this regard that in its previous comment, it had noted the allegation that EGİTİM SEN and the DİSK members were targeted for suspension and dismissal because of their membership in unions affiliated to their confederations (KESK and DİSK) and the EGİTİM SEN allegation that administrators of many public institutions reported false charges against their members and officials which would lead to their dismissal and suspension, so as to weaken their union to the advantage of the so-called “partisan” unions. In this regard the Committee had urged the Government to take the necessary measures to prevent and remedy any eventual abuse of the state of emergency to interfere in trade union activities and functioning and to provide information on the measures taken. The Committee notes with regret that the Government has not responded to this request and the relevant observations of the trade unions.

The Committee notes that while the Government indicates that the dismissals were merely grounded on illegal activity of the targeted employees, the observations of the workers organizations indicate that the criteria of “connection to terrorist organizations” was too broadly applied and used to target members of unions who shared political affinities with the opposition, with a view to strengthening the position of the pro-government unions in the public sector. While the Committee is not in a position to verify these allegations, it considers that the protection against anti-union discrimination afforded to workers by the Convention remains valid in all political circumstances. Union members must be protected against dismissals merely based on the political affinities of their organizations, in particular during a state of emergency, as long as they act in conformity with existing laws. Furthermore, it considers that in the public sector, dismissals that would aim at weakening unions close to the political opposition to the benefit of pro-government unions would amount to acts of interference aimed at promoting workers’ organizations under the domination of the employer and would violate both Articles 1 and 2 of the Convention. The Committee firmly hopes that the Inquiry Commission that has the necessary means to examine the relevant facts, and the Ankara administrative courts that are competent to examine appeals against the decisions of the Commission will pay due consideration to these points. Taking due note of the information submitted to it on the dismissals of trade union members and officials under the state of emergency and the functioning of the Inquiry Commission, the Committee expresses its deep concern at the situation as it has developed given the high number of suspensions and dismissals that still affect trade union officials and members. The Committee firmly hopes that the Commission and the Ankara Administrative Courts that review its decisions will carefully examine the grounds for the dismissal of trade union members and officials in the public sector and that they will reinstate any trade unionist applicant dismissed for anti-union or interference motives. It requests the Government to continue providing information on the functioning of the Commission, and in particular, to indicate the number of applications received from trade union members and officials, 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 trade union members and officials.

Article 1. Anti-union discrimination in the course of employment. The Committee notes the observations of KESK and EGİTİM SEN, alleging that hundreds of their members and affiliates, mostly in the education sector, were transferred against their will from their workplaces in 2016 (at least 122 transfers, mainly for participation in trade union activities and events) and in 2017 (1,267 transfers, 1,190 of whom from the education sector). The unions’ observations refer in detail to 116 cases where union members and officials were subjected to disciplinary investigation and forced transfers, sometimes combined with demotions, as a result of participation in various union activities, including press conferences, protests or strikes organized in reaction to the Ankara bombing of 10 October 2015 or in relation to comments published in the social media. The Committee notes the KESK’s indication that after the unions took some initiatives and had dialogue with authorities to solve the issue some of the transferred union members were sent to workplaces close to their original workplaces and very few of them who had dependents with special needs were sent back to their original workplaces. However, according to KESK, 14 public officers’ relocation was not revoked despite their having dependents with special needs. The Committee further notes the observations of KESK alleging that the so-called social equilibrium compensation agreements concluded pursuant to section 32 of Act No. 4688 contain provisions that discriminate against members of minority unions as they impose higher fees on them and make the distribution of benefits dependent on the clear disciplinary record of the employee. The KESK refers in this regard to agreements concluded in Gaziantep and Kocaeli, where Bem-Bir-Sen, an affiliate of the allegedly pro-government MEMUR SEN confederation represents the majority, and TÜM BEL SEN, a KESK affiliate, is the minority union. The KESK further indicates that a number of affected employees have challenged the discriminatory provisions in court and the cases are still pending. 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 that domestic administrative or judicial ways of remedy are available against all acts of the administration. While the Committee notes that according to the observations the unions have had recourse to the authorities to resolve the issue with relative success it is bound to recall that pursuant to Article 1(2)(b) of the Convention, workers should be protected during employment from measures such as transfers and demotions that prejudice them by reason of union membership or participation in union activities and that participation in protests and strikes and press conferences constitute legitimate trade union activities. The Committee therefore requests the Government to take the necessary measures to prevent the occurrence of anti-union transfers and demotions in the future, and to ensure that if any anti-union discriminatory measures still remain in force, they are revoked immediately. It also requests the Government to reply to the KESK allegation with regard to the inclusion of discriminatory clauses in certain social equilibrium compensation agreements.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comments, the Committee had requested the Government to review the impact of section 34 of the Act on Trade Unions and Collective Bargaining Agreements (Act No. 6356) which provided that a collective work agreement may cover one or more than one workplace in the same branch of activity and to consider its amendment so as to ensure that it does not restrict the possibility for the parties to engage in cross-sector regional or national agreements. The Committee notes that, according to the indications of the Government and the TİSK, the existing multi-level system of collective bargaining allowing for workplace level, enterprise level and group level collective agreements as well as framework agreements at the branch level is a product of a long and well-established industrial relations system in Turkey and that it does not seem that social partners feel a need for change in this regard. Furthermore, the Committee notes that, in practice, cross-sector bargaining is conducted in public enterprises, resulting in the conclusion of “public collective labour agreement framework protocols”. However, the Committee notes that pursuant to section 34 of Act No. 6356, cross-sector bargaining is not conducted and does not seem possible in the private sector. Taking due note of the information provided by the Government and the TİSK, and in view of the principle that it should be left to the parties to determine the level of bargaining, the Committee requests the Government to consider, in consultation with the social partners, the amendment of section 34 of Act No. 6356 in a manner so as to ensure that it does not restrict the possibility of the parties in the private sector to engage in cross-sector regional or national agreements should they so desire. It requests the Government to provide information on the steps taken in this regard.

Requirements for becoming a bargaining agent. The Committee recalls that in its previous comments, it had noted that section 41(1) of Act No. 6356 initially set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. It further recalls that the 3 per cent threshold was decreased to 1 per cent by Act No. 6552 of 10 September 2014 and that additionally, section 1 of Act No. 6356 stipulating that the 1 per cent membership threshold should be applied as 3 per cent with regard to trade unions that are not members of confederations participating in the Economic and Social Council was repealed by the Constitutional Court. Therefore the 3 per cent branch threshold was reduced to 1 per cent with regard to all trade unions. Furthermore, the Committee recalls that until 6 September 2018, legal exemptions from the branch threshold requirement were granted to three categories of previously authorized trade unions, so as to prevent the loss of their authorization for collective bargaining purposes. The Committee finally recalls that the Committee on Freedom of Association (CFA) has referred to it the legislative aspects of Case No. 3021 (see 382nd Report, June 2017, paragraph 144) concerning the impact of application of Act No. 6356 on the trade union movement and the national collective bargaining machinery as a whole. The Committee recalls that the CFA had considered that the branch of activity threshold, which is required by Act No. 6356, in addition to the workplace or enterprise threshold, to be able to conclude a collective labour agreement, is not conducive to harmonious industrial relations and does not promote collective bargaining in line with Article 4 of the Convention, as it may ultimately result in the decrease in the number of workers covered by collective agreements in the country (see 373rd Report, October 2014, paragraph 529). The Committee notes that the Government does not indicate whether the exemption granted to the previously authorized unions have been extended beyond 6 September 2018. However, the Government indicates that if a consensus is reached between social partners on the branch threshold, the Ministry of Family, Labour and Social Services will give it due consideration in its work. According to the statistics provided in the Government report the rate of unionization in the private sector was 12.38 per cent in January 2018, and the rate of workers covered by collective agreements in 2017 was 14.4 per cent. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold and noting that the exemption granted to the previously authorized unions was provisional, the Committee requests the Government to indicate whether the exemption has been extended beyond 6 September 2018, and the impact of the decision made in this regard on the capacity of previously authorized organizations to bargain collectively. It further requests the Government to continue reviewing the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective bargaining machinery as a whole in full consultation with the social partners, and should it be confirmed that the perpetuation of the 1 per cent threshold has a negative impact on the coverage of the national collective bargaining machinery, revise the law with a view to its removal.

With regard to the workplace and enterprise representativeness thresholds, the Committee had noted in its previous comments, section 42(3) of Act No. 6356 which provides that if it is determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence; and section 45(1) which stipulates that an agreement concluded without an authorization document is null and void. The Committee had recalled in this respect that if no union meets the required threshold, collective bargaining rights should be granted to all unions, at least on behalf of their own members and had requested the Government to ensure that the legislation is amended to bring it into conformity with this principle. In this regard, the Committee notes the observation of the TİSK, emphasizing that the Turkish collective bargaining system contains the principle that there is only one agreement for one workplace or business for one period, and this principle was adopted taking into account the damage that clashes and disputes in the past did to working peace. The TİSK further expresses its clear disagreement with suggestions of authorizing more than one union to bargain collectively for the same period. Taking due note of this observation, the Committee also recalls also the previous observations of TURK İS indicating that the 50 per cent workplace threshold is difficult to reach in a context where flexible labour systems are proliferating and supported by the legislation. With regard to the enterprise threshold, the Committee recalls TURK İS’s indication that in cases where none of the trade unions organizing the workers in the same enterprise represents 40 per cent of the workers, or otherwise in the exceptional cases when two unions reach that same threshold, no union will be considered competent as a collective bargaining agent. While noting the TİSK’s concern with regard to work peace, the Committee notes that in view of the previous observations of TURK-İS, the current workplace and enterprise representativeness thresholds for collective bargaining do not seem conducive to the development of collective bargaining in Turkey as they deny a representative union that fails to secure absolute majority at workplace or a 40 per cent majority at the enterprise the possibility of bargaining and so deprive the members of such a union from the right to determine the conditions of their employment through collective bargaining. The Committee once again recalls that under a system of the designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all the unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. The Committee highlights that by allowing for the joint bargaining of minority unions, the law could adopt an approach more favourable to the development of collective bargaining without compromising the “one agreement for one workplace or business” principle adopted by the Turkish legislation. Likewise, the Committee considers that when more than one union reaches the enterprise threshold, they should be able to jointly engage in voluntary collective bargaining, at least on behalf of their own members. In light of the above, the Committee requests the Government to take the necessary measures to amend the legislation, in consultation with the social partners, and to provide information in this respect.

In its previous comment, the Committee had requested the Government to provide information on any use of sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) that provide for a variety of situations in which the certificate of competence to bargain may be withdrawn by the authorities for a variety of reasons (the failure to call on the other party to start negotiations within 15 days of receiving the certificate of competence; the failure to attend the first collective bargaining meeting or failure to begin collective bargaining within 30 days from the date of the call; failure to notify a dispute to the relevant authority within six working days; failure to apply to the High Arbitration Board; failure to take a strike decision or to begin a strike in accordance with the legislative requirements; and failure to reach an agreement at the end of the term of strike postponement) and to continue to review their application with the social partners concerned with a view to their eventual amendment, favouring collective bargaining where the parties so desire. The Committee had also noted the TİSK observation according to which in practice these provisions have no negative effect on the collective bargaining process as unions are very careful about the procedural rules and the Government’s indication that these provisions are intended to guarantee, speed up and shorten the bargaining procedure. The Committee notes with regret that the Government has not provided any information in this regard. The Committee again requests the Government to review the application of these provisions with the social partners concerned on a continuous basis and to provide information on any use of them.

Articles 4 and 6. Collective bargaining rights of public servants not engaged in the administration of the State. Material scope of collective bargaining. In its previous comment, the Committee had noted that section 28 of Act No. 4688 as amended in 2012 – restricts the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee had also noted the Government’s indication in this regard that the 2012 amendments of section 28 were meant to give collective bargaining a significantly wider role in determining the economic and social rights of public servants. The Government adds, however, that when the bargaining parties agree to a need for legislative change, collective agreement requires work for such change to be carried out, since the status of public servants is regulated by law. The Committee notes that in its latest report the Government indicates that the demands of the unions and their confederations that do not fall within the category of financial and social rights are received and considered at the other, more appropriate platforms established beside collective bargaining. Noting the Government’s indication, the Committee once again recalls that public servants that are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee wishes to further recall however, that the Convention is compatible with systems requiring parliamentary approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, as long as the authorities respect the agreement adopted. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee again requests the Government to take the necessary measures to ensure the removal of restrictions on matters subject to collective bargaining so that the material scope of collective bargaining rights of public servants not engaged in the administration of the State is in full conformity with the Convention.

Collective bargaining in the public sector. Participation of most representative branch unions. In its previous comment, the Committee had noted that pursuant to section 29 of Act No. 4688, the Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are parties to the Collective Agreements concluded in the public service. The proposals for the general section of the Collective Agreement are prepared by the confederation members of the PSUD and the proposals for collective agreements in each service branch are made by the relevant branch trade union representative member of the PSUD. The Committee had also noted the observation of Türkiye KAMU-SEN in this regard, indicating that many of the proposals of authorized unions in the branch are accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29 and that this mechanism deprives the branch unions from the capacity to directly exercise their right to make proposals. Noting that although the most representative unions in the branch are represented in the PSUD and take part in bargaining within branch-specific technical committees, their role within the PSUD is restricted in that they are not entitled to make proposals for collective agreements, in particular where their demands are qualified as general or related to more than one service branch, the Committee had requested the Government to ensure that these unions can make general proposals. The Committee notes the Government’s indication in this regard that it is only natural that the proposals concerning all public servants are tabled by members representing the confederations in the PSUD that are the higher level organizations of the unions and that during the four collective bargaining rounds that took place since the inception of the system in 2012, public servants’ unions participated in the negotiations as members of the PSUD and could in this way influence the general proposals. The Committee notes that the Government’s indications seem to confirm that within PSUD only confederations can make proposals relating to issues relating to more than one branch. Considering that where joint bodies within which collective agreements must be concluded are set up, and the conditions imposed by law for participation in these bodies are such as to prevent a trade union which would be the most representative of its branch of activity from being associated in the work of the said bodies, the principles of the Convention are impaired, the Committee again requests the Government to ensure that Act No. 4688 and its application enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State.

Collective bargaining in the public sector. Public Employee Arbitration Board. In its previous comment, the Committee had noted that pursuant to sections 29, 33 and 34 of Act No. 4688, in case of failure of negotiations in the public sector, the chair of the PED (the Minister of Labour) on behalf of public administration and the chair of the PSUD (currently head of MEMUR SEN confederation) on behalf of public employees, can apply to the Public Employees’ Arbitration Board. The Board decisions will be final and will have the same effect and force as the collective agreement. The Committee had requested the Government to reply to the KESK’s observation that the majority of the Public Employee Arbitration Board are designated by the employers and the council of Ministers which creates doubts about the independence of this body. It notes the Government’s indication in this regard that pursuant to the KHK No. 703 dated 2 July 2018, the President of the Republic has authority to designate one senior judge to chair the Board as well as four members from the Ministries and public institutions and one member from the academics working in a relevant field. On the other hand, four members of the board are designated directly by the three most representative confederations of public servants’ unions, and one member is designated by the President of the Republic from among the academics proposed by the said confederations. The Government concludes that as the Board’s 11 members consist of one judge as chair, who has judicial independence and cannot receive orders from the executive power, and ten members, five of which are elected by the public servants’ organizations, it is a well-balanced institution. In view of the information provided by the Government, the Committee notes that pursuant to the recently adopted KHK No. 703, seven of the 11 members of the Board including the chair are designated by the President of the Republic. The Committee considers that this selection process can create doubts as to the independence and impartiality of the Board. The Committee therefore requests the Government to take the necessary measures for restructuring the membership of the Public Employee Arbitration Board or the method of appointment of its members so as to more clearly show its independence and impartiality and to win the confidence of the parties.

Collective bargaining in public sector. Social equilibrium compensation agreements. In its previous comment, the Committee had noted that in the local administration services branch, negotiations between the direct employer (local administration) and the unions representing public servants were conducted for a long time prior to the 2012 amendments and had resulted in the conclusion of numerous collective agreements from which tens of thousands of workers were benefiting, while as a result of the application of amended section 32 of Act No. 4688 the so-called “social equilibrium compensation” agreements are not considered as collective agreements anymore. It had therefore requested the Government to indicate whether all matters dealt with previously in direct bargaining between the local administration and organizations representing the employees can still be covered through the centralized bargaining system established under the amended legislation; and whether and how the organizations representing employees of local administrations are able to take part in the negotiations under the new system. The Committee notes that the Government reiterates in this regard that the procedure for concluding a collective agreement for the local administration branch of service is the same as for the other branches, and a collective agreement for this branch should be concluded between the PED and the majority trade union in the branch. The Government further indicates that as the agreements on social equilibrium compensation are not collective agreements for the purpose of Act No. 4688, a different procedure is made possible for the local administrations willing and financially able to conclude such agreements that is described in section 32 of the Act. Pursuant to this provision municipalities and provincial special administrations may conclude agreements on social equilibrium compensation directly with the most representative public servants’ union in the relevant municipality or administration. The Committee also notes the observations of KESK referring to agreements concluded in the municipalities of Gaziantep and Kocaeli pursuant to section 32 of Act No. 4688. The Committee therefore notes that the practice of direct negotiation and conclusion of social equilibrium compensation agreements at the local administration services continues within the framework established in section 32.

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

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

The Committee notes the observations of Education International (EI) and the Education and Science Workers’ Union of Turkey (EGİTİM SEN) and the Government’s reply thereto, as well as those 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 Employer Associations (TİSK) transmitted by the International Organisation of Employers (IOE) received on 31 August 2017, the Government’s reply thereto, and the observations of the TİSK, the Confederation of Turkish Trade Unions (TÜRK-İŞ), and Turkish Confederation of Public Workers Associations (Türkiye Kamu-Sen) communicated with the Government’s report and the Government’s reply thereto. Finally the Committee notes the Government’s detailed reply to the 2015 ITUC observations alleging violations of the Convention in practice.

Scope of the Convention. In its previous comments, the Committee had requested the Government to indicate the manner in which workers’ organizations representing prison staff may participate in negotiations of collective agreements covering their members. The Committee notes the Government’s indication that prison staff like all other public servants are covered by the collective agreements concluded in the public service, even though under section 15 of the Act on Public Servants’ Trade Unions and Collective Agreement (Act No. 4688) they do not enjoy the right to organize. Recalling that all public servants not engaged in the administration of the State must enjoy the rights afforded by the Convention, the Committee requests the Government to take the necessary measures, including legislative review of section 15 of Act No. 4688, with a view to guaranteeing that prison staff can be effectively represented by the organizations of their own choosing in negotiations which affect them.

