Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 363, Marzo 2012

Caso núm. 2789 (Türkiye) - Fecha de presentación de la queja:: 02-JUN-10 - Cerrado

Allegations: The complainant alleges that two enterprises, Menders Tekstil and Desa Der Sanayi ve Ticaret AS initiated anti-union campaigns involving acts of harassment and intimidation, and dismissals to deter workers from organizing. The complainant further alleges that national legislation unduly restricts the rights to organize and collective bargaining and fails to provide adequate protection against acts of anti-union discrimination and interference

1. 1098. The International Textile, Garment and Leather Workers’ Federation (ITGLWF) submitted its complaint in communications dated 2 June 2010.
2. 1099. The Government sent its observations in a communication dated 29 September 2011.
3. 1100. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1101. By its communications dated 2 June 2010, the ITGLWF submitted a complaint on behalf of its two affiliates, Teksif and Deri-Is, which involves two companies as related below.

Menderes Tekstil

1. 1102. By way of background, the ITGLWF indicates that workers at the Menderes Tekstil plant in Denizili began to organize in mid-2008 when the company began downsizing without, allegedly, making any effort to mitigate the negative impact on workers. The complainant alleges that when Teksif began recruiting workers at the company, the latter adopted an anti-union attitude: it prevented union activists from handing out leaflets; played loud music to disturb trade union activists trying to address workers at the factory gates; insulted union organizers in front of workers; and generally tried to intimidate them. The ITGLWF further alleges that in July 2008, 12 union members were unfairly dismissed. According to the complainant organization, one worker was escorted to the notary public to sign her formal resignation from the union and to attest that she would take no action against the company. The notary’s fees, amounting to nearly a week’s wages, were paid by the company.
2. 1103. When the company refused to address the issue, 12 workers initiated legal proceedings. Seven workers withdrew their cases, allegedly after receiving threats from the company. On 21 October 2009, the Labour Court ruled that it had not been proven that the workers had been dismissed as a result of their union activity, given that the company was in the process of downsizing. The ITGLWF indicates that the union appealed the cases in the High Court of Appeal.
3. 1104. In July 2009, Teksif formally requested a meeting with the company’s management to discuss the outstanding issues at the plant. The company responded by claiming that the European Social Charter prevented it from accepting the union as a party and that a meeting with the union would amount to “imposing” a particular union on the workforce.
4. 1105. Based on the above, the complainant alleges failure of the Government to uphold the freedom of workers to establish organizations and to allow unions to represent the interests of their members, as well as to promote collective bargaining. In particular, the ITGLWF indicates that the requirement under the legislation that trade unions must represent at least 10 per cent of workers at the sectoral level and over 50 per cent of workers at the enterprise level before they can gain recognition for the purpose of collective bargaining and elect shop stewards (whose role is to handle grievances, protect the rights and interests of workers and supervise the observance of working conditions) has made it impossible for workers at the company in question to establish a trade union. According to the complainant, the exercise of the right to organize has been further hampered by the legislative provision which requires workers to certify their union membership by the notary, which can only be done during work hours, meaning that workers need to leave work and that an employer can easily find out who is joining a union. Moreover, the complainant considers that a notary fee of about 20 euros (one fifteenth of the monthly wage) clearly hinders the free exercise of the right to organize.
5. 1106. The ITGLWF indicates that Teksif was the only union at the enterprise, yet it was prevented not only from bargaining on terms and conditions of employment but also from operating at the workplace, from engaging in discussions on good industrial relations practices or even from representing individual workers in grievances. The union was also denied the opportunity of consultation on the measures to be taken to avert or to minimize the termination and to mitigate the adverse effects of dismissals in accordance with the Termination of Employment Convention, 1982 (No. 158), ratified by Turkey.

