Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 335, Novembre 2004

Cas no 2303 (Türkiye) - Date de la plainte: 02-OCT. -03 - Clos

Allegations: The complainant alleges that: (1) the Pasabahce Eskisehir Glassware Industries and Trade Limited Company dismissed 296 trade union members on anti-union grounds; and (2) the Government violated the complainant’s right to strike by issuing Decree No. 2003/6479 to suspend a major strike in the glass industry on grounds of national security

1. 1357. The complaint is contained in communications from the Glass, Cement and Soil Industries Workers’ Union (KRISTAL-IS) dated 2 October, 3 November and 12 December 2003.
2. 1358. The Government replied in communications dated 13 April and 18 May 2004.
3. 1359. Turkey has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1360. In a communication dated 2 October 2003, the Glass, Cement and Soil Industries Workers’ Union (KRISTAL-IS) alleges that, on 15 September 2003, 700 glass workers from Pasabahce Eskisehir Glassware Industries and Trade Limited Company became union members, including subcontracting workers, who were employed contrary to the Labour Code. On 27 September 2003, the employer dismissed 246 of them and employed new workers in their place. The complainant attaches a list with the names of the dismissed workers as well as the dates on which they joined the union and on which they were dismissed.
2. 1361. The complainant alleges that the dismissals, which were in violation of national law regarding termination of employment, aimed to undermine the union and prevent it from reaching the 51 per cent representativeness requirement provided in section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822. The complainant adds that, due to this provision, trade unions which do not fulfil the 51 per cent criterion are totally deprived of the essential means for defending the interests of their members and that this situation violates in practice the right of workers to join organizations of their own choosing and implies a certain restriction for the right to organize and to strike.
3. 1362. In a communication dated 3 November 2003, the complainant adds that another 50 trade union members were unfairly and unjustifiably dismissed due to their trade union activities and membership, bringing the total number of dismissed union members to 296. The workers in question had joined the trade union on 8 and 9 September 2003 and were dismissed between 30 September and 10 October 2003. The complainant attaches a list of the names of the dismissed members, as well as the dates on which they joined the union and on which they were dismissed.
4. 1363. In a communication dated 12 December 2003, the complainant alleges that on 8 December 2003 the Government issued Decree No. 2003/6479 to suspend, on the grounds of “national security” and for 60 days, a major strike in the entire glass industry (13 companies, 90 per cent of total glass production of Turkey and 5,000 workers) which was to take place on 9 December 2003. The Decree was based on section 33 of Act No. 2822 which allows the Government to suspend any strike for 60 days if it is deemed to endanger “national security and public health”. The complainant expresses the view that there is no reasonable connection between the glass industry and the country’s national security and that the real reason for the Decree was the demands made by the glass and car-maker employers. The complainant attaches press clippings with declarations by ministers on this issue.
5. 1364. The complainant claims that this strike has been suspended twice in the last two years as, on 8 June 2001, the Government banned another strike in the glass sector for the same reason. The complainant considers that this practice amounts to a serious and systematic violation of the right to strike and makes reference to occasions in which strikes were suspended over the last ten years for reasons of national security or public health in the glass and rubber sector (8 December 2003, 25 June 2003, 27 May 2002, 8 June 2001, 5 May 2000), the municipality services (24 August 2000) and state-run undertakings (16 October 1995).
6. 1365. Finally, the complainant alleges that suspension of any strike under the law usually means an indefinite ban in practice, since the law empowers the Labour Ministry to impose compulsory arbitration at the end of 60 days, unless the parties have either come to an agreement or voluntarily sought arbitration. The complainant concludes that section 33 of Act No. 2822 is not in conformity with Convention No. 87 and should be modified immediately as noted in the reports of the Committee of Experts on the Application of Conventions and Recommendations as well as the Committee on Freedom of Association. In this respect, the complainant notes that, despite the promises made by the Government for many years, there is no meaningful improvement to change the current labour legislation.