Articles 1 and 3 of the Convention. Adequate protection against anti-union discrimination. Following up on the recommendations of the June 2013 Conference Committee on the Application of Standards, the Committee had requested the Government to establish a system for collecting data on anti-union discrimination in both private and public sectors. The Committee notes with interest the Government’s indication that within the framework of the “Improving social dialogue in working life” project that is being implemented with the technical support of the Office, it is planned to establish such a data system and to provide access to information with a view to ensuring protection against anti-union discrimination. The Committee also welcomes the Government’s reply to the Confederation of Public Employers’ Trade Unions (KESK) allegations of anti union discrimination in the appointment of the directors of institutes of education, pursuant to which after the Council of State ruled a stay of execution with regard to some of the provisions of the applicable regulations, new regulations were adopted to govern such appointments. The Committee requests the Government to continue providing information on the progress made in the establishment of the system for collecting data on anti-union discrimination in private and public sectors and to provide the text of the Council of State ruling and the latest Regulation on the Assignment of the Administrators of Educational Institutions.

Articles 1, 2 and 3. Massive dismissals in the public sector under the state of emergency decrees. The Committee notes the observations of EGİTİM SEN and the DİSK alleging the anti-union dismissals of a great number of their members and officials under the emergency decrees issued following the coup attempt of July 2016, respectively in the education sector and the municipalities. The Committee further notes that both organizations consider that their members have been targeted for measures of suspension and dismissal because of their membership in unions affiliated to their confederations (KESK and DİSK), and that EGİTİM SEN alleges that administrators of many public institutions reported false charges against their members and officials which led to their dismissal and suspension, with a view to weakening their union to the advantage of the so-called “partisan” unions. Accordingly, 1,959 DİSK Genel-İş members were allegedly dismissed from municipalities by decree or decisions of trustees who were appointed to replace deposed mayors, and 1,564 EGİTİM-SEN members including three executive board members and 169 local board members were allegedly also dismissed since the state of emergency was declared. Both organizations observe that no means to challenge these decisions was afforded to the individuals concerned. The Committee also notes that the DİSK indicates that administrative courts and the Constitutional Court declared that they are not competent to examine the cases against dismissals ordered by emergency decrees, and that, while a “State of Emergency Practices Examination Commission” was established, in view of the large number of these cases, the special working group set up to examine them lacks sufficient resources. The Committee notes the Government’s replies to the observations of the DİSK and EGİTİM-SEN indicating that in the aftermath of the coup attempt of July 2016, the state of emergency was declared in accordance with the Constitution in order to eliminate the threat against the democratic order and the state of emergency decrees were issued to remove the members of the organizations linked to or affiliated with the Fethullahist Terrorist Organization/Parallel State Structure (FETO/PSS) from the state institutions. The Government refers in particular to section 4 of the Decree-Law No. 667 providing that all state officials who are considered to have affiliation, membership or connection to terrorist organizations and groups designated by the National Security Council as engaged in activities against the national security shall be dismissed from public service pursuant to judicial or disciplinary sanctions, as an extraordinary and final measure aiming to remove the existence of terrorist organizations and other structures considered as acting against national security. The Government indicates, however, that a Commission to Review the Actions Taken under the State of Emergency was established in order to examine and evaluate, inter alia, the applications of the individuals who were dismissed or discharged from their functions as well as from trade unions, federations and confederations dissolved directly through the state of emergency decrees. The term of duty of the Commission is two years, extendable for one more year. It has seven members and has the authority to obtain all the necessary documents and information from the relevant institutions subject to the condition of respect for the secrecy of the inquiry and State secrets. The Review Commission decides by majority vote. Applications must be lodged within 60 days as of a starting date fixed by the Government with regard to dismissals ordered in accordance with past decrees, and within 60 days as of the entry into force of future decrees ordering further dismissals. Annulment actions against the decisions of the Review Commission can be filed in Ankara Administrative Courts and will be determined by the High Board of Judges and Prosecutors. The Government further indicates that the members of the judiciary removed by the decisions of the high courts are given the right to file a case before the Council of the State.

The Committee wishes to emphasize that the protection against anti-union discrimination afforded to the workers by the Convention, the other ILO fundamental Conventions as well as other human rights instruments, remains valid in all political circumstances. In circumstances of extreme gravity, however, certain guarantees may be temporarily suspended on the conditions 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. In this respect, the Committee notes with deep concern that the dismissals undertaken under emergency decrees took place without guaranteeing to the workers concerned the right to defend themselves, and that they amounted moreover to a deprival of the right to access public office for the trade union members and officials concerned. While duly noting the seriousness of the situation following the coup attempt, the Committee considers that in view of the absence of minimal due process guarantees for the sanctioned persons and the ensuing deprival of their right to access public office, the abovementioned decrees do manifestly not allow to guarantee that the dismissals of union members and officials have not been decided by reason of their trade union membership and that they do not constitute acts of anti-union discrimination under the Convention. 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. The Committee notes with concern this situation as well as the allegations that, taking advantage of the absence of procedural means to challenge the dismissals under the state of emergency decrees, certain administrators reported false charges against the trade unionists to provoke their dismissal and to favour other unions. The Committee wishes to emphasize that such practices, if proved, would constitute acts of interference in violation of Article 2 of the Convention and cannot be justified by the invocation of state of emergency. While duly noting that Turkey was in a state of acute national crisis following the coup attempt, in view of the above, the Committee urges the Government to ensure that the ad hoc Commission established to review the dismissals is accessible to all the dismissed trade union members 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 unionists do not bear alone the burden of proving that the dismissals were of an anti-union nature, by requiring the employers or the relevant authorities to prove that the decision to dismiss them was based on other serious grounds. In case it is established that the dismissal of trade unionists has been based on anti-union motives, the Committee firmly expects that they be reinstated in their posts and compensated due to the deprivation of their wages, with maintenance of acquired rights. In view of the renewal of the state of emergency for the fifth time on 16 October 2017, the Committee further requests the Government to take the necessary measures to ensure that, in this context, no workers will be dismissed by reason of union membership or because of participation in union activities. The Committee further urges the Government to take the necessary measures to prevent and remedy any eventual abuse of the state of emergency to interfere in trade union activities and functioning and to provide information on the measures taken in this regard. The Committee requests the Government to provide detailed information in this respect.

Article 4. Promotion of collective bargaining. Cross-sector bargaining. In its previous comment, the Committee had requested the Government to review the impact of section 34 of the Act on Trade Unions and Collective Bargaining Agreements (Act No. 6356) which provided that a collective work agreement may cover one or more than one workplace in the same branch of activity and to consider its amendment so as to ensure that it does not restrict the possibility for the parties to engage in cross-sector regional or national agreements. The Committee notes the Government’s indication that the existing multi-level system of collective bargaining allowing for workplace level, enterprise level and group level collective agreements as well as framework agreements at the branch level is a product of a long and well-established industrial relations system in Turkey and that it does not seem that social partners feel a need for change in this regard. The Committee further notes the observation of the TİSK in this regard indicating that during the drafting and adoption phases of Act No. 6356, the social partners reached a consensus on maintaining the existing system that has been in place for almost 30 years and that there is no limitation as to the legality of cross-sector agreements in the Turkish law, as is illustrated by the fact that for years the main provisions of the collective agreements concerning public enterprises have been determined by a framework protocol concluded at the cross-sector level. Taking due note of the information provided by the Government and the TİSK, the Committee requests the Government to indicate whether cross-sector bargaining through regional or national agreements is possible in the private sector under the current legal framework.

Requirements for becoming a bargaining agent. The Committee notes that section 41(1) of Act No. 6356 initially set out the following requirement for becoming a collective bargaining agent: the union should represent at least 1 per cent of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. The Committee notes that the Committee on Freedom of Association has referred to it the legislative aspects of Case No. 3021 (see 382nd Report, June 2017, paragraphs 140–145) concerning the impact of the application of Act No. 6356 on the trade union movement and the national collective bargaining machinery as a whole. The Committee notes that the Government recalls that the 3 per cent threshold was decreased to 1 per cent by Act No. 6552 of 10 September 2014 and that additional section 1 of Act No. 6356 stipulating that the 1 per cent membership threshold should be applied as 3 per cent with regard to trade unions that are not members of confederations participating in the Economic and Social Council, was repealed by the Constitutional Court. Therefore the 1 per cent branch threshold applies to all trade unions. The Committee further welcomes the Government’s indication that Act No. 6745 renewed the exceptions established by Act No. 6645 for three categories of previously authorized trade unions, dispensing them from the branch threshold requirement, and that ten trade unions benefit from these changes until 6 September 2018. According to the statistics provided in the Government report the rate of unionization in the private sector was 11.96 per cent in January 2016, 11.50 per cent in July 2016, 12.18 per cent in January 2017 and 11.95 per cent in July 2017. Coverage of collective agreements fell from 10.81 per cent in 2014 to 9.21 per cent in 2015. Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold and noting that the exemption granted to the previously authorized unions is provisional, the Committee requests the Government to continue reviewing the impact of the perpetuation of the branch threshold requirement on the trade union movement and the national collective machinery as a whole in full consultation with the social partners, and should it be confirmed that the perpetuation of the 1 per cent threshold has a negative impact on the coverage of the national collective bargaining machinery, take the necessary measures to revise the law with a view to its removal.

In its 2013 comments, the Committee had noted section 42(3) of Act No. 6356 which provides that if it is determined that there exists no trade union which meets the conditions for authorization to bargain collectively, such information is notified to the party which made the application for the determination of competence; and section 45(1) which stipulates that an agreement concluded without an authorization document is null and void. The Committee had recalled in this respect that if no union meets the required threshold, collective bargaining rights should be granted to all unions, at least on behalf of their own members. The Committee notes the observation of TURK-İS indicating that the 50 per cent workplace threshold is difficult to reach in a context where flexible labour systems are proliferating and supported by the legislation. With regard to the enterprise threshold, the Committee notes TURK-İS’s indication that in cases where none of the trade unions organizing the workers in the same enterprise represents 40 per cent of the workers, or otherwise in the exceptional cases when two unions reach that same threshold, no union will be considered competent as a collective bargaining agent. The Committee once again recalls that under a system of the designation of an exclusive bargaining agent, if no union represents the required percentage of workers to be declared the exclusive bargaining agent, all the unions in the unit, jointly or separately, should be able to engage in collective bargaining, at least on behalf of their own members. Likewise, the Committee considers that when more than one union reaches the enterprise threshold, they should be able to engage in voluntary collective bargaining, at least on behalf of their own members. In the light of the above, the Committee requests the Government to take the necessary measures to amend the legislation, in consultation with the social partners, and to provide information in this respect.

In its previous comment, the Committee had requested the Government to provide information on any use of sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) that provide for a variety of situations in which the certificate of competence to bargain may be withdrawn by the authorities and to continue to review their application with the social partners concerned with a view to their eventual amendment, favouring collective bargaining where the parties so desire. The Committee notes the TİSK observation according to which in practice these provisions have no negative effect on the collective bargaining process as unions are very careful about the procedural rules. The Committee further notes that the Government reiterates in its report that these provisions are intended to guarantee, speed up and shorten the bargaining procedure. Taking due note of the information provided, the Committee requests the Government to provide information on the dialogue concerning the application of these provisions with the social partners concerned and on any use of these provisions.

Settlement of labour disputes. As regards mediation, the Committee notes the Government’s indication that the power of the competent authority to appoint a mediator in case the parties cannot agree on one was intended to prevent the parties from interrupting the collective bargaining process by obstructing the appointment of a mediator and that there is no request from social partners to change or repeal the mediation system. The Committee takes due note of this information.

Articles 4 and 6. Collective bargaining in the public service. Material scope of collective bargaining. The Committee notes the observations of the Türkiye Kamu-Sen on collective bargaining in the public service under Act No. 4688 as amended in 2012 and the Government reply thereto as well as the 2015 observations of the KESK regarding the same subject matter. The Committee notes that Türkiye Kamu-Sen and KESK underline that section 28 of Act No. 4688 restricts the scope of collective agreements to “social and financial rights” only, thereby excluding issues such as working time, promotion and career as well as disciplinary sanctions. The Committee notes that the Government indicates in this regard that the 2012 amendments of section 28 were meant to give collective bargaining a significantly wider role in determining the economic and social rights of public servants. The Government adds, however, that when the bargaining parties agree to a need for legislative change, it is necessary to proceed accordingly, since the status of public servants is regulated by law. The Committee recalls that public servants that are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee wishes to further recall however, that the Convention is compatible with systems requiring parliamentary approval of certain labour conditions or financial clauses of collective agreements concerning the public sector, as long as the authorities respect the agreement adopted. Bearing in mind the compatibility with the Convention of the special bargaining modalities in the public sector as mentioned above, the Committee requests the Government to take the necessary measures to remove restrictions on matters subject to collective bargaining so that issues which are included in conditions of employment are not excluded from the scope of collective bargaining in the public service.

With regard to the legal framework set in Act No. 4688, as amended in 2012, and its application, the Committee notes the observations of KESK and Türkiye Kamu-Sen that describe a completely centralized collective bargaining system. The Committee notes that pursuant to section 29 of Act No. 4688, Public Employers’ Delegation (PED) and Public Servants’ Unions Delegation (PSUD) are the parties to the Collective Agreements concluded in the public service. The proposals for the general section of the Collective Agreement are prepared by the confederation members of the PSUD and the proposals for collective agreements in each service branch are made by the relevant branch trade union representative member of the PSUD. The Committee notes the observation of Türkiye Kamu-Sen in this regard, indicating that many of the proposals of authorized unions in the branch are accepted as proposals relating to the general section of the agreement meaning that they should be presented by a confederation pursuant to the provisions of section 29. According to Türkiye Kamu-Sen, this mechanism deprives the branch unions from the capacity to directly exercise their right to make proposals.

The Committee further notes that negotiations on general and branch specific issues take place simultaneously and in a single process during one month. In this regard the Committee notes Türkiye Kamu-Sen’s observation that the fact that branch-specific matters are evaluated in the same process as the matters concerning all public servants in a very short time puts collective bargaining under pressure. It further notes the KESK’s observation that the general and branch specific agreements should be concluded separately. The Committee takes note of the Government’s reply to KAMU-SEN’s observation that bargaining proposals for service branches are discussed in the technical committees established for each branch separately, that these committees’ works are conducted independently from each other and the conclusion of an agreement in one branch does not mean that others are under an obligation to conclude an agreement too. The Committee further notes that pursuant to section 29, at the end of the bargaining process, a single collective agreement comprising a general section and branch-specific sections is signed by the chair of the PED (the Minister of Labour) on behalf of public administration. On behalf of public employees, the chair of the PSUD (representing the confederation that has the majority of members in the public service, currently MEMUR-SEN) signs the general part and the related trade union representatives sign the branch-specific parts. In case of failure of negotiations, the same authorities that are entitled to sign the collective agreement can apply to the Public Employees’ Arbitration Board. The Board decisions will be final and will have the same effect and force as the collective agreement. The Committee notes that Türkiye Kamu Sen and KESK both object to the fact that although the top three confederations with the most members participate in collective bargaining, only the representative of the majority confederation is entitled to sign the collective agreement and apply to the Arbitration Board. The Committee further notes the KESK’s observation that the majority of the Public Employee Arbitration Board are designated by the employers and the Council of Ministers which creates doubts about the independence of this body.

The Committee considers that where joint bodies within which collective agreements must be concluded are set up, and the conditions imposed by law for participation in these bodies are such as to prevent a trade union which would be the most representative of its branch of activity from being associated in the work of the said bodies, the principles of the Convention are impaired. In this respect, the Committee notes that although the most representative unions in the branch are represented in the PSUD and take part in bargaining within branch-specific technical committees, their role within the PSUD is restricted in that they are not entitled to make proposals for collective agreements, in particular where their demands are qualified as general or related to more than one service branch. The Committee requests the Government to ensure that Act No. 4688 and its application enable the most representative unions in each branch to make proposals for collective agreements including on issues that may concern more than one service branch, as regards public servants not engaged in the administration of the State.

The Committee further notes the KESK’s observation pursuant to which in the local administration services branch, negotiations between the direct employer (local administration) and the unions representing public servants were conducted for a long time prior to the 2012 amendments and had resulted in the conclusion of numerous collective agreements from which tens of thousands of workers were benefiting, while as a result of the application of amended section 32 of Act No. 4688 the so-called “social equilibrium compensation” agreements are not considered as collective agreements anymore. The Committee takes note of the Government’s indication in this regard that under Act No. 4688, the procedure for concluding a collective agreement for the local administration branch of service is the same as for the other branches, and a collective agreement for this branch should be concluded between the PED and the majority trade union in the branch. The Committee notes in particular the Government observation that if the social equilibrium compensation agreements were considered to be a “collective agreement” it would mean that two collective agreements would be concluded for the same public servants for the same period, which is not possible. The Committee notes that while in practice direct bargaining between the employer and the workers’ unions existed previously in the local administration branch, the Government considers that the amended Act No. 4688 excludes the continuation of that practice. Recalling that for a number of years it had requested the Government to ensure that the direct employer participates in genuine negotiations with trade unions representing public servants not engaged in the administration of the State, the Committee requests the Government to indicate whether all matters dealt with previously in direct bargaining between the local administration and organizations representing the employees can still be covered through the centralized bargaining system established under the amended legislation; and whether and how the organizations representing employees of local administrations are able to take part in the negotiations under the new system.

In addition, the Committee requests the Government to reply to the KESK’s observation concerning the independence of the Public Employees’ Arbitration Board in view of the fact that the majority of its members are designated by the employers and the Council of Ministers.

The Committee finally requests the Government to provide, as a matter of urgency, the information requested with respect to the massive dismissals in the public sector examined above.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations made by the Turkish Confederation of Employers’ Associations (TİSK) and the International Organisation of Employers (IOE) received on 1 September 2014 and 28 August 2015. The Committee also notes the observations made by the Municipality and Private Government Employees’ Union (BEM-BIR-SEN) received on 30 April 2014 and the Government’s reply thereto; the observations from the All Municipality Workers’ Trade Union of Turkey (TUM YEREL-SEN) received on 30 October 2014 and the Government’s reply thereto; the observations from the International Trade Union Confederation (ITUC) received on 1 September 2014 and the Government’s reply thereto; and the observations of the Confederation of Public Employees’ Trade Unions (KESK) received on 1 September 2014 and the Government’s reply thereto. The Committee further notes the Government’s detailed replies to the Confederation of Progressive Trade Unions of Turkey (DİSK) observations received on 8 April 2013. It also notes the ITUC observations received on 1 September 2015. Finally, the Committee notes the observations from the TİSK, the Confederation of Turkish Trade Unions (TÜRK-İŞ), the Confederation of Turkish Real Trade Unions (HAK-İŞ), the DİSK, the Confederation of Public Servants’ Unions (MEMUR-SEN), the Confederation of Turkish Public Employees’ Union (Türkiye Kamu-Sen) and the KESK which the Government sent with its report and which the Committee will consider as soon as it receives the translation.