Desa Der Sanayi ve Ticaret AS

1. 1107. The ITGLWF alleges that when its affiliate organization, Deri-Is (first trade union organization at the enterprise) began organizing workers at the plant in April 2008, the company began dismissing union members or harassing them. Over the course of the week of 28 April to 5 May, the company dismissed 38 union members. Other workers were harassed and intimidated and told they would lose their jobs if they did not resign from the union. In July 2008, the company also dismissed a worker from its Sefakoy plant. In her eight years at the factory, Ms Emine Arslan had developed a reputation of a diligent worker; yet shortly after she started organizing workers, she received three warnings on the same day and fired. The day after her dismissal, Deri-Is union representatives came to the factory and sought a meeting with the company’s management, but the latter refused to deal with the union, telling Ms Arslan to come alone if she wished to talk. In December 2009, the company dismissed another five union members.
2. 1108. When the company refused to reinstate the dismissed workers, Deri-Is and the ITGLWF engaged with the company in an attempt to find a solution. The ITGLWF wrote to the company’s management on 22 occasions between April 2008 and June 2009 to ask for the reinstatement of the unfairly dismissed workers and for other measures to ensure sound industrial relations at the plant (including respect for the right to unionize, access to the workplace for trade union representatives, and beginning discussions with the union on industrial relations issues). According to the complainant, several meetings took place between the management, Deri-Is and the ITGLWF regional organization, ETUF–TCL, but every time it appeared that progress was being made the company went back on its commitments. The company repeatedly claimed it could not accept union demands for the introduction of an industrial relations management system because the demands were in breach of Turkish legislation regarding representation rights requiring a union to represent over 50 per cent of the workforce before it can be recognized.
3. 1109. The complainant indicates that in view of the company’s refusal to reinstate the dismissed workers, the union initiated legal action on their behalf. It further points out that the unlawful nature of these dismissals is not in question given that the courts found that the workers had been dismissed because of their union membership. In 34 of the 43 cases submitted, the courts found that the workers had been dismissed because of their union activity and ordered the company to either reinstate them with four months’ back pay or finalize the termination of their employment with the payment of 16 months’ wages. Of the remaining nine cases, two were rejected because the workers concerned had been employed for less than six months; six cases were dropped after the workers concerned received inducements from the employer (three of those were subsequently reinstated, while others received money) and one case was rejected because the worker concerned had signed a letter of resignation as well as a letter saying that he was leaving the company at his own free will (the union has appealed this case in view of the fact that the letter was signed under pressure). The company appealed the Labour Court’s rulings but the Supreme Court rejected the appeal. To date, 32 appeal cases have been found in favour of the workers, while two are still pending.
4. 1110. In spite of this, the company continued to refuse to reinstate all but three of the workers who were demanding reinstatement, and opted to pay compensation to 15 workers whose cases were approved by the Supreme Court. On 24 August 2009, the company and the union reached an agreement providing for the reinstatement of six workers and the recognition of Deri-Is as the single authorized union at the factory. However, the company failed to uphold the terms of the agreement, including by refusing to reinstate two of the six workers. The ITGLWF alleges that anti-union discrimination continues to this day. A union member was dismissed in May 2010, while others have been harassed, given warnings and reassigned to other sections. During a training programme in March, workers were warned not to join the union because it was a “terrorist” organization.
5. 1111. The complainant further alleges that during the course of the organizing drive at the plants, the company set up a joint Workers’ Council which was used to further undermine unionists’ efforts. The workers represented on the Council were appointed by the employer rather than being freely elected by the workers.
6. 1112. Based on the above, the ITGLWF considers that the Government failed to uphold the freedom of workers to establish organizations and to protect against acts of interference and anti-union discrimination, as well as to promote collective bargaining and allow unions to defend the interests of their members. In addition to the minimum legislative requirements to establish trade union organization at the enterprise level referred to above, the complainant organization considers that by creating a joint Workers’ Council, the employer was conveying to workers that they had no need for a union and thus further hindered workers’ freedom of association rights. Indeed, according to the ITGLWF, the Council worked to keep the union out of the workplace and the fact that workers were appointed by the employer rather than being freely elected meant the Council was neither independent nor legitimate.