B. The Government’s reply

1. 1366. In a communication dated 13 April 2004, the Government indicates, with regard to the allegations concerning the dismissal of 50 trade union members, that the complainant brought this issue to the Ministry of Labour and Social Security and to the Labour Directorate of the Province of Eskisehir on 29 and 30 September 2003. The Directorate conducted an investigation on the complaint on 6, 7 and 14 November 2003. The main points raised in the investigation report dated 19 December 2003 are the following:
   • - The principal employer in the workplace is Pasabahce Eskisehir Glassware Industry and Trade Limited Company; the subcontractor is Metro Limited Company. Two unions, including the complainant, are in activity in the workplace and are affiliated to the confederation of TÜRK-IS.
   • - Upon the termination of their contracts, all of the 50 workers mentioned in the complainant’s communication dated 3 November 2003 filed a lawsuit in accordance with section 25/II of Labour Act No. 4857 (which concerns the justified grounds for immediate termination of employment) at the 8th Istanbul Industrial Court.
   • - Contrary to the complainant’s allegations, none of the union members’ contracts was terminated by the principal employer. Rather, the contract was signed for a fixed duration of one year with the subcontractor company Metro Limited Company and ended on 30 September 2003. The contract was not renewed by the principal employer (Note: The principal employer is the Pasabahce Eskisehir Glassware Industry and Trade Limited Company). The report found that there was no fraudulent termination of employment.
   • - The report found that the main reason for the complaints was the actual struggle between the union officers and the union members.
   • - Since an infringement of section 29 of the Labour Act was determined (Note: This section applies in case of mass dismissals and establishes an obligation to notify the trade union and undertake consultations), an administrative fine of a total 40,000 euros was imposed on Metro Limited Company for the dismissal of 308 workers.
   • - All the conclusions of the investigation have been duly communicated to the union.
2. 1367. As to the allegations concerning the suspension of the strike which was to be carried out at the workplaces of the Pasabahce Eskisehir Glassware Industry and Trade Limited Company, the Government states that the complainant lodged an appeal to the 10th Department of the Council of State against the decision of the Council of Ministers to suspend the strike for a period of 60 days on the grounds of national security (Case No. 2003/6134). The 10th Department of the Council of State rendered the Decree of the Council of Ministers unenforceable. As a result, the union initiated the strike again on 30 January 2004. However, because of the Decree of the Council of Ministers dated 11 February 2004 (No. 2004/6782), which suspended the strike again, an official mediator was designated for the resolution of the dispute. Through the efforts of the Minister of Labour and Social Security, a consensus has been ensured between the employers and workers’ unions and the union abandoned its decision to strike.
3. 1368. Finally, the Government indicates that studies on the draft Bill so as to amend some sections of the Collective Labour Agreement, Strike and Lockout Act, No. 2822, are currently being carried out by a committee of academics composed of university faculty and the draft Bill has almost been completed. The Government attaches a copy of the draft Bill (in Turkish). It indicates that the draft Bill provides that the Council of Ministers may issue an order to suspend a strike under section 33 of the Act upon receiving an opinion by the Council of State on this issue. Thus, the Government notes that in taking a decision to suspend a strike, the contribution of the judiciary would also be received.

