Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Türkiye (Ratification: 1952)

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.