B. The Government’s reply

1. 1113. In its communication dated 29 September 2011, by way of background, the Government refers to article 51(1) of the Constitution of the Republic of Turkey, which provides for the right of employees and employers to form labour unions and employers’ associations and their higher organizations, without obtaining prior permission as well as to join and freely withdraw from such organizations, in order to safeguard and develop their economic, social and labour rights and interests. According to the same provision, no one shall be forced to become a member of a union or to withdraw from its membership. The Government also refers to section 22 of the Trade Unions Act (No. 2821), according to which, trade union membership shall be optional and no one shall be forced to join or not join a trade union. According to the same provision, membership in a workers’ trade union shall be acquired by forwarding five copies of the membership registration form duly completed and signed by the worker and certified by a notary public to the trade union concerned, subject to the approval by the competent body of such an organization. According to the Government, section 25 of this Act also stipulates that no worker or employer shall be forced to maintain or withdraw his or her membership in a trade union and that any member may resign by giving a prior notice in person in the presence of a notary public.
2. 1114. As to collective bargaining agreements, the Government refers to article 53 of the Constitution, which provides that workers and employers have the right to conclude collective bargaining agreements in order to regulate their economic and social position and conditions of work and that the collective bargaining procedure shall be regulated by law, and to section 12 of the Collective Labour Agreements, Strikes and Lock-outs Act (No. 2822) which stipulates that “a trade union of workers representing at least 10 per cent of the workers engaged in a given branch of activity (excluding the branch of activity covering agriculture, forestry, hunting and fishing) and more than half of the workers employed in the establishment or each of the establishments to be covered by the collective labour agreement shall have the power to conclude a collective labour agreement covering the establishment(s) in question”.
3. 1115. The Government indicates that, following the 2010 constitutional amendments, membership in more than one union became possible and more than one collective agreement can now be concluded at the same workplace. Other provisions restricting the right to strike (concerning liability for damages caused during a strike, as well as prohibition of politically motivated and solidarity strikes, go-slows and pickets) were also repealed. The Government explains that Acts Nos 2821 and 2822 will be amended in consultation with the social partners. In this respect, it indicates that a committee composed of academics was formed to re-evaluate the Bill Amending Acts Nos 2821 and 2822. This Bill is currently on the agenda of the Grand General Assembly of Turkey. The Government explains that the Draft Act on Trade Unions and Collective Labour Agreements, Strikes and Lock-outs prepared by the committee in line with the ILO norms and EU standards was reviewed by the social partners in the framework of the tripartite consultancy committee meetings.

Observation on the matters raised by the Teksif Union

1. 1116. The Government explains that the allegations of acts of anti-union discrimination at the Menderes Tekstil have been examined by labour inspectors of the Ministry of Labour and Social Security. It refers to the following findings contained in their June 2011 report:
   • (i) As workers’ contracts were terminated because of their refusal to comply with the employer’s decision dated 21 March 2008 to close down some machines in the fibre department of the factory and to reassign affected workers to other departments, and as such workers received compensation, it cannot be considered that workers’ right to organize was limited or obstructed. Downsizing of the company is an indicator of the global economic crisis.
   • (ii) When workers’ contracts are terminated for economic reasons, it is normal that some union members are also affected; otherwise it would constitute an infringement of the equal treatment principle embodied in the Labour Law.
   • (iii) The verdict of the local courts in cases filed by some affected workers confirmed that “termination of contracts cannot be considered as an evidence of obstacle to freedom of association”.
   • (iv) The fact that the workers’ protest only ended when a few workers whose service contracts were terminated gave up gave the impression that the employer had not put any pressure on trade union members.
   • (v) According to the legislation, a trade union, whose competence to conclude a collective labour agreement is not certified, cannot represent workers against an employer. Therefore, the fact that the workers’ decision not to accept the Union of Teksif as a party and not to accept its offer to take a decision should not be criticized and be considered as a ground for complaint.
2. 1117. The Government explains that as the relevant judicial process regarding the allegations of termination of contracts in this case has not yet been concluded, no administrative procedure needs to be instigated.

Observation on the matters raised by the Deri-Is Union

1. 1118. The Government explains that the allegations of acts of anti-union discrimination at the DESA Deri Sanayil Tic. Ltd have been examined by labour inspectors of the Ministry of Labour and Social Security. It refers to the following findings:
   • (i) There have been no deductions from wages for union membership fees.
   • (ii) In their confidential statements, witnesses have denied any pressure being put on them.
   • (iii) No concrete evidence confirming the allegation of the creation at the factory of a joint Workers’ Council in order to hinder freedom of association rights has been found.
   • (iv) The allegation that the terms of the agreement reached by the company and the union on 24 August 2009 providing for reinstatement of six workers and the recognition of the Deri-Is as the single authorized union at the factory were not upheld is a matter that needs to be handled by the courts. Therefore, no administrative procedure needs to be instigated in this respect.
   • (v) Thirty-seven out of 41 dismissed workers have initially filed a case against the employer, but later, six workers have withdrawn their complaints. The court ruled against three workers (one of them has filed an appeal) and in favour of 28 workers. The employer filed an appeal against the verdicts concerning four workers and these proceedings have not yet been concluded. Seventeen out of the remaining 24 workers have made an application for reinstatement: three have been reinstated and 14 have received compensation in lieu of reinstatement. The remaining seven workers have not made an application. As the judicial process has not yet been concluded, no administrative procedure needs to be instigated.

C. The Committee’s conclusions

1. 1119. The Committee notes that the complainant organization alleges that two enterprises, Menderes Tekstil and Desa Der Sanayi ve Ticaret AS, initiated anti-union campaigns involving acts of harassment and intimidation, and dismissals to deter workers from organizing and that national legislation unduly restricts the rights to organize and collective bargaining and fails to provide adequate protection against acts of anti-union discrimination and interference. The Committee notes the information provided by the Government with respect to the findings of the labour inspection carried out at both undertakings and the national legislative framework.
2. 1120. With regard to the allegations concerning the first enterprise, the Committee observes that the case concerning five dismissed workers is now pending before the High Court of Appeal, following the 21 October 2009 ruling by the Labour Court, which considered that it had not been proven that the workers had been dismissed as a result of their union activity, given that the company was in the process of downsizing. The Committee notes the findings of the labour inspection carried out at the enterprise, as described by the Government, according to which workers’ contracts were terminated because of their refusal to be reassigned as per the employer’s decision following the downsizing of the company. According to the Government, the labour inspection report also indicates that the workers concerned have received compensation. The Committee notes from the Government’s reply that relevant court cases concerning termination of employment are still pending. The Committee requests the Government to keep it informed of the outcome of these cases and to transmit a copy of the judgments once they are handed down.
3. 1121. The Committee notes the complainant’s allegation that the enterprise in question refused to meet with the union to discuss the issue of downsizing and other labour-related matters, as well as to recognize the union for collective bargaining purposes. It further alleges that instead, the company adopted an anti-union attitude by preventing union activists from handing out leaflets, playing loud music to disturb trade union activists trying to address workers at the factory gates, insulted union organizers in front of workers and generally tried to intimidate them. The Committee notes that, according to the Government, the labour inspectors were under the impression that the employer has not put any pressure on workers. The Committee further notes the Government’s indication that no administrative procedure needs to be initiated into these allegations as the case was currently under judicial review. The Committee recalls that the tactics on the employer’s behalf as alleged by the complainant, if proven to be true, are tantamount to interference in trade union internal affairs and recalls in this regard that respect for the principles of freedom of association requires that employers exercise great restraint in relation to intervention in the internal affairs of trade unions. The Committee considers that in cases where staff reduction is envisaged, prior negotiations should take place between the enterprise concerned and the relevant trade union organization. Noting that only the cases concerning allegations of unlawful termination of employment are currently pending before the courts, the Committee requests the Government to institute an investigation into the allegations of the employer’s refusal to meet with the union to discuss the issue of downsizing and the general allegation of anti-union discrimination. Observing that Teksif is the only union at the enterprise, it further requests the Government to take the necessary measures so that the enterprise management recognize it so as to allow both parties to work together to achieve sound labour relations at the enterprise. The Committee requests the Government to keep it informed in this respect.
4. 1122. As regards the allegations involving the second enterprise, the Committee notes the ITGLWF’s indication that the unlawful nature of the dismissals is not in question as the courts found that in 34 out of 43 cases submitted, the workers had been dismissed because of their union membership and ordered the company to either reinstate the workers with four months’ back pay or pay a compensation equivalent to 16 months of salary. The complainant indicates that out of the remaining nine cases, two were rejected because the workers concerned had been employed for less than six months; six cases were dropped after the workers concerned received inducements from the employer (three of those were subsequently reinstated, while others received money) and one case was rejected because the worker concerned had signed a letter of resignation as well as a letter saying that he was leaving the company of his own free will (the union has appealed this case in view of the fact that the letter was signed under pressure). The company appealed the Labour Court’s rulings but the Supreme Court rejected the appeal. To date, 32 appeal cases have found in favour of the workers, while two are still pending. The ITGLWF indicates that the company opted to pay compensation to 15 workers, reinstated five, and agreed to reinstate four others, but then failed to uphold the agreement and refused to reinstate the latter four workers. The ITGLWF alleges that anti-union discrimination continues to this day and that a union member was dismissed in May, while others have been harassed, given warnings and reassigned to other sections.
5. 1123. The Committee notes the information submitted by the Government on the findings of the labour inspectorate in relation to these allegations. Noting the divergence between the information provided by the Government, and the complainant’s allegations as to the number of workers involved, the Committee requests both the complainant and the Government to provide further information to clarify this matter.
6. 1124. The Committee further notes from the information collected during the inspection that it appears that an agreement between the union and the company in August 2009 providing for the reinstatement of six workers and the recognition of the Deri-Is as the single representative union at the factory was not upheld by the employer. The inspection report considered, however, that this matter should be reviewed by the court and that, accordingly, there was no need to initiate an administrative procedure.
7. 1125. Recalling that no one should be penalized for carrying out or attempting to carry out legitimate trade union activity, the Committee expresses its deep concern at the apparent persistent refusal on the part of the employer to reinstate or compensate the dismissed workers despite the judicial decision in this respect. The Committee considers that such an attitude of the employer constitutes a serious violation of freedom of association rights. Further recalling that the dismissals date back to 2008, the Committee requests the Government to take the necessary measures without delay to ensure the implementation of the relevant court judgments so that all the dismissed trade union members in this case are reinstated in their posts or provided the ordered compensation and to keep it informed in this respect. It further requests the Government and the complainant to keep it informed of the status of the two dismissal cases which were appealed by the employer, the cases appealed by the union, as well as of the situation of the worker allegedly dismissed in May 2010.
8. 1126. With regard to the ITGLWF allegation that the enterprise management had set up a joint Workers’ Council to undermine unionists’ efforts and that its representatives had been appointed by the employer, the Committee notes that, according to the information provided by the Government, the labour inspection report states that “no concrete evidence confirming the allegation of the creation at the factory of a joint Workers Council in order to hinder freedom of association rights has been found”. The Committee requests the Government to further clarify this information and, in particular, to indicate whether a joint Workers’ Council has been established at the enterprise and whether it is currently functioning.
9. 1127. With regard to the allegations of pressure, the Committee notes that according to the Government, the labour inspection report states that “in their confidential statements, witnesses have denied any pressure being put on them”. The Committee requests the Government to provide further detailed information as to the workers interviewed and the specific inquiry into the allegation of harassment of workers of the enterprise through, in particular, warnings and reassignments to other sections and calling the union a “terrorist” organization.
10. 1128. With regard to the legislative issues raised in this case, the Committee recalls that on several occasions it had before it cases concerning Turkey raising similar matters. Likewise, the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards for a number of years have been commenting on several provisions of Act No. 2821 on trade unions and Act No. 2822 on collective labour agreements, strikes and lockouts.
11. 1129. More specifically, the Committee recalls that in Cases Nos 1810 and 1830 it had examined the dual criteria applied in order to determine the representative status of a union for the purposes of collective bargaining and considered, on that occasion, that Turkish legislation did not have the effect of promoting and stimulating unhindered collective bargaining at the level of the undertaking [see 303rd Report, para. 57]. It therefore requested the Government to amend section 12 of Act No. 2822, according to 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 observes that the Committee of Experts has also requested the Government to amend the abovementioned provision 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. The Committee further observes that the Committee of Experts had on numerous occasions requested the Government to amend the legislative provision requiring the intervention of a public notary to become a member of a trade union or to resign from it, which prevented the free exercise of the rights under Article 2 of Convention No. 87.
12. 1130. The Committee notes the Government’s indication of its intention to amend Acts Nos 2821 and 2822 so as to bring it in to line with Conventions Nos 87 and 98 and the newly amended Constitution. The Committee expects that, in consultation with the social partners, the Government will bring its legislation and practice into line with the principles of freedom of association, as repeatedly requested by the ILO supervisory bodies, in the very near future. The Committee suggests to the Government that it continue to avail itself of ongoing ILO technical assistance in this regard and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
13. 1131. The Committee notes that the complainant also alleges that the labour legislation does not provide for sufficient protection against acts of interference and anti-union discrimination. The Committee regrets that no specific information has been provided by the Government on the measures taken to address this point in the framework of the indicated revision of the labour legislation. The Committee therefore expresses the hope that this issue will be adequately addressed in consultation with the social partners in the very near future so that any relevant proposals may be considered within the framework of the current review of the labour legislation.