The Committee takes due note of the Government’s detailed reply to the allegations of violations of collective bargaining rights and cases of anti-union dismissals submitted by the ITUC in 2014 and requests the Government to reply to the ITUC’s more recent observations from 2015 alleging further violations of the Convention in practice.

Scope of the Convention. The Committee had previously requested the Government to clarify whether domestic workers were covered by the new legislation. The Committee notes the information provided by the Government, as well as by the TİSK and the IOE, in this regard and especially notes with interest the Government’s indication that domestic workers enjoy the rights set out in the Act on trade unions and collective bargaining agreements (Act No. 6356) of 7 November 2012, and that a domestic workers’ union was in fact registered on 13 February 2014 within the framework of the general works sector.

The Committee had also requested the Government to clarify whether the rights under the Convention had been afforded to prison guards. The Committee takes due note of the Government’s indication that the recent Constitutional Court rulings extending the right to organize to the civilian personnel of the police did not include prison staff. The Government adds however that prison staff are covered by collective agreements concluded in the public service. The Committee recalls in this regard its 2012 General Survey on the fundamental Conventions, paragraph 168, in which it has indicated that the right to organize and to bargain collectively also applies to prison staff. The Committee requests the Government to indicate the manner in which workers’ organizations representing prison staff may participate in negotiations of collective agreements covering their members.

In its previous comments, the Committee noted that Act No. 6356 introduced a requirement for the publication of the application and withdrawal forms relating to trade union membership on the e-State gate and requested the Government to provide information on the measures taken or envisaged to ensure that the e-State gate did not create an obstacle for the exercise of the rights guaranteed by this Convention. The Committee takes due note of the Government’s comments, as well as observations of the TİSK and the IOE, that the e-State system is simpler and easier than the earlier notary system, does not put a burden on either workers or their organizations, is free of charge and protects personal data. The Committee further notes the Government’s confirmation that the information available on the e-State gate is not public and therefore not subject to abuse. The Penal Code criminalizes the recording of personal data on trade union affiliation, as well as obtaining and disseminating such data unlawfully.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee once again recalls that the June 2013 Conference Committee on the Application of Standards had requested the Government to establish a system for collecting data on anti-union discrimination in the private sector and to provide information on the functioning of national complaints mechanisms and all statistical data related to anti-union discrimination in the private and public sectors. The Committee notes the Government’s indication that no system exists for collecting such data. The Committee also notes however the serious allegations of anti-union harassment raised by the KESK in relation to the Government’s use of the Basic National Education Act and the Regulations on the appointment of the directors of institutes of education, to discriminate against its members. The Committee requests the Government to reply specifically to the most recent observations of the KESK in this regard. In the light of the continuing concerns raised, the Committee once again requests the Government to establish a system for collecting data on anti-union discrimination (in both private and public sectors) and to provide information on the concrete steps taken in this respect. The Committee reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

The Committee notes with interest the clarification brought by the Constitutional Court in a judgment handed down on 22 October 2014 which raises the fine that shall be payable for unjustified dismissal and further grants the right for workers to initiate legal proceedings for reinstatement should they consider that they were dismissed on anti-union grounds.

Article 4. Collective bargaining. In its previous comments, the Committee noted that section 34 of Act No. 6356 provided that a collective work agreement may cover one or more than one workplace in the same branch of activity, which, it considered, appeared to limit the right of workers’ and employers’ organizations to freely determine how and at what level to carry out collective bargaining. The Committee notes the Government’s indication that the Act has also introduced the possibility of concluding a “framework agreement” at the branch of activity level alongside enterprise level collective labour agreements. The Government adds that the use of this new means of bargaining and the experience to be gained will show the direction that the Turkish collective bargaining system might take in the future. The Committee therefore requests the Government to review the impact of section 34 of the Act and to consider, in consultation with the social partners, its amendment in a manner so as to ensure that it does not restrict the possibility of the parties to engage in cross-sector regional or national agreements. It requests the Government to provide information on the steps taken in this regard.

The Committee recalls its previous comments in relation to section 35(2) of Act No. 6356 which states that the parties cannot extend or reduce the validity of a collective agreement once signed. In this regard, the Committee takes due note of the Government’s indication that this provision does not restrict the right of the parties to a collective agreement to agree to make changes to its provisions, but rather restricts only the possibility of changing the agreement’s duration with a view to recognizing rival trade unions’ right to collective bargaining by imposing time limits to the duration of the agreement.

The Committee recalls that section 41(1) of Act No. 6356 sets out the following requirement for becoming a collective bargaining agent: the union should represent at least one per cent (progressively, 3 per cent) of the workers engaged in a given branch of activities and more than 50 per cent of workers employed in the workplace and 40 per cent of workers of the enterprise to be covered by the collective agreement. Reiterating its long-standing concerns related to the double threshold for collective bargaining which requires on the one hand representation at the branch level and on the other hand majority representation at the workplace, the Committee expressed the firm hope that the thresholds would be revised and lowered in consultation with the social partners. The Committee notes with interest the Government’s indication that Act No. 6356 was amended by Act No. 6645 of 4 April 2015 to provide the right to bargain collectively without meeting the abovementioned branch threshold for the following categories of trade unions: (i) trade unions which could not complete the transitional period; (ii) trade unions which fulfilled the 10 per cent threshold according to the statistics published in July 2009; and (iii) the abovementioned categories of trade unions which conclude labour agreements in other workplaces of the same branch of activity where they have a majority within one year after the entry into force of this provision. According to the statistics published by the Ministry of Labour and Social Security, the rate of unionization in the private sector rose from 9.21 per cent in January 2013 to 10.65 per cent in January 2015 and to 11.21 per cent in July 2015. According to the Government, this attests to the positive effects of the e-State gate.

Recalling the concerns that had been expressed by several workers’ organizations in relation to the perpetuation of the double threshold, accompanied by new methods of data collection on representativity, the Committee trusts that the Government will continue to review this matter with the social partners concerned, including as regards the impact of the thresholds on collective bargaining coverage. The Committee requests the Government to provide information on the steps taken in this regard and statistics related to collective bargaining coverage in the country.

In its previous comments, the Committee had noted that sections 46(2), 47(2), 49(1), 51(1), 60(1) and (4), 61(3) and 63(3) provided for a variety of situations in which the certificate of competence to bargain may be withdrawn by the authorities (the failure to call on the other party to start negotiations within 15 days of receiving the certificate of competence; the failure to attend the first collective bargaining meeting or failure to begin collective bargaining within 30 days from the date of the call; failure to notify a dispute to the relevant authority within six working days; failure to apply to the High Arbitration Board; failure to take a strike decision or to begin a strike in accordance with the legislative requirements; and failure to reach an agreement at the end of the term of strike postponement). The Committee requested the Government to take the necessary measures to amend these provisions to avoid interference in the bargaining process. The Committee notes the Government’s indication that these measures are designed to ensure the bargaining process is completed in 120 days and that there is no restriction on the continuation of the negotiations between parties during strike action. The Committee requests the Government to provide information on any use of these sections and to continue to review their application with the social partners concerned with a view to their eventual amendment, favouring collective bargaining where the parties so desire.

As regards mediation, the Committee notes the Government’s indication that the favoured situation is where the parties agree on a mediator from an official list and the parties are under no obligation to accept the mediator’s proposals. The Committee requests the Government to provide information on any use of section 50(1) which permits a unilateral determination of the mediator where the parties have not been able to agree.

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

[The Government is asked to reply in detail to the present comments in 2017.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the observations provided by the Government on the 2011 comments of the International Metalworkers’ Federation (IMF) and of the International Trade Union Confederation (ITUC). The Committee also notes the comments made by the ITUC in a communication dated 31 July 2012 alleging violations of collective bargaining rights and numerous cases of anti-union dismissals. The Committee requests the Government to provide its observations thereon in its next report. The Committee is examining the Government’s observations on matters raised by Education International (EI) in 2011, as well as the comments submitted by EI on 31 August 2012, in the framework of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous observation it had observed that the ITUC referred to widespread acts of anti-union discrimination in the public and private sectors and had noted that similar allegations were submitted by the Public Employees’ Trade Unions (KESK). The Committee requested the Government to indicate the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee noted the observations provided by the Government on the ITUC and the KESK comments. The Government indicated, in particular, that in addition to the abovementioned legislative provisions which, in its view provide for sufficient protection against all types of discrimination, the necessary warnings have been issued by the Government and four circulars have been published by the Office of the Prime Minister on the unacceptability of interference in trade union activities of public employees. The Committee further noted that the Government indicated that no statistical database regarding complaints of anti-union discrimination is kept by the Ministry of Labour and Social Security. The Government further explained that, as regards the public sector, public servants have the right to make written or verbal complaints to their supervisors requesting to investigate cases of trade union discrimination. If the alleged cases are not resolved following this procedure, administrative proceedings can be initiated. The Government informed that the State Personnel Administration possesses statistical information and documents submitted to it by the relevant institutions regarding claims relating to cases of anti-union discrimination in the public sector. The Committee once again requests the Government to provide this statistical data. It notes once again that in its latest communication, the ITUC refers to cases of reinstatement ordered by the court but alleges that justice is too slow for many. Noting once again, however, that no information has been provided by the Government with regard to the public and private sector, the Committee reiterates its previous request for information and expresses the firm hope that the Government will take all necessary measures to ensure that the provisions of the Convention are effectively applied.

The Committee recalls that in its previous observation it had noted the draft Act on Trade Unions amending Act No. 2821 on trade unions and Act No. 2822 on collective agreements, strikes and lockouts. The Committee notes that this draft, renamed “Collective Labour Relations Act”, was submitted to the Prime Minister in October 2011 and was discussed again in a special committee. The Committee understands from the ITUC that this second draft has been condemned by several trade union organizations for containing regressive provisions compared to the existing law and to the first draft law discussed with social partners earlier in 2011. The Committee notes that the Collective Labour Relations Act was adopted by the Parliament on 18 October 2012. The Committee requests the Government to send a copy of the Collective Labour Relations Act, amending Acts Nos 2821 and 2822. It expresses the firm hope that the necessary amendments were made to the legislation, taking into account the comments of the Committee concerning remedies and compensation and free and voluntary collective bargaining.

Collective bargaining in the public service. The Committee recalls that it had previously noted that Act No. 5982 of 2010 repealed several provisions of the Constitution which previously restricted collective bargaining rights and granted, by virtue of its section 53, the right to conclude collective agreements to public servants and other public employees, and that these constitutional amendments would be followed by the relevant legislative amendments. The Committee notes that Act No. 6289, with significant amendments to Act No. 4688, has been adopted on 4 April 2012. It notes with satisfaction that this new Act addresses some of the issues the Committee has raised in the past, notably regarding the scope of collective bargaining which now extends not only to financial questions but to “social rights” (section 28 of Act No. 6289), the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that previously provided for (extended from 15 days to one month under section 31 of Act No. 6289), the removal of the possibility for the authorities to modify collective agreements signed by the parties and the change of scope of the law from collective “talks” to collective “agreements”. The Committee notes, however, that its observations have not been fully taken into account with regard to the need to ensure that: (i) the direct employer participates, alongside the financial authorities, in genuine negotiations with trade unions representing public servants not engaged in the administration of the State; and (ii) a significant role is left to collective bargaining between the parties. The Committee once again recalls that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State, such as civilian personnel in military institutions and prison guards, who are excluded from this right and, therefore, from the right to be represented in negotiations.

Finally, the Committee noted that in its statement before the Conference Committee in 2011, the Government referred to the adoption in February 2011 of an Act providing for a collective agreement premium for members of public servant trade unions and to the abrogation of a criticized provision concerning contract personnel in the public sector. The Committee once again requests the Government to provide a copy thereof.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments made by the Turkish Union of Public Employees in the Education, Training and Science Services. (EGITIM SEN) in a communication dated 17 December 2010 and the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 alleging violations of collective bargaining rights and numerous cases of anti-union dismissals. The Committee requests the Government to provide its observations thereon in its next report. The Committee further notes the comments submitted by the International Metalworkers’ Federation (IMF) in a communication dated 31 August 2011 alleging anti-union dismissals that have taken place at two enterprises, and the Government’s observations thereon. The Committee examines the comments submitted by Education International (EI) in the framework of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee recalls that in its previous observation it had noted the draft Act on Trade Unions amending Acts Nos 2821 (Trade Unions Act) and 2822 (Collective Agreements, Strikes and Lock-outs Act). In this respect, the Committee notes the discussion that took place in the June 2011 Conference Committee on the Application of Standards regarding the application of Convention No. 87 in Turkey and, in particular, the Government’s statement that more time was needed for revising the legislation regarding the industrial relations system and that the harmonization process of the legislation had not been fully completed. The Committee expresses the firm hope that the necessary measures aimed at the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688 (Public Servants Trade Unions Act) will be taken without further delay and that any new legislation will take into account the following points raised by the two Committees.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous observation, while taking due note of legislative provisions introducing dissuasive sanctions against acts of anti-union discrimination (sections 118 and 135 of the Penal Code No. 5237, and section 18(2) of Act No. 4688), it observed that the ITUC referred to the widespread incidences of acts of anti-union discrimination in the public and private sectors, such as transfers of public employees who are trade union members or officers, interference in the activities of public sector trade unions by the Government as employer, and blacklisting and pressure to quit the union in the private sector. The Committee noted that similar allegations were submitted by the Public Employees’ Trade Unions (KESK). The Committee requested the Government to indicate the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee notes the observations provided by the Government on the ITUC and KESK comments. The Government indicates, in particular, that in addition to the abovementioned legislative provisions which, in its view provide for sufficient protection against all types of discrimination, the necessary warnings have been issued by the Government and four circulars have been published by the Office of the Prime Minister on the unacceptability of interference in trade union activities of public employees. The Committee further notes that, in its report, the Government indicates that no statistical database regarding complaints of anti-union discrimination is kept by the Ministry of Labour and Social Security. It further explains that, as regards the public sector, public servants have the right to make written or verbal complaints to their supervisors requesting to investigate cases of trade union discrimination. If the alleged cases are not resolved following this procedure, administrative proceedings can be initiated. The Government informs that the State Personnel Administration possesses statistical information and documents submitted to it by the relevant institutions regarding claims relating to cases of anti-union discrimination in the public sector. The Committee requests the Government to provide this statistical data. The Committee notes that in its latest communication, the ITUC refers to cases of reinstatement ordered by the court. Noting, however, that no information has been provided by the Government with regard to the private sector and noting that some of the ITUC allegations concern the private sector, the Committee reiterates its previous request for information and expresses the firm hope that the Government will take all necessary measures to ensure that the provisions of the Convention are effectively applied.

Remedies and compensation. The Committee had previously requested the Government to update the sanctions provided for under sections 59(2) (non reinstatement of trade union officers) and 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 and to ensure that the compensation afforded to a trade union officer who wishes to return to his/her post and is not reinstated for anti-union reasons has a dissuasive effect. The Committee notes in this respect that section 24 of the draft Law on Trade Unions would appear to address the issue previously raised by the Committee with regard to adequate compensation for acts of anti-union discrimination as it proposes to provide, in addition to the compensation provided for under the Labour Law (No. 4857), for a compensation of not less than the worker’s annual wage. With regard to the non-reinstatement of a trade union officer who wishes to return to his/her post, section 22 of the draft merely indicates that, while calculating the compensation, the employment period in the workplace shall be taken into consideration, as well as the wage and other rights enjoyed by the worker prior to termination. The Committee considers that compensation established solely pursuant to this criterion would not constitute a sufficiently dissuasive sanction against an employer. The Committee therefore once again requests the Government to review the draft Law on Trade Unions so as to further amend the relevant sections of Act No. 2821.

Article 4. Free and voluntary collective bargaining. The Committee recalls that it had previously expressed the hope that the Government would take the necessary measures to amend section 12 of Act No. 2822 so as to ensure that, where no union meets the 50 per cent membership criterion, the existing unions at the workplace or enterprise may bargain at least on behalf of their own members regardless of whether they are affiliated to a confederation or not. The Committee notes that, while section 39 of the new draft Law on Trade Unions, amending section 12 of Act No. 2822, proposes to abolish the requirement of affiliation to a major confederation in order for a union to be able to engage in collective bargaining at the workplace level, the proposed amendment maintains the requirement that unions should represent the majority of workers in a workplace (50 per cent plus one) in order to enter into negotiations with the employer with a view to concluding a collective agreement. The Committee once again recalls that in such systems, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members. The Committee therefore once again requests the Government to review the draft Law on Trade Unions so as to further amend section 12 of Act No. 2822.

Collective bargaining in the public service. The Committee recalls that it had previously noted that Law No. 5982 of 2010 repealed several provisions of the Constitution which previously restricted collective bargaining rights and granted, by virtue of its article 53, the right to conclude collective agreements to public servants and other public employees. The Committee had also taken note of the Government’s indication that the constitutional amendment would be followed by the relevant legislative amendments and trusted that Act No. 4688 would be soon amended so as to ensure that public servants enjoy full collective bargaining rights and not just the right to hold “collective consultative talks” as currently established. The Committee therefore once again trusts that Act No. 4688 would be soon amended so as to bring it into conformity with the newly amended Constitution and the Convention by addressing the following points raised previously: (i) if the legislation is to provide for the direct employer to participate in genuine negotiations with trade unions representing public servants not engaged in the administration of the State, the need to ensure that a significant role is left to collective bargaining between the parties; (ii) the need to guarantee clearly within the legislation that negotiations cover not only financial questions but also other conditions of employment; (iii) the need to clearly guarantee that the legislation does not give the authorities, in particular the Council of Ministers, the power to modify or reject collective agreements in the public sector; and (iv) the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that currently provided for (currently 15 days under section 34).

The Committee notes that in its statement before the Conference Committee, the Government referred to the adoption in February 2011 of an Act providing for a collective agreement premium for members of public servant trade unions and to the abrogation of a criticized provision concerning contract personnel in the public sector. The Committee requests the Government to provide a copy thereof.

The Committee further once again recalls that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State who are excluded from this right and, therefore, from the right to be represented in negotiations (as addressed in the comments on the application of Convention No. 87).

The Committee urges the Government to engage in ongoing assistance with the ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688, and expresses the firm hope that the final texts will take fully into account its comments above. It requests the Government to transmit the relevant legislative texts or proposed drafts thereof with its next report.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, by the Confederation of Public Employees’ Trade Unions (KESK) in communications dated 20 August 2009 and 28 August 2010, and by the Turkish Public Workers Labour Union (TÜRKIYE KAMU-SEN) in a communication dated 15 September 2009. The Committee requests the Government to provide its observations thereon in its next report.

While the Committee notes the observations provided by the Government on the comments made by the ITUC in a communication dated 29 August 2008, it regrets that no observations have been provided by the Government on the comments previously made by KESK in a communication dated 1 September 2008, and by DISK in a communication dated 2 September 2008. The Committee once again requests the Government to provide its observations thereon.

The Committee notes that the Government’s report on the application of the Convention has not been received.

The Committee notes that an ILO high-level bipartite mission visited the country in March 2010 pursuant to a request by the Conference Committee on the Application of Standards in 2009. The Committee further notes the draft Law on Trade Unions amending Acts Nos 2821 and 2822, prepared by a “scientific committee” appointed by the Ministry in 2009.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous observation, while taking due note of legislative provisions introducing dissuasive sanctions against acts of anti-union discrimination (sections 118 and 135 of the Penal Code No. 5237, and section 18(2) of Act No. 4688), it observed that the ITUC referred to the widespread incidences of acts of anti-union discrimination in the public and private sectors, such as transfers of public employees who are trade union members or officers, interference in the activities of public sector trade unions by the Government as employer, and blacklisting and pressure to quit the union in the private sector. The Committee notes with concern that similar allegations were submitted by KESK in its communications. In view of the absence of the Government’s reply thereon or any other information provided by the Government in this respect, the Committee once again requests the Government to indicate in its next report the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee expresses the firm hope that the Government will take all necessary measures to ensure that the provisions of the Convention in this regard are applied both in law and in practice.

The Committee had previously requested the Government to update the sanctions provided for under sections 59(2) (non-reinstatement of trade union officers) and 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 and to ensure that the compensation afforded to a trade union officer who wishes to return to his/her post and is not reinstated for anti-union reasons has a dissuasive effect. The Committee notes in this respect that section 24 of the draft Law on Trade Unions would appear to address the issue previously raised by the Committee with regard to adequate compensation for acts of anti-union discrimination as it proposes to provide, in addition to the compensation provided for under the Labour Law (No. 4857), for a compensation of not less than the worker’s annual wage. With regard to the non-reinstatement of a trade union officer who wishes to return to his/her post, section 22 of the draft merely indicates that, while calculating the compensation, the employment period in the workplace shall be taken into consideration, as well as the wage and other rights enjoyed by the worker prior to termination. The Committee considers that compensation established solely pursuant to this criterion would not constitute a sufficiently dissuasive sanction against an employer. The Committee therefore requests the Government to review the draft Law on Trade Unions so as to further amend the relevant sections of Act No. 2821.

Article 4. Free and voluntary collective bargaining. The Committee recalls that it has previously expressed the hope that the Government would take the necessary measures to amend section 12 of Act No. 2822 so as to ensure that, where no union meets the 50 per cent membership criterion, the existing unions at the workplace or enterprise may bargain at least on behalf of their own members regardless of whether they are affiliated to a confederation or not. The Committee notes that, while section 39 of the new draft Law on Trade Unions, amending section 12 of Act No. 2822, proposes to abolish the requirement of affiliation to a major confederation in order for a union to be able to engage in collective bargaining at the workplace level, the proposed amendment maintains the requirement that unions should represent the majority of workers in a workplace (50 per cent plus one) in order to enter into negotiations with the employer with a view to concluding a collective agreement. The Committee once again recalls that in such systems, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members. The Committee therefore requests the Government to review the draft Law on Trade Unions so as to further amend section 12 of Act No. 2822.

Collective bargaining in the public service. The Committee recalls that for a number of years it has been raising the issue of collective bargaining in the public service covered by the Public Servants Trade Unions Act, No. 4688. The Committee notes that Law No. 5982 amending the Constitution, enacted by the Grand National Assembly on 7 May 2010, entered into force after being approved by the electorate in the referendum held on 12 September 2010. The Committee notes with satisfaction that pursuant to this Law, the following provisions of the Constitution were amended:

–      article 53 further amended so as to add the following paragraph: “public servants and other public employees have the right to conclude collective agreements. The parties may apply to Reconciliation Board if a dispute arises during the process of collective agreement. The decisions of the Reconciliation Board shall be final and have the force of a collective agreement. The scope of and the exceptions to the right of collective agreement, the persons to benefit from and the form, procedure and entry into force of collective agreement and the extension of the provisions of collective agreement, as well as the organization and operating procedures and principles of the Reconciliation Board and other matters shall be laid down in law”;

–      article 53 so as to repeal paragraph 3 which restricted autonomy of the parties in collective bargaining; and

–      article 128(2) so as to provide that “the qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other manners related to their status shall be regulated by law, without prejudice to provisions on collective agreement concerning financial and social rights”.

Regarding Act No. 4688, the Committee notes the Government’s explanation provided to the June 2010 Conference Committee that the constitutional amendment would be followed by the relevant legislative amendments. The Committee notes that the above-noted constitutional amendments appear to address some of the issues it had previously raised in respect of Act No. 4688 and, in particular, with regard to section 28, which limited the scope of negotiations to financial questions, and section 34, which allowed the possibility of modification of collective agreements signed by the parties, by the authorities.

The Committee takes note of the Government’s indication concerning the forthcoming legislative amendment of Act No. 4688 and trusts that this Act will be soon amended so as to ensure that public servants enjoy full collective bargaining rights and not just the right to hold “collective consultative talks” as currently established. The Committee trusts that the amended legislation would further address the following points it had previously raised: (i) if the legislation is to provide for the direct employer to participate in genuine negotiations with trade unions representing public servants not engaged in the administration of the State, the need to ensure that a significant role is left to collective bargaining between the parties; (ii) the need to guarantee clearly within the legislation that negotiations cover not only financial questions but also other conditions of employment; (iii) the need to clearly guarantee that the legislation does not give the authorities, in particular the Council of Ministers, the power to modify or reject collective agreements in the public sector; and (iv) the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that currently provided for (currently 15 days under section 34).

The Committee further once again recalls that an additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employees not engaged in the administration of the State who are excluded from this right and, therefore, from the right to be represented in negotiations (as addressed in the comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)).

The Committee urges the Government to engage in ongoing assistance with the ILO in order to ensure the rapid adoption of the necessary amendments to Acts Nos 2821, 2822 and 4688, and expresses the hope that the final texts will take fully into account its comments above. It requests the Government to transmit the relevant legislative texts or proposed drafts thereof with its next report.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Anti-union discrimination. Articles 1 and 3 of the Convention. 1. Compensation for acts of anti-union discrimination and unfair dismissal. The Committee had noted that section 31(6) of Act No. 2821 concerning compensation in case of dismissal for anti-union reasons stipulated that in cases where the contract of employment is terminated for reasons of union membership or union activities, the provisions of sections 18, 19, 20 and 21 of the Act No. 4857 are applicable; however, the compensation afforded to a worker under section 18 of Act No. 4857 for unfair dismissal, can be inferior to that paid under section 31 of Act No. 2821.

The Committee notes from the Government’s report that compensation paid under section 21 of Act No. 4857 for unfair dismissal in violation of section 18 of this Act (which prescribes that union membership or participation in union activities outside working hours or with the consent of the employer, within working hours, shall not constitute a valid ground for termination of the contract) aims to ensure job security; consequently, the remedy prescribed (between four and eight months’ wages) is designed to compensate for losses prior to the worker’s reinstatement, or if the employer fails to reinstate the worker within one month, compensation consisting of advance notice pay and severance pay. On the other hand, the compensation stipulated in Act No. 2821 is aimed at remedying any act of anti-union discrimination including dismissal. Penal sanctions are envisaged for violation of this provision as well as compensation in case an employer discriminates between workers or dismisses workers on trade union grounds. Thus, the compensation between the two cases cannot be equivalent. The Committee takes note of this information.

2. Updating of the sanctions provided under sections 59(2) (non-reinstatement of trade union officers) and 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821. The Committee requests the Government to indicate in its next report the progress made in respect of the amendment of sections 59(2) and (3) of Act No. 2821 concerning the updating of the fines imposed for acts of anti-union discrimination.

3. In its previous comments, the Committee had requested the Government to ensure that the compensation afforded to a trade union officer who is returning to his/her post and is not reinstated for anti-union reasons has a dissuasive effect. The Committee notes from the Government’s report that the bill to amend Act No. 2821 provides that if an employer fails to reinstate an employee who wishes to return after having served as trade union officer, the employment contract shall be deemed to be terminated and the compensation amount shall be calculated on the basis of the time spent in active employment at the workplace. The basis for the calculation shall be the wage and other rights valid for a comparable worker at the time of termination. The Committee requests the Government to indicate in its next report the progress made with regard to the amendment of section 29 of Act No. 2821.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that an ILO high-level mission visited the country from 28 to 30 April 2008 pursuant to a request by the Conference Committee on the Application of Standards in 2007.

The Committee notes the Government’s reports which contain, inter alia, replies to the comments made by the International Trade Union Confederation (ITUC) in communications dated 10 August 2006 (government communication dated 2 January 2007) and 28 August 2007 (government communications dated 9 January, 28 March and 17 June 2008). It also notes the Government’s reply to the communications by the Confederation of Public Employees Trade Unions (KESK) dated 2 September 2006 and 31 August 2007 (government communication dated 16 February 2007 and 9 January 2008); and by the Confederation of Progressive Trade Unions of Turkey (DISK) in communications dated 9 and 24 April 2007 (government communication of 16 October 2007).

The Committee also notes the comments made by the ITUC in a communication dated 29 August 2008, by KESK in a communication dated 1 September 2008 and by DISK in a communication dated 2 September 2008. The Committee requests the Government to provide its observations on these comments.

Articles 1 and 3 of the Convention. Protection against acts of anti-union  discrimination. In its previous comments, the Committee had noted, in reply to information communicated by workers’ organizations with regard to acts of anti-union discrimination against public employees who were trade union members or officials, various measures adopted in order to introduce dissuasive sanctions against acts of anti-union discrimination. Specifically, the new Turkish Penal Code No. 5237, which came into effect in June 2005, stipulates in section 118 that acts of force or threats to compel someone to join or not join a trade union or union activities, or to resign from a trade union or union office, shall be punished by imprisonment from six to 12 months and that obstruction of trade union activity through force, threats or other unlawful acts, shall be punished by imprisonment from one to three years. Section 135 stipulates that any person found guilty of unlawfully recording personal data, including trade union affiliates, shall be punished by imprisonment from six months to three years.

The Committee also recalls that with regard to the public sector, the Government had indicated that violations of section 18 of Act No. 4688 which prohibit acts of anti-union discrimination by any administrative officer will be punished with disciplinary measures in accordance with the legislation applicable to public personnel (Act No. 657). In its latest report, the Government adds that according to section 18(2) of Act No. 4688 a public employer cannot transfer a union representative or official without a valid reason and without indicating the reasons for the change clearly and precisely. Complaints regarding transfers communicated to the Ministry by trade unions are sent to the related institutions in order to evaluate the issue in accordance with section 18 of the Act and the Prime Ministerial circulars. Furthermore, according to section 18(3), a public employer cannot discriminate on the grounds of membership or non-membership of a trade union. In addition to this, section 18(a) of the Labour Act No. 4857 provides protection against unfair dismissals for trade union membership or participation in trade union activities outside working hours or, with the consent of the employer, within working hours.

While taking due note of these measures, the Committee also notes that the ITUC refers in its 2007 and 2008 comments to this widespread incidence of acts of anti-union discrimination in the public and private sectors, especially transfers of public employees who are trade union members or officers, interference in the activities of public sector trade unions by the Government as employer, and blacklisting and pressure to quit the union in the private sector.

The Committee requests the Government to indicate in its next report the procedure that applies for the examination of complaints of anti-union discrimination in the public sector and to provide statistical data showing progress made in addressing effectively allegations of acts of anti-union discrimination and interference both in the public and private sectors (number of cases brought to the competent bodies, average duration of proceedings and remedies imposed). The Committee trusts that the Government will take all necessary measures to ensure that the provisions of the Convention in this regard are applied both in law and in practice.

Article 4. Free and voluntary collective bargaining. The Committee recalls that for a number of years it has been referring to the dual criteria applied in order to determine the representative status of a union for the purposes of collective bargaining. Under section 12 of Act No. 2822, in order to be allowed to negotiate a collective agreement, a trade union must represent 10 per cent of the workers in a branch and more than half of the employees in a workplace. The Committee had previously taken note of a draft Bill amending Act No. 2822 in order to address this point. The Committee notes from the Government’s report that a Bill to amend Act No. 2822 includes amendments to abolish the 10 per cent threshold required at the sector level for a union to be recognized as a bargaining agent at the enterprise level. The said amendment, which is pending enactment in the Turkish Grand National Assembly, reads as follows:

A trade union affiliated to one of the confederations represented in the Economic and Social Council, active throughout the country in its branch of activity and organized in more than one workplace or establishment, or a trade union which is a member of a workers’ confederation with at least 80,000 members, shall have the power to conclude a collective labour agreement covering the establishment(s) in question if its members account for more than half of the workers employed in the establishment, or each of the establishments, to be covered by the collective labour agreement.

If the trade unions meeting the abovementioned conditions represent more than half of the workers employed in a workplace or establishment in which they are organized, they shall have the power to conclude a collective labour agreement covering the workplace or establishment in question. In the case of enterprise collective labour agreements, the establishments shall be considered as one single unit in the calculation of the absolute majority.

The Committee notes that according to the Government, the social partners in Turkey are in general agreement on the basic parameters of the industrial relations system such as branch-level organizations and enterprise and workplace-level collective bargaining, which has been in place for two-and-a-half decades; the Government expresses the view that after the proposed amendments to the legislation, this system will continue functioning smoothly and in line with ILO standards.

The Committee notes that according to the 2007 comments by the DISK, the draft bill maintains the status quo and does not produce any solution to the problems relative to collective labour relations or make any contribution to the free exercise of trade union rights.

The Committee observes that the text communicated by the Government replaces the 10 per cent requirement found in section 12 of Act No. 2822, with a requirement of affiliation to a major confederation in order for a union to be able to engage in collective bargaining at the workplace level. The Committee notes, however, that this system appears to continue to restrict the level of representation and collective bargaining which should be determined through free and voluntary negotiations. Furthermore, the Committee also observes that the amendment maintains the requirement that unions should represent the majority of workers in a workplace (50 per cent plus one) in order to enter into negotiations with the employer with a view to the conclusion of a collective agreement. The Committee recalls that in such systems, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members; however, this is prevented in this case by the requirement of affiliation to a major confederation. In particular, a representative enterprise union should be able to negotiate even if not affiliated to a confederation.

The Committee expresses the hope that the Government will take the necessary measures to review the draft bill and amend section 12 of Act No. 2822 so that where no union meets the 50 per cent membership criterion, the existing unions at the workplace or enterprise may bargain at least on behalf of their own members regardless of whether they are affiliated to a confederation or not. The Committee requests the Government to indicate in its next report the progress made in this regard, and so as to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4.

Collective bargaining in the public service. In its previous comments the Committee took note of information provided by the Government on the structure of collective negotiations in the public sector and raised certain issues concerning: (i) the need for additional information on the manner in which the direct employer participates in the negotiations alongside the financial authorities as part of the Public Employers Board which is the negotiating agent for the Government under section 3(h) of Act No. 4688; (ii) the need to amend section 28 of Act No. 4688 which limits the scope of negotiations to financial questions; (iii) the need for additional information on the manner in which section 34 of Act No. 4688 is applied in practice and the need to confirm that it is not applied in any way that gives the authorities, in particular the Council of Ministers, power to modify or reject collective agreements (section 34 of Act No. 4688 stipulates that, if an agreement is reached during the negotiation process, the agreed-upon text shall be submitted to the Council of Ministers for the appropriate administrative, executive and legal arrangements to be taken within three months, and the draft bills shall be submitted to the Turkish Grand National Assembly for enactment).

The Committee notes from the Government’s report that: (i) the Public Employers’ Board is composed of representatives of the Prime Minister, the Ministry of Finance, the Treasury, the State Personnel Presidency, as well as the public employers’ organization; (ii) although section 28 of Act No. 4688 limits the collective negotiations to the financial rights of public employees, the subjects other than financial rights have been put on the agenda in four collective negotiations carried out since 2004 and Memoranda of Understanding (MoU) were signed on subjects other than financial rights in 2004, 2006 and 2007; in 2005, a MoU was signed on all the collective negotiation issues including financial rights; (iii) following the signature of MoUs, commissions composed of representatives of trade unions and public employers in equal numbers work for the realization of the subjects agreed upon; the union claims are reflected in the MoU either as claims accepted by the Public Employer Board or as claims to be taken into consideration or evaluated by the Public Employer Board; although the union claims are favourably received by the Public Employer Board, it has been considered that these claims should be dealt with through a draft bill concerning restructuring of the personnel regime in the public service which has been on the agenda for nearly five years and which will apply to around 2.5 million public employees; (iv) the State Personnel Presidency carries out preparatory work for draft bills on the implementation of the issues agreed upon, in contact with the authority concerned if the issue is under the scope of another authority; draft bills prepared as a result of the above are submitted to the Prime Minister’s office; (v) the Tripartite Working Group in a meeting held on 28 December 2006 decided to amend Act No. 4688 in line with the observations of the Committee and work has been launched on this issue. The Ministry of Labour and Social Security has been working on this amendment and a draft bill to amend the preamble and sections 3(a) and 15 of Act No. 4688 have been communicated to the relevant institutions in order to receive their opinions. As a result of collective negotiations in 2007 between the Public Employers’ Board and two of the negotiating agents, the parties reached an agreement on the continuation of work on several subjects, four of which are related to the amendments to be made to Act No. 4688. The Confederation of Public Employees of Turkey (Turkiye Kamu Sen) and the All Municipal and Public Services Workers’ Trade Union (HAK-IS) attended the negotiations. Despite being a negotiating agent, the KESK did not attend.

Furthermore, in a direct request, the Committee had raised the need to amend section 34 of Act No. 4688 so that collective negotiations do not have to be concluded within a short time period of 15 days after which any disagreement is brought to the Reconciliation Committee. The Government indicates that although the time limit of 15 days is sufficient (as in general, five or six sessions have been held in the collective negotiations carried out so far and, if need be, the number of sessions can be increased), an amendment to extend this time limit to one month is under consideration in line with the demands of the social partners.

The Committee appreciates these developments.

The Committee notes the extensive comments made by the KESK and the ITUC on negotiations in the public sector. According to these comments, Act No. 4688 does not refer to the concept of collective bargaining but rather “collective consultative talks” restricted to financial issues; as a result, KESK has not attended the talks since 2007 in protest over the Government’s refusal to hold negotiations instead of consultations, enabling it to decide matters unilaterally. The KESK adds that section 30 of Act No. 4688 (which limits the possibility to engage in negotiations to the unions affiliated to the confederation which has the most members in each sector of activity), violates the Convention because it restricts the freedom to determine the parties to collective bargaining. Finally, the KESK indicates that pressure has been exerted since 2005 on local authorities by the Ministry of the Interior not to implement the 130 or so collective agreements that the KESK affiliated All Municipalities’ and Local Services’ Employees’ Union (TUM BEL SEN) had signed with municipal authorities during the previous 12 years; notwithstanding the fact that the European Court of Human Rights ruled in favour of the union on 21 November 2006, the Ministry has not changed this policy. More generally, it is reported that trade unions are not considered as social partners and the Government fails to consult them on major laws which affect workers’ interests.

In this regard, the Committee takes note of the Government’s reply according to which the “collective consultative talks” provided for in Act No. 4688 allow for negotiations on economic, social and individual rights and in case of disagreement, the Reconciliation Committee undertakes to resolve the disagreement. Representation on the basis of affiliation to a confederation with the most members in the sector of activity is in line with the principle of justice. With regard to the collective agreements signed by municipalities, the Government indicates that according to amended section 146(1) and (2) of Act No. 657, no wage can be paid to public employees and no benefit can be conferred on them other than those provided under the said Act. Collective agreements in the public sector are regulated by sections 3(h) and 29 Act No. 4688 and articles 28 and 53 of the Constitution. As public employees are not entitled to sign collective agreements, the agreements in question have been regarded as unlawful. In notification No. 158 of 6 January 2005, the Ministry of Finance indicated that the status of public employees depended on Acts Nos 657 and 4688, and it was impossible to act outside the scope of these Acts so as to enjoy rights which have not been accorded in line with these Acts. Consequently, the TUM BEL SEN trade union does not have the right to engage in collective bargaining.

The Committee takes note in this regard of the recently rendered final Judgement of the Grand Chamber of the European Court of Human Rights on the issue of collective agreements signed between TUM BEL SEN and municipalities (12 November 2008), in which it was found that:

“The right to bargain collectively with an employer had, in principle, become one of the essential elements of “the right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the [European Convention on Human Rights]. … Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any “lawful restrictions” that may have to be imposed on “members of the administration of the State”, a category to which the applicants in the present case did not, however, belong.”

In light of the above, the Committee once again emphasizes that all public employees who are not engaged in the administration of the State should have the right to engage in free and voluntary collective bargaining, within time limits appropriate to allow for meaningful negotiations. Legislative provisions which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining could be taken into account as a particularly appropriate method to resolve the existing difficulties. The Committee also recalls that the right to join the organization of one’s own choosing includes the free determination of the level of representation (at the sector or institution level even in the absence of affiliation to a confederation). An additional issue to be overcome in order to allow for free and voluntary collective bargaining in the public sector is the recognition of the right to organize to a large number of categories of public employee not engaged in the administration of the State who are excluded from this right and, therefore, from the right to be represented in negotiations (this issue is addressed in a request sent directly to the Government under Convention No. 87).

The Committee once again requests the Government to indicate in its next report the measures taken or contemplated, including the public service reform, with a view to bringing Act No. 4688 and its application in line with the Convention on the following points: (i) the need for the direct employer to participate in genuine negotiations with trade unions representing public servants not engaged in the administration of the State and for a significant role to be left to collective bargaining between the parties; (ii) the need to guarantee clearly within the legislation that negotiations cover not only financial questions but also other conditions of employment; (iii) the need to clearly guarantee that the legislation does not give the authorities, in particular the Council of Ministers, the power to modify or reject collective agreements in the public sector; (iv) the need for the parties to be able to hold full and meaningful negotiations over a period of time longer than that currently provided for.

The Committee takes note of the Government’s indication concerning the forthcoming legislative amendment of Act No. 4688 and trusts that all the issues raised above will be taken into account within this framework. The Committee once again requests the Government to transmit the current text amending Act No. 4688 and to indicate in its next report the progress made and a specific timetable for the adoption of the amendments to Act No. 4688.

The Committee invites the Government to avail itself of further technical assistance by the Office, if it so wishes.

The Committee is raising a number of other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report.

Articles 1 and 3 of the Convention. Anti-union discrimination. In its previous comments, the Committee had noted that both the Unions Act No. 2821 and the Labour Act No. 4857 provided for protection against acts of anti-union discrimination. At the same time, the Committee had noted that questions arise as to whether section 31 of Act No. 2821 concerning compensation was applicable in all cases of dismissals for anti-union reasons. The Committee notes that, in its report, the Government confirms that section 31 is applicable in all cases of dismissals for anti-union reasons. However, the Committee notes that the Government indicates that section 31(6) stipulated that, in cases where the contract of employment is terminated for reasons of union membership or union activities, provisions of sections 18, 19, 20 and 21 of the Labour Act are applicable:

–      given that the compensation afforded to a worker dismissed on anti-union grounds, fulfilling the conditions set out in section 18 of Act No. 4857, can be inferior (even if accrued wages are paid) to section 31 of Act No. 2821, the Committee requests the Government to ensure that compensation is equivalent in value in both Acts;

–      given that the sanctions provided under section 59(2) (non-reinstatement of trade union officer) and section 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 have apparently not been reviewed for a long time and are clearly inferior to the sanctions provided under Act No. 4857, the Committee requests the Government to revise the sanctions provided under sections 59(2) and (3) of Act No. 2821 and to align them with the sanctions provided by Act No. 4857 so that they constitute sufficiently dissuasive sanctions.

The Committee requests the Government to keep it informed on these questions.

The Committee notes that the draft Bill amending section 29 of Act No. 2821 does not specify the amount of compensation afforded to a trade union officer when the employer refuses to reinstate him for anti-union reasons upon the cessation of his mandate, resulting in the termination of the trade union officer’s contract. The compensation afforded by section 29 can be in certain cases inferior to the minimum provided under section 31. The Committee requests the Government to ensure that the compensation afforded to a trade union officer who is not reinstated for anti-union reasons has a dissuasive effect and is not inferior to the minimum provided under the general provision on anti-union discrimination compensation of section 31.

Article 4. Collective bargaining. In its previous comments, the Committee had noted that, under section 34 of Act No. 4688 on public employees’ trade unions, collective consultations shall be concluded, at the latest, within 15 days. If the parties have reached an agreement within this time limit, an agreed text signed by them shall be submitted to the Board of Ministers for any appropriate measures, including legislative measures. If the parties have not reached an agreement within the required time limit, under section 35, one of them can refer the matter to the Reconciliation Committee. The Reconciliation Committee takes a decision which, if accepted by both parties, will become the agreed text to be submitted to the Board of Ministers. If the decision is not accepted by the parties, all the points of agreement, as well as those unresolved, shall be submitted to the Government in the form of an official report signed by the parties.

While the specification of a time limit within which the negotiations should be concluded is not in itself incompatible with the Convention, the Committee considers that this time limit should be reasonable so as to ensure that the parties are in a position to hold full and meaningful negotiations. The time limit of 15 days set out in section 34 seems rather short to achieve such a purpose. The Committee takes note of the Government’s indication that these comments will be taken into consideration when Act No. 4688 is amended in the future. The Committee requests once again the Government to take the necessary measures to amend this provision in order to enable the parties to negotiate for a longer period.

In its previous comments, the Committee requested the Government to provide practical information on the outcome of the negotiation process and, in particular, on the number of negotiations which have resulted in agreed texts and those which have resulted in a report to the Board of Ministers following the parties’ refusal of the decision of the Reconciliation Committee. In addition, the Committee requested the Government to specify whether the agreed texts automatically result in measures being taken by the Board of Ministers and, if the latter has refused to take measures, or has modified collective agreements, the number of such instances. The Committee notes the Government’s indications that four negotiations were concluded up to 31 December 2005. In 2004, negotiations resulted in agreement on all issues apart from salaries and, in 2005, agreement was reached on all issues and the Council of Ministers acted upon the agreement and carried it into effect. The Committee takes note of this information.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report.

The Committee takes note of the observations by the following workers organizations: the Confederation of Turkish Public Employees Union (TURKIYE-KAMU-SEN) (communication dated 9 February 2006), the Confederation of Progressive Trade Unions of Turkey (DISK) (communication dated 9 June 2006), and the International Confederation of Free Trade Unions (ICFTU) (communications dated 12 July 2006 and 10 August 2006). The Committee notes the observations of the Government regarding the communication of the TURKIYE-KAMU-SEN, and regarding the communication of the DISK.

The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2303 (see 342nd Report, June 2006) concerning, inter alia, the amendments to the Trade Unions Act No. 2821 and the Collective Agreements, Strikes and Lockouts Act No. 2822.

In its previous comments, the Committee examined the conformity with the Convention of the following laws: Act No. 4688 on public employees’ trade unions, the Unions Act No. 2821, and the Collective Agreements, Strikes and Lockout Act No. 2822. The Committee noted that certain sections of Act No. 4688 have been amended by Act No. 5198 and a draft comprising further modifications to Act No. 4688 is under preparation. With respect to Acts Nos. 2821 and 2822, the Committee noted that two draft bills have been prepared. Moreover, the Committee notes the adoption of a new Associations Act No. 5253, enacted in 2004, and replacing Act. No. 2908, and a new Penal Code. The Committee will examine these two texts once it has at its disposal the translation. The Committee requests once again the Government to transmit the second text amending Act No. 4688.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that its previous comments related to section 18 of Act No. 4688; while this provision generally provides for a prohibition of acts of anti-union discrimination, this guarantee is not accompanied by sufficiently effective and dissuasive sanctions. The Committee notes that, in its 2005 observations, the ICFTU points to a number of instances in which public employees, as trade union members or officers, suffered various acts of anti-union discrimination. The Committee also notes that the Committee on Freedom of Association has examined, in Case No. 2200, allegations of anti-union discrimination in the public service (see 334th Report, paragraphs 722-762, and 338th Report, paragraphs 319-327). In its report, the Government indicates that cases of violations of section 18 of Act No. 4688 by any administrative officer will be punished with disciplinary measures in accordance with the legislation applicable to public personnel. Moreover, the Government indicates that the new Turkish Penal Code No. 5237, which came into effect in June 2005, introduced new provisions for protection against acts of anti-union discrimination. Section 118 prohibits acts of anti-union discrimination and provides dissuasive sanctions: it stipulates that any person who uses force or threats with the aim of compelling a person to join a trade union or not to join, or to participate in union activities or not to participate in them, to resign from a trade union or from his/her position in the union management, shall be punished with imprisonment from six months to two years. Furthermore, section 118 states that a judgement of imprisonment for one year to three years shall be given in cases where a trade union’s activities are obstructed by using force, threats or other unlawful acts. Section 135 stipulates that any person found guilty of recording personal data of a person unlawfully, including his/her trade union attachments, shall be punished with imprisonment from six months to three years. The Committee takes note of this information with interest.

With regards to the comment of the TURKIYE-KAMU-SEN concerning general and specific violations of section 18 of Act No. 4688 (as amended by Act No. 5198), the Government observed in its comments to the TURKIYE-KAMU-SEN’s communication that this provision provides sufficient guarantees to union representatives and union officials. It contains a legal obligation, the breach of which can be brought to the court. Any union representatives or official transferred to other workplaces without a valid reason has the right to take legal action. Without more information, the Government is unable to comment on the merits of the 62 cases mentioned in the TURKIYE-KAMU-SEN’s communication, but insists that it attaches great importance to ensuring that administrative practice is fully in line with the law. The Committee requests the Government to ensure that the provisions of the Convention are applied in law and in practice and requests the Government to keep it informed in future reports of any further measures taken or envisaged to ensure adequate protection against anti-union discrimination.

Article 4. Free and voluntary collective bargaining. 1. With respect to the dual criteria to determine the representative status of a union for the purpose of collective bargaining set out in section 12 of Act No. 2822 (under which, in order to be allowed to negotiate a collective agreement, a trade union must represent 10 per cent of the workers in a branch and more than half of the employees in a workplace), the Committee expressed the firm hope in its previous comments (see the 2002 observation), that the Government would take the necessary measures to ensure the conformity of the draft Bill amending Act No. 2822 with the requirements of the Convention. The Committee takes note of the Government’s indication that the draft Bill of Act No. 2822 contains two alternative proposals for determining the representative status of unions. On the one hand, the amendment to section 12 stipulates that a majority union in a given workplace shall be recognized as the competent union for collective bargaining if the union concerned is affiliated to one of the three most representative trade union confederations. On the other hand, the alternative amendment proposal envisages the gradual elimination of the 10 per cent representation requirement in the branch of activity concerned without any condition for affiliation. The Committee also takes note of the DISK communication, dated 9 June 2006, in which it states that it has received from the Government the draft Bills amending Acts Nos. 2821 and 2822, as well as the alternative text of 10 per cent threshold. The DISK has examined these drafts and is of the opinion that the draft Bill amending Act No. 2822 and the alternative text of 10 per cent threshold do not provide a solution to any problems in collective labour relations and do not contribute to free use of union rights. The Committee recalls that the dual numerical requirement in section 12 of Act No. 2822 are not in accordance with the principle of voluntary collective bargaining. Thus, under the current legislation, unions representing the majority of workers in a workplace but not having membership strength of more than 50 per cent of the workers cannot enter into collective bargaining with the employer. The Committee considers that, at the enterprise level, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions, at least on behalf of their own members. Similarly, the Committee notes that a trade union meeting the 50 per cent criterion cannot bargain if it does not represent at least 10 per cent of employees engaged in a given branch of activity. The Committee expresses the hope that the Government will take the necessary measures to eliminate the dual requirement in the national legislation in order to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4, and requests it to transmit all information relevant to the progress made in amending section 12 of Act No. 2822.

In addition, in its previous comments, the Committee noted that, according to comments submitted directly by the DISK, the Ministry of Labour and Social Security did not mention this organization in its statistics published on 17 July 2003, although it had reached the 10 per cent requirement in its branch of activity, and thus prevented the organization from participating in the collective bargaining process. Similar representations have been made by the DISK concerning some of its affiliates. The Committee noted that, in its reply, the Government referred only to the statistics published in respect of one of the DISK’s affiliates (Sosyal-IŞ), and which were eventually rectified by the Ministry of Labour and Social Security as a result of an objection raised by the union concerned before the courts. The Government indicates in its report that published statistics are based on union memberships reported by unions and that the unions concerned have the right to object to these statistics in the labour court of Ankara. The Government further indicates that, as confederations are not bargaining agents, there is no requirement for the DISK to represent 10 per cent of workers in a branch of activity. The Committee takes note of this information.

In a communication by the DISK, transmitted by the ICFTU on 30 August 2005, the DISK mentions that, as one of its affiliated trade unions, (DEV-SAGLIK IŞ – health workers’ union) did not reach the 10 per cent sector threshold, it had to sign a protocol and not a collective agreement. The Ministry has asked for the annulment of this protocol on the basis that the DEV-SAGLIK IŞ had not exceeded the 10 per cent threshold. In response, the Government refers to the statistics published on the DEV-SAGLIK IŞ. Recalling that, under Article 4 governments should take measures appropriate to national conditions to encourage and promote the full development and utilization of voluntary negotiation by means of collective bargaining, the Committee requests the Government to ensure that, in the absence of a representative union, unions are able to bargain on behalf of their own members and to indicate the measures taken or envisaged to amend the relevant legislation in this respect.

2. Collective bargaining in the public service. In its previous comments (see 2002 observation), the Committee had requested the Government to provide details on the role and functions of the Supreme Administrative Committee, the Institution Administrative Committees and the Public Employers Board during collective bargaining. The Committee noted that the Government had not addressed the issue of the scope of the negotiations but had given some explanations about the role and function of the Supreme Administrative Committee and the Institution Administrative Committees. In its latest report, the Government gives indications about the Public Employers Board. The Committee notes that the parties to the negotiation are, on the one hand, the Public Employers Board and, on the other, unions for each branch of service and their confederations. The Public Employers Board is the negotiating agent under section 3(h) of Act No. 4688 as it defines the term “collective negotiation”, for the purposes of the Act, as the negotiation between the Public Employers Board and the competent public servants’ trade unions and their higher organizations. The Public Employers Board and the unions and confederations concerned meet on 15 August of each year (section 32) and collective negotiation starts when the Public Employers Board presents the relevant information and documents on the matters within the scope of collective negotiation, taking into account also the proposals made by the Supreme Administrative Board (section 33). Under the provisions of section 33, parties to the negotiation present their proposals which shall be the basis of the negotiation and shall form its agenda. Principles governing the negotiation shall be determined by the parties. In accordance with the provisions of article 53 of the Constitution and the provisions of section 34 of the said Act, when agreement has been reached by the abovementioned parties, a text of the agreement is submitted to the Council of Ministers so that the appropriate administrative or legal arrangements can be made. Scope of the negotiations includes the coefficient and indicators, salary and wages, any kind of pay increases and compensations, overtime pay, travel allowances, bonuses, house allowance, birth, death and family allowances, medical help and funeral expenses, food and clothing allowances to be applied to the public servants, as well as other allowances of this nature that increase effectiveness and productivity (section 28). In its latest comments, the Committee noted that the Public Employers Board is composed of representatives of the Prime Minister, the Ministry of Finances and of the Treasury, as well as of the public employers’ organization. The Committee recalls that legislative provisions which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 263). The Committee once again requests the Government to explain the manner in which the direct employer participates in the negotiations alongside the financial authorities.

Further, the Committee recalls that measures taken unilaterally by the authorities to restrict the scope of the negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining, are a particularly appropriate method to resolve these difficulties (see General Survey, op. cit., paragraph 250). While noting the Government’s indications that discussions at the level of the Supreme Administrative Committee and the Institutions Administrative Committees relate to conditions of work and the rights and duties of public employees, the Committee underlined that section 28 quite clearly limits the scope of the negotiations to financial issues. It therefore requests the Government to take the necessary measures to amend section 28 in a manner compatible with Article 4 of the Convention.

3. Comments of the TURKIYE-KAMU-SEN. With respect to the formalities required for the approval of the collective agreement, the Committee takes note of the observations of the Government dated 19 July 2006, regarding the communication of the TURKIYE-KAMU-SEN, dated 9 February 2006. In its communication, the TURKIYE-KAMU-SEN states that there are obstacles to union activities as section 34 of Act No. 4688 stipulates that, if an agreement is reached during the negotiation process, the agreed text shall be submitted to the Council of Ministers for the appropriate administrative, executive and legal arrangements to be taken within three months and the draft bills shall be submitted to the Turkish Grand National Assembly for enactment. According to the TURKIYE-KAMU-SEN, this amounts to a restriction of the efficient accession of both unions and public employees in the collective bargaining process and they ask the Government to provide for more objective and efficient regulations from the Ministry of Labour and Social Security in order to clarify the contributions of the unions and the public employees in the collective bargaining. The Government does not share this view and insists that there is no such restriction emanating from the said provision, either on the legal obligations or on the involvement of the unions in the negotiating process. The Committee recalls that, while the discretionary power of the authorities to approve collective agreements is by its very spirit contrary to the principle of voluntary bargaining, legislation stipulating that collective agreements must be submitted for approval to the administrative authority, the labour authorities or the labour tribunal before coming into force is compatible with the Convention provided that the national legislation merely stipulates that approval may be refused if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down in the general labour legislation (see General Survey, op. cit. paragraphs 251-252). The Committee requests the Government to inform it of the manner in which section 34 is applied in practice and to ensure that it is not applied in any way that gives the authorities discretionary power to approve collective agreements.

Article 6. Public servants engaged in the administration of the State. In its previous comments, the Committee noted that sections 3(a) and 15 of Act No. 4688 deny several categories of public servants the right to organize, and consequently the right to collective bargaining. The definition of a public employee in section 3(a) refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees (such as lawyers, civilian civil servants at the Ministry of National Defence and the Turkish armed forces, employees at penal institutions, etc.) who are prohibited from joining trade unions. The Committee requested the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than those engaged in the administration of the State, are fully ensured the right to collective bargaining in accordance with the Convention. In its previous comments, the Committee noted with interest the Government’s indication that the draft Bill amending Act No. 4688 would remove the reference to the “trial period” and that the definition of “public employees” would be revised so as to include, in particular, special security personnel. Nevertheless, from the information provided by the Government, it seemed that public employees holding positions of trust would remain outside the scope of Act No. 4688. The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). The Committee expresses once again the firm hope that the revision of sections 3(a) and 15 of Act No. 4688 will take into account the comments made above and requests the Government to submit with its next report the text of the relevant amendments.

Comments of the ICFTU. The Committee notes the ICFTU’s comments concerning several issues already raised in previous observations. The observations underline, however, violations of the Convention, such as bargaining obstructions in the bakery sector leaving 2,500 bakers without protection; anti-union discrimination (for example, in 2005, 520 workers in the public sector have been transferred for no other reason than their trade union membership and 164 members of the DISK-affiliated United Metal Workers’ Union were dismissed and 275 members were forced to resign); anti-union harassment; police violence against trade unionists during a peaceful demonstration on 26 November 2005 (17 injured, ten arrested); police violence against workers, their wives and children and arrests of trade unionists during a protest action on 20 July 2005; pressure on local authorities not to implement 130 or so collective agreements and order to workers to pay back their wages obtained as a result of a collective agreement.  The Committee requests the Government to transmit its observations on these latest comments of the ICFTU.

The Committee expresses once again the hope that, in the forthcoming legislative reforms concerning collective bargaining, the comments made above will be fully taken into account. The Committee once again recalls that ILO technical assistance is available in this regard should the Government so desire.

The Committee is raising a number of other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the comments of the KESK affiliate Union of All Municipality and Local Administrative Services Employees (TÜM BEL SEN), dated 2 February 2005, as well as the Government’s response thereto. It also notes the comments made by the Confederation of Public Employees’ Trade Unions (KESK) and the Confederation of Progressive Trade Unions of Turkey (DISK) which were transmitted in a communication by the International Confederation of Free Trade Unions (ICFTU) dated 30 August 2005, as well as the Government’s response thereto. The Committee finally takes note of the Government’s observations on the comments previously made by the Confederation of Public Employees of Turkey (TÜRKIYE KAMU-SEN). The Committee notes that all these communications concern issues related to the right of public servants not engaged in the administration of the State to take part in collective bargaining and will be examined by the Committee at its next session in the framework of the regular reporting cycle, along with the information requested from the Government in the Committee’s previous observation and direct request [see 2004 observation, 75th Session and 2004 direct request, 75th Session].

The Committee finally takes note of the comments made by YAPI-YOL SEN dated 1 September 2005 with regard to the right to organize of public employees, as well as the Government’s response thereto. These comments, which concern issues related to both Conventions Nos. 87 and 98, will be treated under Convention No. 87.

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

Articles 1 and 3 of the Convention. With reference to its observation, the Committee notes the comments made by the ICFTU to the effect that while Act No. 2821 and Act No. 4857 provide for rules under which freedom of association is safeguarded, it is generally considered that these Acts do not provide sufficient protection of trade union leaders against transfer and dismissal. There is no obligation to reinstate trade unionists discriminated against (with the exception of shop stewards). Further, the fines to be imposed in case of anti-union discrimination are very small and not dissuasive enough. With reference to Act No. 4857, in particular, the ICFTU underlines that while trade union membership and participation in trade union activities cannot be considered as a just motive for dismissing an employee, the minimum number of employees at a given workplace has been increased, from ten to 30, for the application of the law. It thus gives employers the possibility of avoiding the application of Act No. 4857 by employing fewer than 30 workers at a plant or by employing workers on fixed-term contracts. The ICFTU points out that as of 2000, 95 per cent of the workplaces in Turkey employed less than 30 employees.

The Committee notes that the Government refers in its report to section 5 of Act No. 4857 under which any kind of discrimination on the basis of language, race, sex, religion, political thought or other similar grounds is illegal. In case of infringement by an employer of this provision, a worker can claim compensation. The Government adds that if the discrimination is based on anti-union grounds, the worker can also claim compensation, which cannot be inferior to his annual salary, in accordance with section 31 of Act No. 2821. Further, any employer infringing section 5 will be subject to a fine of 50 million TL for each of the workers concerned. The Government confirms that under Act No. 4857 a valid reason must be given for the termination of the contract of employment and that participation in trade union activities, in particular as a union representative, cannot be considered as such a valid reason.

The Committee notes that both Act No. 2821 and Act No. 4857 provide for protection against acts of anti-union discrimination. At the same time, the Committee notes that questions arise as to whether section 31 of Act No. 2821 is applicable in all cases of dismissals for anti-union reasons. The Committee requests therefore the Government to provide clarifications in respect of the following instances:

-  The dismissal on anti-union grounds of a worker fulfilling the conditions set out in section 18 of Act No. 4857; the Committee notes in this respect that the compensation afforded to the worker can be inferior (even if accrued wages are paid) to that provided under section 31 of Act No. 2821;

-  An employer’s refusal to reinstate a trade union officer upon the cessation of his mandate for anti-union reasons and the resulting termination of the trade union officer’s contract; the Committee notes that the applicable provision, section 29 of Act No. 2821, as amended under the draft bill, does not specify the amount of compensation which can therefore be in certain cases inferior to the minimum provided under section 31.

With respect to sanctions applicable to anti-union discrimination, the Committee notes the ICFTU’s observations on the insufficient protection against anti-union discrimination. The Committee notes that in case of anti-union discrimination upon dismissal or in the course of employment, in violation of section 31, Act No. 2821 does not provide for any sanction. The same holds true for the prohibition of dismissal on anti-union grounds set out in section 18 of Act No. 4857. Recalling that legal standards prohibiting anti-union discrimination are inadequate if they are not accompanied with sufficiently dissuasive sanctions to ensure their application, the Committee requests the Government to take the necessary measures so that the prohibitions set out in the two provisions mentioned above are accompanied with dissuasive sanctions. Finally, the Committee notes that the amount of the sanctions provided under section 59(2) (non-reinstatement of trade union officer) and section 59(3) (anti-union discrimination at the time of recruitment) of Act No. 2821 have apparently not been reviewed for a long time and are thus clearly inferior to the sanctions provided under Act No. 4857. The Committee therefore requests the Government to revise the amounts of the sanction provided under sections 59(2) and (3) of Act No. 2821 so that they constitute sufficiently dissuasive sanctions.

The Committee requests the Government to keep it informed on the points raised above. It further requests the Government to provide copies, along with its next report, of any judicial decisions granting compensation for acts of anti-union discrimination and applying the corresponding sanctions to employers.

Article 4. The Committee notes that, according to KESK, Act No. 4688 is based on consultative talks that result in a non-binding text. The Committee notes also the comments made by TURKIYE KAMU-SEN in this respect. The Committee notes that under section 34, collective consultative talks shall be concluded, at the latest, within 15 days. If the parties have reached an agreement within this time limit, an agreed text signed by them shall be submitted to the Board of Ministers for any appropriate measures, including legislative measures. If the parties have not reached an agreement within the required time limit, under section 35, one of them can refer the matter to the Reconciliation Committee. The Reconciliation Committee takes a decision which, if accepted by both parties, will become the agreed text to be submitted to the Board of Ministers. If the decision is not accepted by the parties, all the points of agreement, as well as those unresolved, shall be submitted to the Government in the form of an official report signed by the parties.

While the specification of a time limit within which the negotiations should be concluded is not in itself incompatible with the Convention, the Committee considers that this time limit should be reasonable so as to ensure that the parties are in a position to hold full and meaningful negotiations. The time limit of 15 days set out in section 34 seems rather short to achieve such a purpose. The Committee therefore requests the Government to take the necessary measures to amend this provision in order to enable the parties to negotiate for a longer period. Finally, the Committee requests the Government to provide practical information on the outcome of the negotiation process and in particular, on the number of negotiations, which have resulted in agreed texts and those which have resulted in a report to the Board of Ministers following the parties’ refusal of the decision of the Reconciliation Committee. In addition, the Committee requests the Government to specify whether the agreed texts automatically result in measures being taken by the Board of Ministers and, if the latter has refused to take measures, the number of such instances.

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

The Committee takes note of the information provided in the report communicated by the Government as well as the observations, attached to the report, made by the following organizations: the Confederation of Progressive Trade Unions of Turkey (DISK), the Confederation of Public Employees of Turkey (TURKIYE KAMU-SEN), the Confederation of Turkish Trade Unions (TURK-IS), and the Turkish Confederation of Employers’ Associations (TISK). The Committee also notes the responses of the Government to the observations made by DISK, by the International Confederation of Free Trade Unions (ICFTU) and by the Confederation of Public Employees Trade Unions (KESK). The Committee requests the Government to transmit its comments on the observations sent by the ICFTU and TURKIYE KAMU-SEN on the collective bargaining process both in the public and the private sectors, in their communications dated 15 December 2003 and 11 November 2004, respectively.

In its previous comments, the Committee examined the conformity with the Convention of the following laws: Act No. 4688 on public employees’ trade unions, the Unions Act No. 2821, the collective labour agreements, strike and lockout Act No. 2822 and Act No. 3218 imposing, under provisional section 1, compulsory arbitration in export processing zones. The Committee notes that certain sections of Act No. 4688 have been amended by Act No. 5198 and a draft comprising further modifications to Act No. 4688 is under preparation. With respect to Acts Nos. 2821 and 2822, the Committee notes that two draft bills have been prepared. Regarding Act No. 3218, the Committee notes with satisfaction that Act No. 4771 has repealed provisional section 1. Finally, the Committee takes note of the entry into force of the New Labour Act No. 4857. The Committee requests the Government to transmit the second text amending Act No. 4688 with its next report as well as an updated version of the texts amending Acts Nos. 2821 and 2822.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that its previous comments related to section 18 of Act No. 4688; while this provision generally provides for a prohibition of acts of anti-union discrimination, this guarantee is not accompanied by sufficiently effective and dissuasive sanctions. The Committee notes that in its most recent observations, the ICFTU points out to a number of instances in which public employees, as trade union members or officers, suffered various acts of anti-union discrimination. The Committee also notes that the Committee on Freedom of Association has recently examined, in Case No. 2200, allegations of anti-union discrimination in the public service (see 330th Report, paragraphs 1077-1105, and 334th Report, paragraphs 722-762). In its report, the Government indicates that, it is currently considering the introduction of sanctions to ensure effective prohibition of anti-union discrimination. Recalling that legal standards are inadequate if they are not coupled, notably, with sufficiently dissuasive sanctions to ensure their application, the Committee requests the Government to submit with its next report the text of any amendment introducing sufficiently dissuasive sanctions to ensure the effectiveness of the prohibition set out in section 18.

Article 4. Free and voluntary collective bargaining. 1. With respect to the dual criteria to determine the representative status of a union for the purpose of collective bargaining set out in section 12 of Act No. 2822, in its previous comments (see the 2002 observation), the Committee expressed the firm hope that the Government would take the necessary measures to ensure the conformity of the draft Bill amending Act No. 2822 with the requirements of the Convention. The Committee notes that in its report, the Government points out that the draft bill reduces one of the criteria: the requirement that a union represents at least 10 per cent of the employees engaged in a given branch of activity will now be lessened to 5 per cent. The Committee takes due note of this amendment but notes at the same time that the other requirement - that the union should represent over half of the workers employed in the workplace - is maintained, as is the combination of the two criteria. The Committee must therefore once again point out that the numerical requirements in section 12 of Act No. 2822, even as amended, are not in accordance with the principle of voluntary collective bargaining. Thus, unions representing the majority of workers in a workplace but not having membership strength of more than 50 per cent of the workers cannot enter into collective bargaining with the employer. The Committee considers that at the enterprise level, if no single union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the existing unions, at least on behalf of their own members. Similarly, the Committee notes that a trade union meeting the 50 per cent criterion cannot bargain if it does not represent at least 5 per cent under the draft bill (10 per cent under the current legislation) of employees engaged in a given branch of activity. The Committee expresses the hope that the Government will take the necessary measures to remove the two numerical requirements from the national legislation in order to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4. In addition, the Committee notes that according to comments submitted directly by DISK, the Ministry of Labour and Social Security did not mention this organization in its statistics published on 17 July 2003, although it had reached the 10 per cent requirement in its branch of activity, and thus prevented the organization from participating in the collective bargaining process. In its comments attached to the Government’s report, DISK makes similar representations concerning some of its affiliates. The Committee notes that in its reply the Government refers only to the statistics published in respect of one of DISK’s affiliates (Sosyal-IŞ), and which were eventually rectified by the Ministry of Labour and Social Security as a result of an objection raised by the union concerned before the courts. The Committee requests the Government to transmit information in respect of DISK and the other cases raised in its comments attached to the report, so as to enable the Committee to draw its conclusions on the matter.

2. With respect to collective bargaining in the public service, in its previous comments (see 2002 observation), the Committee had requested the Government to provide details on the role and functions of the Supreme Administrative Committee, the Institution Administrative Committees and the Public Employers’ Committee during collective bargaining. The Committee had pointed out also that the scope of conditions of employment to be negotiated should not be restricted to the economic conditions mentioned in section 28 of the Act but should also cover all questions concerning conditions of work. The Committee notes that the Government has not addressed the issue of the scope of the negotiations. The Committee notes that the Government has given some explanations about the role and function of the Supreme Administrative Committee and the Institution Administrative Committees but not about the Public Employers’ Committee. Thus, the first two committees have been established with a view to enable, both within a particular institution or at the inter-institutional level, public employees to voice their opinion on their conditions of work and the application of the relevant laws and regulations. The Supreme Administrative Committee submits proposals to the Public Employers’ Committee in relation to conditions of work, and rights and duties of public employees, which form the basis of collective negotiation. The Supreme Administrative Committee monitors the application of the agreed text, which will result from the negotiations. The Government underlines that meetings were held with social partners notably on the functioning of the committees. Both the representatives of the confederations and the public employers suggested that the Supreme Administrative Committee should be abolished, as it has no real function.

The Committee takes note of the explanation provided by the Government regarding both the Supreme Administrative Committee and the Institution Administrative Committees. It notes that the parties to the negotiation are, on the one hand, the Public Employers’ Committee, and on the other, unions and the confederations to which they are affiliated. The Committee notes that the Public Employers’ Committee is composed of representatives of the Prime Minister, the Ministry of Finances and of the Treasury, as well as of the public employers’ organization. The Committee recalls that legislative provisions which give the financial authorities the right to participate in collective bargaining alongside the direct employer are compatible with the Convention, provided they leave a significant role to collective bargaining (see the General Survey on freedom of association and collective bargaining, 1994, paragraph 263). The Committee therefore once again requests the Government to explain the role and function of the Public Employers’ Committee and, in particular, to explain the manner in which the direct employer participates in the negotiations alongside the financial authorities.

Further, the Committee recalls that measures taken unilaterally by the authorities to restrict the scope of the negotiable issues are often incompatible with the Convention; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see General Survey, op. cit., paragraph 250). While noting the Government’s indications that discussions at the level of the Supreme Administrative Committee and the Institutions Administrative Committees relate to conditions of work and the rights and duties of public employees, the Committee underlines that section 28 quite clearly limits the scope of the negotiations to financial issues. It therefore requests the Government to take the necessary measures to amend section 28 in a manner compatible with Article 4.

Article 6. Public servants engaged in the administration of the State. In its previous comments, the Committee noted that sections 3(a) and 15 of the Public Employees’ Trade Unions Act No. 4688 deny several categories of public servants the right to organize, and consequently the right to collective bargaining. The definition of a public employee in section 3(a) refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees (such as lawyers, civilian civil servants at the Ministry of National Defence and the Turkish armed forces, employees at penal institutions, etc.) who are prohibited from joining trade unions. The Committee requested the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than those engaged in the administration of the State, are fully ensured the right to collective bargaining in accordance with the Convention. The Committee notes with interest that the Government indicates that the draft bill amending Act No. 4688 will remove the reference to the "trial period" and that the definition of "public employees" will be revised so as to include in particular, special security personnel. Nevertheless, it seems that public employees holding positions of trust will remain outside the scope of Act No. 4688. The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff) who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey, op. cit., paragraph 200). The Committee expresses the firm hope that the revision of sections 3(a) and 15 of Act No. 4688 will take into account the comments made above and requests the Government to submit with its next report the text of the relevant amendments.

The Committee is raising a number of other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s reply to the comments dated 18 September 2002 made by the International Confederation of Free Trade Unions (ICFTU) and to the comments dated 3 June 2003 made by the Confederation of Progressive Trade Unions of Turkey (DISK). DISK refers to issues pending before the Committee, namely the process under which possible amendments to the Trade Union Act (No. 2821) and the Collective Labour Agreements, Strike and Lockout Act (No. 2822) are considered, and in particular, the need to amend section 12 of Act No. 2822 (under which, in order to be allowed to negotiate a collective agreement, a trade union must represent 10 per cent of the workers in a branch and more than half of the employees in a workplace). The Committee notes that the Government replies that a draft study to modify some sections of the abovementioned laws has been concluded by academicians and has been sent to the social partners for observations before the elaboration of a draft Bill.

The Committee will pursue next year, in the framework of the regular reporting cycle, the examination of the issues raised in its last observation, in light of the comments made by the ICFTU and DISK, as well as the Government’s replies thereon. The Committee will also examine the new Labour Law No. 4857 adopted on 27 May 2003.

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

The Committee notes the observations of the Confederation of Progressive Trade Unions of Turkey, the Turkish Confederation of Employers’ Associations and the International Confederation of Free Trade Unions (ICFTU). The Committee also notes the adoption of the Public Employees’ Trade Unions Act No. 4688.

