Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 368, Juin 2013

Cas no 2976 (Türkiye) - Date de la plainte: 15-AOÛT -12 - En suivi

Allegations: The complainant alleges that since the beginning of 2012 no union has obtained a certificate of competence, which resulted in the de facto suspension of collective bargaining rights in the country and a situation where unions cannot appoint their representatives, benefit from check-off facilities, and protect their members from acts of discrimination and intimidation

1. 827. IndustriALL Global Union submitted its complaint in a communication dated 15 August 2012.
2. 828. The Government sent its observations in a communication dated 28 January 2013.
3. 829. 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. 830. In its communication dated 15 August 2012 IndustriALL Global Union, which represents more than 50 million workers throughout manufacturing, mining and energy sectors in some 140 countries, including 19 Turkish trade unions (Tes-İş, Belediye-İş, Petrol-İş, Turkiye Maden-İş, Birlesik Metal-İş, Lastik-İş, Seluloz-İş, Kristal-İş, Genel Maden-İş, Cimse-İş, Tumka-İş, Teksif, Oz Iplik-İş, Celik-İş, Tekstil, Deri-İş, Dok Gemi-İş, Turk Enerji-sen, Turk Tarim Orman-Sen) alleges the de facto suspension of collective bargaining rights in Turkey. The complainant explains that according to the Turkish legislation, the collective bargaining process begins with a certificate of competence issued by the Ministry of Labour and Social Security. However, since the beginning of 2012, the Ministry has not issued any certificate of competence for any trade union, including affiliates of IndustriALL Global Union, which makes it de facto impossible for workers to exercise their collective bargaining rights. The union considers that this situation is contrary to Convention No. 98, Turkey’s Constitution, as well as the Collective Labour Agreement, Strike and Lock-out Act (Act No. 2822). The complainant alleges that the number of workplaces for which a certificate of competence was not issued has reached some 950 covering 350,000 workers.
2. 831. The complainant refers to article 53 of the Turkish Constitution, which stipulates that:
   • Workers and employers have the right to conclude collective bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work. The procedure to be followed in concluding collective bargaining agreements shall be regulated by law.
3. It further refers to the following relevant sections of Act No. 2822:
   • Section 12. A workers’ trade union representing at least ten 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 power to conclude a collective labour agreement covering the establishment or the establishments in question. In the case of enterprise collective labour agreements, the establishments shall be considered as one whole unit in the calculation of more than half majority. ... The statistics published by the Ministry of Labour and Social Security in January and July of each year shall be the instrument used in calculating ten per cent of the workers engaged in a given branch of activity. The total number of workers engaged in a branch of activity and the membership figures of each of the trade unions in that branch as indicated in the statistics shall be valid for the purposes of collective agreements and other formalities until the next statistics are published. The competence of a workers’ trade union that applied for or obtained a certificate of competence shall not be affected by statistics subsequently published.
   • Section 13. A workers’ trade union that considers itself competent to conclude a collective labour agreement shall make application in writing to the Ministry of Labour and Social Security, requesting the ministry to determine that its membership within the branch of activity (excluding the branch of activity covering agriculture, forestry, hunting and fishing) in which the union is constituted represents at least ten per cent of the workers engaged in that branch, and to determine the number of workers employed and the number of members in the establishment or establishments to be covered by the agreement as of the date of such application. The workers’ trade union shall give the membership forms in its keeping to the employer within three working days as of the date of its application to the Ministry of Labour and Social Security for the determining of competence. Where the trade union has the required majority according to the records of the Ministry of Labour and Social Security, the Ministry shall communicate the application, together with the number of workers employed and the number of union members in each establishment concerned, to other workers’ unions constituted in the same branch of activity and to employers’ unions and employers not belonging to such unions who shall be a party to the agreement, within six working days of receiving the application, as indicated in the records of the ministry at the date of the application. Where the Ministry determines that the trade union does not have the required majority, this information shall be communicated only to the applicant union within the same time limit.
   • Section 16. The Ministry of Labour and Social Security shall issue a certificate of competence to the union concerned within six working days after the expiry of the time limit allowed for an appeal if no appeal has been lodged, or within six working days of receiving notice of the decision if the court rejects the appeal.
4. The complainant explains that despite these mandatory legislative provisions, the Ministry of Labour and Social Security of Turkey has not published labour statistics since 2009. This was legally possible until the end of 2011, as the Turkish Parliament had amended Act No. 2822 by adding a new, provisional, section, according to which, the previous labour statistics would be valid for collective bargaining certifications. However, because the validity of the said temporary section expired, the Ministry, which should have published labour statistics, failed to do so.