The Committee’s recommendations

1. 1132. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the allegations concerning Menderes Tekstil enterprise, the Committee requests the Government:
     • – to keep it informed of the outcome of the dismissal cases pending before the High Court of Appeal and to provide a copy of the judgments once they are handed down;
     • – to institute an investigation into the allegations of the employers’ refusal to meet with the union to discuss the issues of company downsizing and the general allegation of anti-union discrimination; and
     • – to take the necessary measures so that the enterprise management recognize Teksif so as to allow both parties to work together to achieve sound labour relations at the enterprise.
   • (b) With regard to the allegations concerning Desa Der Sanayi ve Ticaret AS enterprise, the Committee:
     • – noting the divergence between the information provided by the Government and the complainant’s allegations as to the number of workers involved, requests both the complainant and the Government to provide further information to clarify this matter;
     • – requests the Government to take the necessary measures without delay to ensure the implementation of the relevant court judgments so that all the dismissed trade union members are reinstated in their posts or provided the compensation ordered by the court;
     • – requests the Government and the complainant to keep it informed of the status of the two dismissal cases which were appealed by the employer, the cases appealed by the union, as well as of the situation of the worker allegedly dismissed in May 2010;
     • – requests the Government to indicate whether a joint Workers’ Council has been established at the enterprise and whether it is currently functioning; and
     • – requests the Government to provide further detailed information as to the workers interviewed and the specific inquiry into the allegation of harassment of workers of the enterprise through, in particular, warnings and reassignments to other sections and calling the union a “terrorist” organization.
   • (c) The Committee expects that, in consultation with the social partners, the Government will bring its legislation and practice into line with the principles of freedom of association, as repeatedly requested by the ILO supervisory bodies in the very near future and requests the Government to intensify its efforts in this regard.
   • (d) The Committee requests the Government to keep it informed in this respect of the measures taken to implement the above recommendations.
   • (e) The Committee suggests to the Government that it continue to avail itself of ongoing ILO technical assistance.
   • (f) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.