Articles 1 and 3 of the Convention. The Committee notes that while section 18 of the Public Employees’ Trade Unions Act No. 4688 generally provides for a prohibition of acts of anti-union discrimination, this guarantee is not accompanied by sufficiently effective and dissuasive sanctions. In its last report, the Government had indicated, regarding the protection of workers against anti-union discrimination, that a new draft Bill amending Labour Act No. 1475 and Trade Unions Act No. 2821 has been prepared by a commission of experts appointed by the social partners and the Minister of Labour and submitted to the Council of Ministers. The Committee requests the Government to provide a copy of the mentioned draft Bill and to indicate whether the new draft Bill covers public servants not engaged in the administration of the State as concerns the protection against anti-union discrimination.

Article 4. In its previous observation, the Committee noted that the Government had initiated work to amend Acts Nos. 2821 and 2822, and that it had proposed to lift the 10 per cent membership requirement in a given branch of activity for collective bargaining purposes. The Government had indicated that the work on the draft Bills amending these Acts had not been finalized due to continuing consultations with social partners in order to reach a consensus on the questions of dual criteria contained in the legislation for determining the representative status of trade unions for collective bargaining purposes. The Committee also considers that at the enterprise level, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the unions, at least on behalf of their own members. The Committee expresses the firm hope that the Government will take the necessary measures to ensure the conformity of the draft Bills with the requirements of the Convention and once again requests the Government to provide a copy of the draft Bills amending Acts Nos. 2821 and 2822.

In its previous comments, the Committee had also requested the Government to take the necessary measures to ensure that all workers in export processing zones (EPZs) would enjoy the right to negotiate freely their terms and conditions of employment. The Government had indicated that, regarding the issue of compulsory arbitration in EPZs, the proposed amendment in this regard had yet to be enacted. The Committee notes that, in its report on Convention No. 87, the Government states that an Act adopted by the Parliament on 3 August 2002 (not sent by the Government) has repealed Act No. 3218 on EPZs. The Committee therefore requests the Government to send a copy of the new legislation.

Article 6. The Committee notes from sections 3(a) and 15 of the Public Employees’ Trade Unions Act No. 4688 that several categories of public servants are denied the right to organize, and therefore to collective bargaining. The definition of "public employee" in section 3(a) refers only to those who are permanently employed and have finished their trial periods. Section 15 lists a number of public employees (such as lawyers, civilian civil servants at the Ministry of National Defence and the Turkish Armed Forces, employees at penal institutions, etc.) who are prohibited from joining trade unions. The Committee would like to underline that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 262). Furthermore, as concerns armed forces and the police, although they can be excluded from the scope of the Convention, even in these areas it is understood that civilian workers at these institutions should be entitled to fully exercise the rights granted by the Convention as all other workers. The Committee therefore requests the Government to take the necessary measures to amend sections 3(a) and 15 so that public servants, other than those engaged in the administration of the State, are fully ensured the right to collective bargaining in accordance with the Convention.

Furthermore, the Committee requests the Government to provide details on the relationship between the role and functions of the Supreme Administrative Committee, the Institution Administrative Committee and the Public Employees Committee during collective bargaining. The Committee points out that, as concerns the employees of public enterprises and institutions, the public employer, instead of a Committee composed of various authorities, should be able to negotiate directly with the representative unions of a given public enterprise or institution and that the scope of employment conditions to negotiate should not be restricted to the economic conditions mentioned in section 28 of the Law but should also cover all the questions concerning working conditions. In this situation, consultations with budgetary authorities or other public bodies and authorities prior or during the collective bargaining could remain possible.

The Committee requests the Government to keep it informed of any measures taken to ensure the full application of the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It also notes the comments made by the Confederation of Turkish Trade Unions, the Confederation of Progressive Trade Unions of Turkey and the Turkish Confederation of Employers’ Associations (the comments of the latter two are being translated).

Articles 1 and 3 of the Convention. In its previous observations, the Committee had requested the Government to keep it informed of any progress made in the adoption of new legislation regarding the protection of workers against anti-union discrimination. The Government indicates in its report that a new draft Bill has been prepared by a commission of experts appointed by the social partners and the Minister of Labour. Furthermore, the Government indicates that the draft Bill amending Labour Act No. 1475 and Trade Unions Act No. 2821 has been submitted to the Council of Ministers. The Committee requests the Government to provide a copy of the draft Bill, in order to ensure its conformity with the requirements of the Convention.

Article 4. In its previous comments, the Committee had noted that the Government had initiated work to amend Acts Nos. 2821 and 2822, and that it had proposed to lift the 10 per cent membership requirement in a given branch of activity for collective bargaining purposes. The Government indicates in its report that the work on the draft Bills amending these Acts has not been finalized due to continuing consultations with social partners in order to reach a consensus on the question of dual criteria contained in legislation for determining the representative status of trade unions for collective bargaining purposes. The Government also indicates that these amendments are specified in the National Programme as having medium-term priority. The Committee expresses the firm hope that the Government will take the necessary measures to ensure the conformity of the draft Bills with the requirements of the Convention and once again requests the Government to provide a copy of the draft Bills amending Acts Nos. 2821 and 2822, as soon as they have been elaborated.

In its previous comments, the Committee had also requested the Government to take the necessary measures to ensure that all workers in export processing zones (EPZs) would enjoy the right to negotiate freely their terms and conditions of employment. In its report, the Government indicates that, regarding the issue of compulsory arbitration in EPZs, the proposed amendment in this regard has yet to be enacted and refers the Committee to previous information supplied by the Government representative during the 88th Session of the Conference Committee on the Application of Standards. The Committee recalls that the imposition of compulsory arbitration (as stipulated in article 1 of Act No. 3218) runs contrary to the principle of the voluntary nature of negotiations established in Article 4. It therefore urges the Government to amend its legislation to the effect that all workers in all EPZs enjoy the right to negotiate freely their terms and conditions of employment.

In previous comments, the Committee had also requested the Government to provide information regarding the draft Bill on public servants’ trade unions, and expressed the firm hope that the draft Bill would grant collective bargaining rights to public servants with the sole exception of those engaged in the administration of the State. The Committee notes the adoption of the Public Employees’ Trade Unions Act No. 4688, and proposes to examine its conformity with the provisions of the Convention at its next meeting.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the comments made by the Confederation of Progressive Trade Unions of Turkey (DISK) in a communication dated 19 July 2000 concerning the denial of the right to bargain collectively for ten trade union organizations due to the fact that they could not satisfy the 10 per cent membership requirement. The Committee notes that the Government states that it has initiated work to amend Acts Nos. 2821 and 2822 and proposed to lift the 10 per cent membership requirement in a given branch of activity for collective bargaining purposes, and that consultations with the social partners on these draft Bills are soon to be finalized.

The Committee requests the Government to send a copy of the Bill to amend Acts Nos. 2821 and 2822 as soon as prepared so as to be in a position to assess its conformity with the requirements of the Convention.

The Committee will examine next year this question as well as the issues raised in its previous observation, in the framework of the regular supervision of the application of the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1981 (see 313th Report, paragraphs 244-269, approved by the Governing Body at its March 1999 session). Finally, the Committee notes the comments made by the Turkish Confederation of Employer Associations (TISK), the Confederation of Turkish Trade Unions (TURK-IS) and the Confederation of Progressive Trade Unions of Turkey (DISK).

Articles 1 and 3 of the Convention. Further to its previous comments on the protection against anti-union discrimination under Trade Union Act No. 2821, the Committee takes note of the copies of judicial decisions sent by the Government which show that compensation in case of various acts of anti-union discrimination is granted quite frequently. The Committee further notes the Government's statement that section 31 of Act No. 2821 provides compensation of not less than the total amount of the worker's annual salary; this is not a fixed amount and may be increased by contract or collective agreement or by court decision. The Committee would nevertheless request the Government to keep it informed of any progress made in the adoption of new legislation, mentioned by the Government in it previous report.

Article 4. With regard to a number of limitations on collective bargaining mentioned by TURK-IS in its observations, the Government furnishes the following detailed comments.

On the issue of the prohibition of collective bargaining for confederations, the Committee notes the Government statement to the effect that the heterogeneous structure of confederations makes it difficult to conclude agreements along vertical lines. However, active involvement of the confederations in the bargaining process and even their leading role in the negotiations on behalf of their affiliated unions particularly in the public sector, is a widely accepted practice.

The requirement of one collective labour agreement at a given level has been imposed by the Constitution which has provided that no more than one agreement may be concluded for an establishment or enterprise at a given time span. The dual system of industry versus establishment level bargaining which existed before 1983 had led to various difficulties and abusive practices involving the conclusion of successive local agreements under the pretext of industry-wide authorization. In addition, industry-wide bargaining does exist in practice and collective labour agreements covering whole branches of activity are concluded in such industries as banking, sea transport, railway transport and national defence, etc.

With regard to ceilings imposed on indemnities, the Committee notes that the minimum levels imposed by Act No. 2821 and the Labour Act may be increased in favour of the worker by agreement. The only ceiling imposed is on the severance pay under the Labour Act. The severance pay that amounts to 30 days' salary for each year of the past service may also be increased in favour of the worker by contract or collective agreement but for one year and may not exceed the annual maximum retirement bonus to be paid to the public servant of the highest rank when retired.

Regarding the issue of the 60-day time limit for bargaining, the Government reiterates that following the 60-day negotiations stage, the parties are free to continue negotiating during the mediation stage as well as during the strike action which is entirely open ended.

On the issue of the dual criteria contained in legislation for determining the representative status of trade unions for collective bargaining purposes, the Committee notes that according to the Government this is a major issue which should be dealt with on a tripartite basis without giving way to the spread of "yellow" unions at the workplace level under the domination of the employer.

The Committee notes that the above-enumerated legislative limitations on collective bargaining do not appear to be observed by organizations of workers which, in practice, are free to pursue free collective bargaining. The Committee therefore requests the Government to indicate, in its next report, the measures taken to remove these restrictions with a view to promoting collective bargaining in accordance with Article 4 and national practice.

On the issue of the right to organize for public servants, the Government indicates that it was not able to secure the passage of the draft Bill on public servants' trade unions that had already been discussed by the Parliament due to the requests of opposition parties for its revision. The draft Bill was resubmitted by the new Government during the current session of the Parliament. The Committee once again expresses the firm hope that the Bill on public servants' unions will grant collective bargaining rights to public servants with the sole possible exception of those engaged in the administration of the State. The Committee requests the Government to provide information in this regard in its next report.

With regard to the issue of the collective bargaining rights of workers in export processing zones (EPZs), the Committee had previously noted that if negotiations failed, Act No. 3218 of 1985 imposes compulsory arbitration in EPZs for the settlement of collective labour disputes. The Committee notes the Government's statement that the ten-year period laid down by Act No. 3218 of 1985 expired in the Mersin and Antalya zones in 1997 and will come to an end in the Aegean and Atatürk Airport zones in 2000.

The Committee would nevertheless recall that the imposition of such compulsory arbitration runs contrary to the principle of the voluntary nature of negotiations established in Article 4. It therefore requests the Government to take the necessary measures to ensure that all workers in all EPZs enjoy the right to negotiate freely their terms and conditions of employment.

Finally, the Committee notes the Government's statement that in order to remove any discrepancy that might exist between the national legislation and the ILO Conventions that have been ratified by Turkey, the Government and the social partners decided in March 1999 to establish a tripartite committee of experts with a mandate to examine the labour legislation and to propose amendments where necessary.

The Committee trusts that this tripartite committee of experts will take account of the Committee's comments when proposing amendments to labour legislation. The Committee requests the Government to send information in this respect. It once again requests the Government to consider availing itself of the assistance of the Office with a view to removing the obstacles which prevent the Convention from being fully applied.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information supplied by the Government in its report, as well as the information provided to the Conference Committee in June 1998 and the detailed discussion which took place thereafter. The Committee also notes the comments made by the Confederation of Turkish Employers' Associations (TISK), the Confederation of Turkish Trade Unions (TURK-IS) and the Energy, Road, Construction, Infrastructure, Title Deed Land Survey Public Sector Employees' Trade Union.

1. Articles 1 and 3 of the Convention. In its previous observations, the Committee had noted the comments made by TURK-IS on the insufficient protection against acts of anti-union discrimination under Trade Union Act No. 2821. In this regard, the Committee notes the information supplied to the Conference Committee whereby the Government indicates that sections 29, 30 and 31 of Act No. 2821 and the sanctions stipulated therein provide for sufficient protection against acts of anti-union discrimination. More specifically, in case of discrimination at the time of recruitment, the fine envisaged is not less than half of the prevailing monthly wage. Moreover, although according to the Turkish legislation the burden of proof rests with the plaintiff, an amendment made to Act No. 2822 in 1988 stipulates that communication to the employer by the union of a worker's acquisition of membership should be delayed until it could have no adverse effect at all on the right to organize and bargain collectively. In the event of the dismissal of a worker due to union-related activities, in addition to the rights conferred by labour legislation, such as severance indemnities and notice pay, the employer is required to pay compensation which is not less than the worker's total annual wages. This compensation is payable not only in the case of dismissal, but also for other acts of anti-union discrimination, for example with regard to the distribution of work or promotion. Various rulings by the courts show that this type of compensation is granted more frequently than had been claimed by TURK-IS. Moreover, section 29 of Act No. 2821 provides for specific protection for trade union officials, which includes their reinstatement in their previous or similar jobs within one month of their request for reinstatement, provided they apply to their previous employer within three months of losing their positions in the trade union. However, until the adoption of enabling legislation consistent with the Termination of Employment Convention, 1982 (No. 158), shop stewards are the only category granted complete job security, including reinstatement. Work is under way on the formulation of new legislation in this matter.

The Committee takes note of this information and requests the Government to keep it informed of any progress made in the adoption of this legislation. It hopes that it will ensure effective protection to all workers against acts of anti-union discrimination. It further requests the Government to provide copies, along with its next report, of judicial decisions which show that compensation in case of various acts of anti-union discrimination is granted quite frequently.

2. Article 4. With regard to a number of limitations on collective bargaining mentioned by TURK-IS in its observations (prohibition of collective bargaining for confederations, industry-wide bargaining is not admitted, only one collective agreement is allowed at a given level, ceilings are imposed on indemnities, there is a 60-day time-limit for bargaining), the Committee notes that the information supplied by the Government representative to the Conference Committee, while justifying these restrictions, appears to confirm their existence with the exception of the 60-day time-limit for bargaining. Moreover, with regard to the dual criteria contained in legislation for determining the representative status of trade unions for collective bargaining purposes, the Government representative indicated that endeavours to abolish this requirement were being pursued but that it needed the consent of the social partners which had raised objections thereto.

The Committee recalls that all the above measures constitute serious limitations on collective bargaining. It requests the Government to provide information, in its next report, on the measures taken to remove these restrictions with a view to promoting the voluntary negotiation of terms and conditions of employment through collective agreements in accordance with Article 4.

3. Regarding the denial of the collective bargaining rights of public servants, the Committee notes the statement made by the Government representative to the June 1998 Conference Committee to the effect that a draft Bill on public servants' union formulated in accordance with the Turkish Constitution (article 53), as amended in 1995, had been submitted to the Grand National Assembly. In addition to guaranteeing freedom of association for public servants, the Bill envisaged judicial appeal mechanisms and an impartial conciliation board. The provisions of the Bill had been debated extensively in Parliament and nearly half of them had been approved. It was expected that the remaining part would also be debated and enacted. In the meantime, Act No. 4275 of 12 June 1997 had amended the Public Servants' Act No. 657 to recognize the right to organize trade union and higher level organizations for public servants.

With regard to the collective bargaining rights of public sector workers, the Government representative indicated that public sector workers under employment contracts had always enjoyed the same rights as private sector workers. Contract personnel employed in public economic enterprises would be covered by the Bill on public servants' unions, since they were considered to be public officials employed in the continuous and essential services of the State.

The Committee once again expresses the firm hope that the Bill on public servants' unions will grant collective bargaining rights to public servants with the sole possible exception of those engaged in the administration of the State and that it will be enacted in the near future and requests the Government to inform it, in its next report, of any progress made in this regard and to send a copy of the Bill once it is adopted.

4. With regard to the issue of the collective bargaining rights of workers in export processing zones (EPZs), the Committee notes that the information provided to the Conference Committee confirms that if negotiations fail, Act No. 3218 of 1985 imposes compulsory arbitration in EPZs for the settlement of collective labour disputes, although this Act would no longer apply from the year 2000 to the Aegean Free Trade Zone, which employs some 90 per cent of all the workers concerned.

The Committee would nevertheless recall that the imposition of such compulsory arbitration runs contrary to the principle of the voluntary nature of negotiations established in Article 4. It therefore requests the Government to take the necessary measures to ensure that all workers in all EPZs enjoy the right to negotiate freely their terms and conditions of employment.

The Committee requests the Government to give detailed information in its next report on the points raised above. It requests the Government once again to consider availing itself of the assistance of the Office with a view to removing the obstacles which prevent the Convention from being fully applied.

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

The Committee notes that the Government's report has not been received. It notes the Government's observations, dated January 1997, on the communication of the Confederation of Turkish Trade Unions (TURK-IS) of June 1996.

The Committee observes that TURK-IS, in its observation, refers to repeated comments by the Conference Committee on the Application of Standards, by the Committee on Freedom of Association and by the Committee of Experts. The main points raised are in relation to persistent divergencies in law and practice.

The Committee notes that the Government in its comments states that Bills prepared to bring the legislation into conformity with the ratified Conventions had been returned to the Ministry of Labour for review and revision; they will be submitted to the social partners for consideration before being reintroduced. The Committee also notes that, during the discussion on Convention No. 87, the Government representative at the Conference Committee in June 1997 mentioned various Bills and amendments currently under examination, especially as regards the right of public servants to negotiate collectively.

1. Articles 1 and 3 of the Convention. The Committee in its previous observations had noted the comments by TURK-IS on the insufficient protection against acts of anti-union discrimination. It notes that, in its more recent observations, TURK-IS states that, under Trade Union Act No. 2821, in case of discrimination at the time of recruitment the legal fine is too low and the burden of proof rests with the worker. There is no effective protection against dismissal, legal compensation (one year of wages) being very rarely granted and reinstatement being impossible under current legislation -- except for shop stewards. As for trade union officials -- except shop stewards, they are not adequately protected against transfers or dismissals. The Committee once more urges the Government to take the necessary measures in the near future to amend its legislation to ensure effective protection of workers against all acts of anti-union discrimination (including dismissal) in accordance with the Convention. The Committee requests the Government to give full and detailed information in its next report on the measures taken and the progress made.