5. 832. Consequently, the complainant considers that the right to bargain collectively is de facto suspended in Turkey because of an arbitrary and illegal administrative decision of the Ministry of Labour and Social Security. Hundreds of thousands of workers and their unions cannot exercise their right of collective bargaining and negotiate their wages, social benefits and other conditions of work, which makes trade unions vulnerable in defending and enhancing their rights and interests. The complainant refers, among others, to the case of its affiliate, Oil, Chemical and Rubber Workers’ Trade Union of Turkey (Petrol-İş), which has applied to the Ministry to get a certificate of competence for the following workplaces:
   • 1. Erze Ambalaj ve Plastik Sanayi ve Ticaret A.S. (application date: 13 January 2012);
   • 2. Gripin ilag A.S. (application date: 17 February 2012);
   • 3. Saba Endustriyel Urunler imalat ve Ticaret A.S. (application date: 24 February 2012);
   • 4. Elba Bant Sanayi ve Ticaret A.S. (application date: 2 March 2012);
   • 5. Arili Plastik Sanayii A.S. (application date: 4 May 2012);
   • 6. Reckitt Benckiser Temizlik Malzemeleri San. Ve Tic. A.S. (application date: 4 May 2012);
   • 7. Urosan Kimya San. Ve Tic A.S. (application date: 4 May 2012);
   • 8. Akin Plastik San. Ve Tic. A.S. (application date: 4 May 2012);
   • 9. Sandoz ilag San. Ve Tic. A.S. (application date: 4 May 2012);
   • 10. Plastimak Plastik Profil Enjeksiyon San. Ve Ticaret Ltd.Sti. (application date: 15 May 2012);
   • 11. PIastiform Plastik Sanayi ve Ticaret A.S. (application date: 22 May 2012);
   • 12. Plaskar Plastik Enjeksiyon Otomotiv Yedek Parga Nakliye Ambalaj Kalip Sanayi ithalat Ihracat Ticaret ve Sanayi A.S. (application date: 22 May 2012);
   • 13. Mehmetşik Vakfi Turizm, Petrol, insaat Saglik Gida ve Ticaret Ltd.Sti. (application date: 20 June 2012).
6. 833. The complainant also alleges that trade unions that cannot get a certificate of competence are unable to collect union dues. In this respect, it refers to section 61 of the Trade Unions Act (Act No. 2821), according to which:
   • At the written request of the workers’ trade union which is a party to the collective labour agreement in force in the undertaking or of the workers’ trade union which has obtained the certificate of competence to bargain, if the collective labour agreement is terminated or not concluded, and upon receipt of the list of union member workers whose contributions are to be deducted, the employer shall be bound to deduct the members’ contribution fixed by the statute of the union and the solidarity contribution to be paid to the trade union under the Act respecting collective labour agreements, strikes and lock-outs from their wages, and to submit to the trade union a list of the workers whose contributions have been so deducted, indicating the type of the contribution and to transfer the amount of deductions to the trade union.
7. Since the deduction of trade union dues is dependent on the existence of a collective agreement or certificate of competence, according to the complainant, this situation endangers the viability of trade unions from a financial point of view.
8. 834. Furthermore, trade unions that cannot get a certificate of competence are unable to appoint trade union representatives. In this respect, the complainant refers to section 34 of Act No. 2821, according to which:
   • A trade union, whose competence to conclude the collective labour agreement is certified, shall appoint trade union representatives from among its members at the establishment in the following manner, and shall provide the names of such union representatives to the employer within 15 days.
9. The appointment of trade union representatives is therefore dependent on the existence of a collective agreement or certificate of competence; thus, according to the complainant, this situation endangers the viability of trade unions from an organizational point of view.
10. 835. Finally, according to IndustriALL Global Union, because the current de facto suspension of collective bargaining rights in Turkey, workers cannot exercise their freedom of association rights. Since trade unions cannot deliver any service and protection to their members in newly organized workplaces, workers are very reluctant to join trade unions since they become subject to dismissals and intimidation. The complainant alleges that there is a number of cases of this kind and refers, in particular, to the following two cases involving its affiliates:
    • ■ The Leather and Shoe Workers’ Union of Turkey (Deri-İş) recruited the majority of workers at Togo Ayakkabi Sanayi ve Ticaret A.S., located in Ankara, and applied for certification at the beginning of April. As soon as the management heard about the union organizing activity, 35 union members were dismissed at the beginning of May 2012. The dismissed workers are still picketing under massive and regular attacks, pressure and intimidation by security forces. Since the Ministry of Labour and Social Security has not issued a certificate of competence, Deri-İş cannot defend and protect the rights of its members at the enterprise.
    • ■ The United Metal Workers’ Union (Birlesik Metal-İş) recruited the majority of workers at Ceha Buro Mobilyalari Ltd.Sti., located in Kayseri, and applied for certification in the beginning of 2012. As soon as the management learned about the union organizing activity, 20 members were dismissed. Since the Ministry of Labour and Social Security has not issued a certificate of competence to the union, it cannot defend and protect the rights of its members at the enterprise.
11. IndustriALL Global Union wrote a letter to the Minister of Labour and Social Security in respect of both of these cases, but received no answer.