C. The Committee’s conclusions

1. 1369. The Committee observes that this case concerns allegations that: (1) the Pasabahce Eskisehir Glassware Industry and Trade Limited Company dismissed 296 trade union members on anti-union grounds; and (2) the Government violated the complainant’s right to strike by issuing Decree No. 2003/6479 to suspend a major strike in the glass industry on grounds of national security.
2. 1370. With regard to the first set of allegations, the Committee notes that, according to the complainant, on 27 September 2003 the employer dismissed 246 workers who had joined the union a few days earlier and employed new workers in their place. According to the complainant, the employer did so in order to prevent the union from reaching the 51 per cent representativeness requirement which is established in section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822.
3. 1371. The Committee observes that the Government has not provided any information on these allegations. The Committee also notes from the Government’s report, that the Labour Directorate imposed on the employer a fine for violation of section 28 of Labour Act No. 4857, which establishes an obligation to notify the trade union and undertake consultations in case of mass dismissals. Thus, the Committee understands that the Government might have considered this case as one of mass dismissals in which the obligation to notify and hold consultations with the trade union was not respected. However, even if this is the case, the Committee observes that the Government does not comment on the allegations concerning the replacement of the dismissed trade union members with other workers and the purpose of the dismissals which allegedly was to prevent the union from reaching the 51 per cent representativeness requirement. The Committee considers that acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 718]. The Committee is of the view that, where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment; it recalls that it has already observed in a similar case concerning Turkey that the Government needed to amend its legislation in order to ensure a more effective protection of workers against all acts of anti-union discrimination, including dismissal [Digest, op. cit., para. 698 and Case No. 2126, 330th Report, para. 152]. The Committee requests the Government to ensure that the competent labour authorities conduct an investigation promptly into the reasons for which 246 trade union members were dismissed on 27 September 2003 and if it is found that there has been anti-union discrimination, to take all necessary measures with a view to their reinstatement in their posts without loss of pay or, if the competent court were to decide that reinstatement is not possible, to ensure that the dismissed workers receive full compensation for the prejudice suffered. The Committee requests to be kept informed in this respect.
4. 1372. The Committee further notes that, according to the complainant, between 30 September and 10 October 2003 the employer unfairly and unjustifiably dismissed another 50 workers who had joined the union in early September, bringing the total number of workers dismissed on anti-union grounds to 296. The Committee observes from the Government’s response, that the competent Labour Directorate conducted an investigation into these allegations and reached the conclusion that there were no fraudulent dismissals because the workers in question had fixed-term contracts with a subcontractor named Metro Limited Company which expired on 30 September and were not renewed. In this respect, the Committee observes that no provision in Convention No. 98 authorizes the exclusion of staff having the status of contract employee from its scope [Digest, op. cit., para. 802]. Therefore, contract employees are entitled to protection against anti-union discrimination in accordance with Article 1 of Convention No. 98 ratified by Turkey. Thus, the Committee considers that it is not sufficient to state the mere fact that fixed-term contracts were not renewed as proof that there has been no anti-union discrimination. The Committee also notes that it is unable to understand the Government’s statement according to which “the main reason of the complaints was the actual struggle between the union officers and union members”, in the absence of further information. The Committee notes that the 50 trade union members who were dismissed between 30 September and 10 October 2003 have filed a lawsuit for unjustified dismissal at the 8th Istanbul Industrial Court and requests the Government to keep it informed on the progress of the proceedings and to communicate a copy of the final decision once rendered.
5. 1373. The Committee also notes that, according to the complainant, section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822, which establishes the criteria for representational rights, totally deprives the trade unions which do not fulfil its criteria of the essential means for defending their members’ interests. The Committee recalls that it had already requested the Government in an earlier case to amend the criteria set forth in that section so as to bring it into conformity with Conventions Nos. 87 and 98 ratified by Turkey [Case No. 2126, 327th Report, paras. 846 and 847(d)]. The Committee also recalls that, with regard to a provision that stipulates that a collective agreement may be negotiated only by a trade union representing an absolute majority of the workers in an enterprise, the Committee considered that the provision does not promote collective bargaining in the sense of Article 4 of Convention No. 98 and it invited the Government to take steps, in consultation with the organizations concerned, to amend the provision in question, so as to ensure that, when no trade union represents the absolute majority of the workers, the organizations may jointly negotiate a collective agreement applicable to the enterprise or the bargaining unit, or at least conclude a collective agreement on behalf of their members [Digest, op. cit., para. 831]. The Committee requests the Government to amend section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822, so as to bring it in line with the principle according to which, if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members. The Committee requests to be kept informed in this respect.
6. 1374. As to the second set of allegations, the Committee notes that by Decree No. 2003/6479 the Government suspended a strike in the glass industry on the grounds of national security as provided in section 33 of Act No. 2822; nevertheless, according to the complainant, there is no reasonable connection between the glass industry and the country’s national security. The Committee also notes that according to the complainant, the suspension of strikes by applying section 33 of Act No. 2822 to sectors such as rubber and glass, municipality services and state-run undertakings, which have nothing to do with national security or public health, is not an isolated incident but a veritable strategy which amounts to a systematic violation of the right to strike in the country. The Committee further notes that, according to the complainant, a suspension of a strike means an indefinite ban in practice, as the law empowers the Labour Ministry to impose compulsory arbitration in such cases.
7. 1375. The Committee observes from the Government’s response that Decree No. 2003/6479 was rendered unenforceable by a decision of the 10th Department of the Council of State and consequently, the union started the strike on 30 January 2004. However, the Council of Ministers issued a new Decree on 11 February 2004 (No. 2004/6782) which suspended the strike again. Following this, an official mediator was designated and a consensus was reached between the employer and the union.
8. 1376. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 515]. It has also stressed that the imposition of compulsory arbitration is acceptable in cases of acute national crisis. The Committee thus considers that section 33 of Act No. 2822, which allows the Government to suspend a strike and impose compulsory arbitration on the grounds of national security or public health, is not in itself contrary to freedom of association principles as long as it is implemented in good faith and in accordance with the ordinary meaning of the terms “national security” and “public health”. However, the Committee observes that the Government indicated no reason why a strike in the glass industry might be considered as harmful to national security. It also considers that the repeated application of this provision so as to prevent strikes in sectors such as glass and rubber, municipality services and state-run undertakings, which do not appear to have any direct connection to national security or public health, might amount to a systematic violation of the right to strike. The Committee deplores the fact that strikes have been suspended and compulsory arbitration imposed in numerous cases, and requests the Government to ensure in the future that such restrictions may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or an acute national crisis.
9. 1377. The Committee also considers that, in the particular circumstances of this case, responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned. In this respect, the Committee takes note of the Government’s statement that, as a result of the work of a committee of academics, a draft Bill to amend some sections of the Collective Labour Agreements, Strike and Lockout Act, No. 2822, has almost been completed; the draft Bill will provide that, prior to issuing an order to suspend a strike under section 33 of the Act, the Council of Ministers shall receive an opinion from the Council of State. The Committee takes note of the text of the draft Bill which has been attached to the complaint in Turkish. However, the Committee notes that the proposed draft Bill seems to envisage a consultative role for the Council of State as to whether a strike should be suspended and, therefore, does not seem to constitute an improvement in relation to the current legislation on this point; it might even lead to a weakening of the role of the Council of State which, as already seen above, has the power to review the decisions of the Council of Ministers and render them unenforceable. The Committee requests the Government to amend section 33 of Act No. 2822 so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned. The Committee requests to be kept informed in this respect.

The Committee's recommendations

1. 1378. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling that it has already observed in a similar case concerning Turkey that the Government needed to amend its legislation in order to ensure a more effective protection of workers against all acts of anti-union discrimination, the Committee requests the Government to ensure that the competent labour authorities conduct an investigation promptly into the reasons for which 246 trade union members were dismissed on 27 September 2003 and, if it is found that there has been anti-union discrimination, to take all necessary measures with a view to their reinstatement in their posts without loss of pay or, if the competent court were to decide that reinstatement is not possible, to ensure that the dismissed workers receive full compensation for the prejudice suffered. The Committee requests to be kept informed in this respect.
   • (b) Noting that 50 trade union members who were dismissed between 30 September and 10 October 2003 have filed a lawsuit for unjustified dismissal at the 8th Istanbul Industrial Court, the Committee requests the Government to keep it informed on the progress of the proceedings and to communicate a copy of the final decision once rendered.
   • (c) The Committee requests the Government to amend section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822, so as to bring it in line with the principle according to which, if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members. The Committee requests to be kept informed in this respect.
   • (d) The Committee deplores the fact that strikes have been suspended and compulsory arbitration imposed in numerous cases, and requests the Government to ensure in the future that such restrictions may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or an acute national crisis.
   • (e) The Committee requests the Government to amend section 33 of Act No. 2822 so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned.. The Committee requests to be kept informed in this respect.