2. Article 4. The Committee notes that TURK-IS mentioned in its observations a number of limitations on collective bargaining (confederations are barred from collective bargaining, industry-wide bargaining is not admitted, only one collective agreement is allowed at a given level, ceilings are imposed on various indemnities, there is a 60-day time-limit for bargaining, etc.). In its previous comments, the Committee had also noted the Government's intention to change the existing dual criteria of representativity currently provided for in legislation.

The Committee asks the Government to give detailed information in its next report on the measures taken to set aside the limitations and to encourage and promote voluntary collective negotiations in accordance with Article 4.

3. As concerns the denial of collective bargaining rights of public servants, the Committee notes that a Bill had been prepared which granted public servants the right to organize their unions and negotiate collectively with the administration as regards their salaries and working conditions and that the Bill had been submitted after consultation with the social partners to the Council of Ministers in May 1997. The Committee once more expresses the firm hope that the legislation will be enacted in the near future under the national constitutional provision (article 53, as amended) which lays down the right of public servants to establish associations and to bargain collectively and stipulates that this right is to be regulated by law.

It asks the Government to communicate in its next report precise information on any progress in the matter and to send a copy of the Bill as soon as it is adopted.

The Committee also asks the Government to send precise information on the right of association and particularly of collective bargaining of public employees who are not civil servants and contract personnel in public economic enterprises and other employees of public bodies.

4. The Committee had, in its previous observations, commented on compulsory arbitration. The Committee is addressing this point under Convention No. 87.

The Committee notes that, in order to further trade, Act No. 3218 of June 1985 on Free Trade Zones provides that, if negotiations failed, the dispute was to be referred to compulsory arbitration for a period of ten years from the inception of the free trade zone. The Committee asks the Government to give full information on the right to collective bargaining in the export processing zones.

The Committee requests the Government to give full and detailed information in its next report on the points raised above. It also once more asks the Government to consider availing itself of the assistance of the Office to remove the obstacles which prevent the Convention from being fully applied.

[The Government is asked to report in detail in 1998.]

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

The Committee takes note of the information provided in the Government's latest report, as well as the comments made by the Confederation of Turkish Trade Unions (TURK-IS) and the Turkish Confederation of Employer Associations (TISK). It further notes the statement made by the Government representative at the Conference Committee in June 1996 and the discussion which took place thereafter. Finally, the Committee 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)).

1. Articles 1 and 3 of the Convention. The Committee notes the comments made by TURK-IS that, although section 31 of the Trade Unions Act appears to provide adequate protection against anti-union discrimination, the lack of job security and of effective sanctions render this provision insufficient. In this regard, the Committee notes the Government's statement that once the studies aimed at ensuring conformity with the provisions of Convention No. 158, recently ratified by Turkey, have been concluded, it will provide the Committee with the necessary information on the issue. The Committee would ask the Government to indicate in its next report the progress made in this regard, as well as any other measures taken to guarantee workers more effective protection against acts of anti-union discrimination.

2. Article 4. With regard to the dual criteria for determining representative trade unions for collective bargaining purposes, the Committee notes the statement made by the Government representative at the 1996 Conference Committee to the effect that endeavours to abolish this requirement had failed because of the objections raised by TURK-IS and TISK. The Government representative added, however, that efforts would continue in this direction and that, with the establishment of the tripartite Economic and Social Council, the question of criteria for selecting representatives would be debated extensively and brought to a satisfactory conclusion. In its latest report, the Government has indicated that a Bill to amend Act No. 2822 on collective agreements, strikes and lockouts, proposes lifting the stipulation that a trade union represent at least 10 per cent of workers in a branch in order to have bargaining status. The Committee notes this information and requests the Government to indicate, in its next report, any progress made in reducing this dual requirement and thus promoting the fuller development and utilization of machinery for the voluntary bargaining of collective agreements in accordance with Article 4.

3. As concerns the denial of collective bargaining rights of public servants not engaged in the administration of the State, the Committee notes the statement by the Government representative at the 1996 Conference Committee that efforts were being made to draft legislation to regulate the trade union rights of public servants in accordance with the new amendments in the Turkish Constitution and the corresponding principles envisaged in Convention No. 151. In its latest report, however, the Government states its understanding, based on the French version of the text, that this Convention is not applicable to state officials. In this regard, the Committee would draw the Government's attention to paragraph 200 of its 1994 General Survey on freedom of association and collective bargaining where it has indicated that the distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided by the Convention. Noting from the Government's first report under Convention No. 151 that a Bill regulating the trade union rights of civil servants generally has been prepared and submitted to the Turkish Grand National Assembly, the Committee hopes that this draft legislation will contain provisions which are in accordance with Convention No. 98.

4. As regards its previous comments concerning compulsory arbitration under section 33 of Act No. 2822, the Committee is pursuing this matter in its examination of the application of Convention No. 87 by Turkey.

5. The Committee would once again remind the Government that ILO technical assistance is available if it so desires to facilitate overcoming the obstacles to the full implementation of the Convention noted above.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in its report and the discussions which took place at the Conference Committee in June 1994, as well as the comments of the Confederation of Turkish Trade Unions (TURK-IS).

The Committee recalls that for several years it has been commenting on the fact that trade unions may negotiate collectively only if they represent at least 10 per cent of the membership of the branch and more than 50 per cent of an establishment, that public servants are denied the right to bargain collectively and that arbitration is compulsory in collective disputes which are not a threat to essential services.

1. As regards the numerical requirements for a trade union to bargain collectively, the Committee notes the information provided by a Government representative to the Conference Committee and by the Government in its report according to which the removal of the requirement of at least 10 per cent of the membership of workers of a branch is still being studied in spite of the objections made by organizations of employers and workers.

The Committee reminds the Government that effective measures should be taken to reduce the numerical requirements from national legislation in order to allow the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4 of the Convention.

2. With regard to the denial of collective bargaining rights of public servants, the Committee notes that the Bill on the right to organize of public servants and on their participation in the determination of their employment conditions is still before the competent Committee of the National Assembly.

The Committee recalls in this respect that the Convention only excludes public servants engaged in the administration of the State. It therefore requests the Government to take the necessary measures so that public servants who are not engaged in the administration of the State have the right to bargain collectively as soon as possible. It requests the Government to provide information on any progress made in this respect in its next report.

3. As regards compulsory arbitration, the Committee notes that the Government maintains its position that section 33 of Act No. 2822 imposing this arbitration is not in contradiction with the Committee's principles but that it is ready to take into consideration any concrete proposal from the Committee in this respect.

The Committee emphasizes once again that legislation should limit recourse to compulsory arbitration to essential services in the strict sense of the term. Consequently, in the Committee's view, section 33 of Act No. 2822 should only apply to services the interruption of which would endanger the life, safety and health of the whole or part of the population. The Committee therefore requests the Government to quickly take the necessary measures to limit the scope of section 33.

4. Taking into account the fact that the important problems presented in this observation have been raised for several years, the Committee considers it necessary to remind the Government that the assistance of the Office is at its disposal to facilitate the removal of the obstacles which are preventing the Convention from being fully applied.

5. Finally, the Committee notes that the Government has not provided its observations on the comments made by TURK-IS regarding the application of the Convention. The Committee requests the Government to provide its observations on this matter in its next report.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information provided by the Government representative to the Conference Committee in June 1995 and the discussions of that Committee.

The Committee also notes the comments made by the Confederation of Turkish Trade Unions (TURK-IS) relating to the insufficiently dissuasive nature of sanctions against anti-union discrimination, the prohibition upon federations and confederations from participating in collective bargaining and the compulsory arbitration imposed under the terms of Act No. 3218 of 15 June 1985 for ten years in free trade zones. The Confederation of Progressive Trade Unions of Turkey (DISK) made comments on the denial of the right to bargain collectively as a result of the over-stringent requirements set out in law as regards the criteria of representativity and also on the compulsory arbitration that has been imposed since 1985 in free trade zones. The Turkish Confederation of Employer Associations (TISK) considers, however, that the Convention is properly applied in Turkey.

The Committee recalls that for several years its comments have related to the requirements concerning the membership of trade unions, under which they are only authorized to negotiate collectively if they represent at least ten per cent of the workers in a branch and over half of the workers in an establishment; the denial of the right of public servants to bargain collectively other than those engaged in the administration of the State; and the imposition of compulsory arbitration in collective disputes which do not prejudice essential services.

1. With regard to the minimum requirement for membership of a trade union to be able to negotiate collectively, the Committee notes the information reiterated by a Government representative to the Conference Committee to the effect the abolition of the requirement that ten per cent of the workers in a branch must be members is still under examination, despite the objections raised by the organizations of employers and workers (TISK and TURK-IS).

However, the Committee notes that DISK in its comments criticizes these provisions, which have the effect of denying many workers the right to negotiate their terms and conditions of employment with employers. The Committee therefore reminds the Government that measures have to be taken to reduce the numerical requirements set out in the legislation and thereby allow the fuller development and utilization of machinery for the voluntary bargaining of collective agreements, in accordance with Article 4 of the Convention.

2. With regard to the denial of the collective bargaining rights of public servants not engaged in the administration of the State, the Committee notes the constitutional amendments published in the Official Gazette on 25 July 1995 and in particular article 53(2) and (3) of the Constitution, which lays down the right of public servants to establish associations and to collective bargaining in accordance with a special law that will govern this matter. The Committee expresses the firm hope that legislation will be adopted in the near future under this provision and that it will contain provisions which are in accordance with the requirements of Conventions Nos. 98 and 151, which have been ratified by Turkey.

3. As regards compulsory arbitration, the Committee notes that the Government representative maintains the Government's position that Act No. 2822, section 33, which imposes such arbitration, is not in contradiction with the principles of the Committee. He emphasized that the wording of this provision concerning cases that are likely to be prejudicial to public health or national security are fully in conformity with the position of the Committee of Experts. Furthermore, any government decision is subject to the supervision of the independent judiciary. The interested parties can also have recourse to voluntary arbitration at any time. Finally, the Government can withdraw its decision if the circumstances justifying it no longer existed.

The Committee notes this information, but it once again recalls that legislation should limit recourse to compulsory arbitration to essential services in the strict sense of the term. Consequently, in the Committee's view, Act No. 2822, section 33, should only apply to services the interruption of which would endanger the life, safety and health of the whole or part of the population. The Committee therefore requests the Government to take the necessary measures rapidly to limit the scope of section 33.

4. In view of the fact that the important problems described in this observation have been raised for several years, the Committee, while noting with interest certain developments at the constitutional level, considers it necessary to remind the Government that the assistance of the Office is at its disposal to facilitate the removal of the obstacles which are preventing the Convention from being fully applied.

5. The Committee also notes that the Government has not provided its observations on the comments made by TURK-IS and DISK on the application of the Convention. The Government sent its report on the application of the Convention during the present session of the Committee. The latter does not doubt that the Government has replied to some of the questions raised above. It will examine the Government's report during its next meeting. In order to complete the information at its disposal, the Committee requests the Government to reply to all the points raised by the two confederations in its next report.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government in its report and the discussions that took place at the Conference Committee in June 1993, as well as the comments of the Confederation of Turkish Labour Real Trade Union (HAK-IS) and of the Confederation of Turkish Trade Unions (TURK-IS).

The Committee recalls that for several years it has been commenting on the fact that trade unions may negotiate collectively only if they represent for at least 10 per cent of the membership of a branch and more than 50 per cent of the employees of an establishment, that arbitration is compulsory in collective disputes which are not a threat to essential services and that public servants are denied the right to bargain collectively.

1. The Committee notes the information provided by a Government representative to the Conference Committee and by the Government in its report, to the effect that the numerical requirements laid down in section 12 of Act No. 2822 have been maintained because of a consensus between the main social partners, but that the Government will endeavour to amend them in accordance with the Committee's wishes.

The Committee expresses the hope that the Government will indeed take the necessary measures to remove the two numerical requirements from the national legislation in order to encourage and promote the full development and utilization of machinery for voluntary collective bargaining, in accordance with Article 4 of the Convention.

2. With regard to the collective bargaining rights of public servants, the Government indicates that in order to ensure the conformity of the legislation with Convention No. 87 which Turkey has recently ratified, a Bill on the trade union rights of public servants has been submitted to the social partners for discussion. It adds that, in practice, public servants have already formed organizations and that the Prime Minister's circular, No. 1993/15 of 15 June 1993, has eliminated the practical obstacles to the exercise of their trade union rights.

TURK-IS, for its part, regrets that the union activities of the public servants' organizations have been impaired by administrative decisions, that public servants have been subjected to anti-union discrimination and that their collective bargaining rights have still not been guaranteed.

The Committee notes this information and these comments. It expresses the firm hope that the Bill will guarantee that public servants have the right to negotiate the conditions of their employment collectively. It asks the Government in its next report to indicate any progress made in this respect and to provide a copy of the Bill as soon as it has been adopted.

3. The Committee regrets to note that the Government repeats that compulsory arbitration is resorted to only in strictly defined conditions, in the context of procedures bringing together the two social partners and only in exceptional circumstances in order to protect workers who would otherwise be deprived of an essential means of protecting their occupational interests. The Committee recalls that the imposition of compulsory arbitration is contrary to the promotion of voluntary collective bargaining and should be limited to essential services in the strict sense of the term, that is services the interruption of which would endanger the life, safety or health of the whole or part of the population, and again asks the Government to take the necessary measures at the earliest possible date to amend section 33 of Act No. 2822 to bring it into conformity with the principle referred to above, and to indicate in its next report any progress made in this respect.

[The Government is asked to report in detail for the period ending 30 June 1994.]

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee has expressed for many years its concerns regarding legislative infringement of free collective bargaining, compulsory arbitration in cases of collective disputes other than those relating to essential services and denial of the right to bargain collectively to public servants.

The Committee notes that the Government makes no comment in its report on the issue of compulsory arbitration but indicates only that public employees such as teachers and banking employees will be provided the right and freedom to organize. In addition, the Committee regrets that despite the Government's statement to the Conference Committee in 1991 to the effect that it had introduced a Bill which envisaged lifting the 10 per cent minimum branch membership requirement for collective bargaining, the Government states in its current report that since the social partners are still opposing this amendment, it does not consider itself to be in a position to modify the law. The Committee can only point out once again that under Article 4 Governments should take measures appropriate to national conditions to encourage and promote the full development and utilization of voluntary negotiation by means of collective bargaining.

The Committee therefore recalls that the numerical requirements in article 12 of Act No. 2822 are not in accord with the principle of voluntary collective bargaining under the Convention, and requests that the Government indicate in its next report any measures taken or contemplated in relation to the three issues above to bring its legislation into conformity with the Convention.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information supplied by the Government to the Conference Committee in 1991 and the extensive discussion which followed, as well as the communications of the Turkish Railways Workers Trade Union (Demiryol-Is) and of Public Services International (PSI) of May and June 1991. It further notes in particular the conclusions of the Committee on Freedom of Association in Cases Nos. 997, 999 and 1029 (282nd Report) and Nos. 1582 and 1583 (281st Report) concerning Turkey, approved by the Governing Body at its February-March 1992 Session.

The Committee has expressed for many years its concern regarding two problems arising from the Turkish legislation on collective bargaining: numerical requirements for trade unions to be allowed to negotiate a collective agreement and compulsory arbitration in certain cases. In its last observation, the Committee also recalled its principles concerning the rights of public servants.

The Committee notes with interest that, following the recent general election, the new Government announced its intention further to liberalise and democratise the current legislation in general and the labour legislation in particular. The Committee notes in particular that, according to the Government Programme presented in November 1991 before the Grand National Assembly: the new Constitution will institutionalise trade union rights in conformity with ILO standards; trade union rights and freedoms will be guaranteed to civil servants and other workers in the private sector, including those in the banking industry.

The Committee takes note of the firm commitment given by the Government which, if implemented, would bring the legislation into closer conformity with the requirements of the Convention. Noting that the advisory services of the ILO have been offered to the Government, the Committee strongly hopes that these stated intentions will rapidly be followed by legislative measures, in order to encourage and promote the full development and utilisation of voluntary negotiation between workers' and employers' organisations, so that terms and conditions of employment may be regulated in this way, in accordance with Article 4 of the Convention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report and the information that it supplied to the Conference Committee in June 1988 and the subsequent discussion. The Committee also notes the conclusions of the Committee on Freedom of Association in the cases that it has examined concerning Turkey (260th Report, November 1988), in so far as they relate to the application of the Convention and it notes the observations supplied by the Turkish Confederation of Employers (TISK) and the Confederation of Turkish Trade Unions (TURK-IS).

In its previous comments, the Committee expressed its concern regarding two problems relating to the Turkish legislation on collective bargaining, namely the numerical requirements set out for trade unions to be allowed to negotiate a collective agreement (section 12 of Act No. 2822) and the procedure for postponing a strike and for compulsory arbitration in certain specified cases (section 33 of Act No. 2822). The Committee has examined with interest the amendments made by Acts Nos. 3449 and 3451, which improve the legislation in certain respects. However, it is bound to note that the situation remains unchanged with regard to the two provisions referred to above.

The Government states that it is convinced that there are no grounds of a legal or practical nature for amending the provision that lays down the double numerical requirement, and bases its view essentially on the following arguments:

- this requirement reflects "national conditions";

- it has not been criticised by the other social partners;

- it has made it possible to establish powerful trade unions, with sufficient human and material resources to represent their members effectively.

With regard to the provisions imposing compulsory arbitration in certain situations, the Government emphasises, firstly, that this procedure has only been imposed once since 1983 and, secondly, that:

- it applies only in exceptional cases (when the health of the population or national security are endangered), and only if the exceptional circumstances continue;

- the law provides for the possibility of an appeal to the administrative appeal tribunal;

- agreement can always be reached during the period of postponement;

- the tripartite composition of the Supreme Arbitration Board guarantees the balanced nature of its decisions.

The Committee notes with regret the position adopted by the Government and urges it to amend the legislation in order to encourage and promote the full development and utilisation of voluntary negotiation between workers' and employers' organisations for the conclusion of collective agreements, so that terms and conditions of employment can be regulated in this way in accordance with Article 4 of the Convention.

It urges the Government to indicate in its next report the measures that are envisaged, firstly, to grant trade unions, which do not represent 50 per cent of the workers in an enterprise or 10 per cent of the workers in a sector of activity, the right to negotiate collectively terms and conditions of employment, at least on behalf of their own members and, secondly, to restrict the application of the compulsory arbitration procedure established by the legislation in cases where a work stoppage due to a strike would endanger the life, personal safety or health of the whole or part of the population.

Furthermore, in view of the continuing ambiguity in this respect, the Committee requests the Government to indicate whether, in the terms of the Convention, public servants covered by the Convention, namely those who are not engaged in the administration of the State, enjoy the right to organise and to negotiate freely their terms and conditions of employment, and it requests the Government to supply with its next report the legislative texts and regulations relating to this matter.