B. The Government’s reply

1. 836. In its communication dated 28 January 2013, the Government indicates that the complainant’s allegations refer to the situation which existed before Act No. 6356 on Trade Unions and Collective Labour Agreements was enacted on 18 September 2012 and came into force on 7 November 2012. The Government nevertheless replies in detail to the complainant’s allegations.
2. 837. With regard to the right to collective bargaining, the Government refers to article 53 of the Turkish Constitution and related provisions of Act No. 2822. It indicates, in particular, that in accordance with section 12, the statistics published by the Ministry of Labour and Social Security in January and July of each year shall be the instrument used to calculate the 10 per cent of the workers engaged in a given branch of activity. Following the amendment of Act No. 5838 (Act dated 18 February 2009 amending various acts), the statistics could not be published by the Ministry in January and July of each year due to the lack of related legislative regulations. As no amendment could be made to Acts Nos 2821 and 2822, a provision was added to section 12 of Act No. 2822 through the adoption of Act No. 5921, which came into effect on 28 January 2010, requiring the Ministry to use statistics existing on 1 August 2010. With the regulation adopted pursuant to Act No. 6111, which came into effect on 25 February 2011, it was further resolved that no new statistics would be published until 30 June 2011 and that the last membership and worker statistics published by the Ministry shall be considered valid until the following publication date of statistics. In the framework of Act No. 6236 (Act to add a temporary section to Act No. 2822 on collective agreements, strikes and lockouts), it was further determined that no statistics would be published until 31 December 2011 and that the latest membership and workers statistics published by the Ministry would be considered valid until the following publication date of statistics after this date. However, in the absence of the statistics that should have been published in January 2012 and in absence of a new suspension period, the demands of trade unions applying for competence for the purpose of collective bargaining in a workplace or enterprise could not be met. While trade unions’ applications to the Ministry for the determination of competence could not be processed in accordance with section 13 of Act No. 2822, and certificates of competence could not be issued in accordance with its section 16, the Government considers that the Ministry of Labour and Social Security has not neglected its duty with regard to the publication of statistics.
3. 838. The Government further indicates that intensive studies have been carried out in the process of drafting Act No. 6356 on Trade Unions and Collective Labour Agreements during meetings of the tripartite consultation board and technical committee with the view to bringing the legislation dealing with trade union rights into conformity with the ILO and European Union standards. According to the Government, the Act was drafted in consultation with the social partners. The Government further indicates that after the entry into force of Act No. 6356, the statistics will begin to be published regularly and that all records will be kept electronically.
4. 839. With regard to the case of the Petrol-İş Union, the Government confirms that the union has applied to the Ministry for a certificate of competence in some workplaces. It also indicates that as of 1 October 2012, there were 1,688 applications waiting for certificates of competence, which represents 349,226 workers. The Government points out, however that the procedures for the determination for competence, which, due to the abovementioned reasons, came to a deadlock temporarily, will recommence with the entry into force of the new Act. Thus, the applications filed by the Petrol-İş for the competence certificates for the following workplaces will be examined urgently:
   • 1. Gripin Pharmaceutical Co.
   • 2. Elba Plaster Industry and Trade Inc.
   • 3. Arili Plastic Industry Inc.
   • 4. Saba Industrial Products Manufacturing and Trade Inc.
   • 5. Reckitt Benckiser Cleaning Supplies Industry and Trade Inc.
   • 6. Urosan Chemical Industry and Trade Inc.
   • 7. Akin Plastic Industry and Trade Inc.
   • 8. Sandoz Pharmaceutical Industry and Trade Inc.
   • 9. Plastimak Profiled Injection Industry and Trade Limited Co.
   • 10. Plaskar Plastic Injection, Automotive, Accessories, Transport, Packaging, Molding Industry, Import, