Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Türkiye (Ratificación : 1952)

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.]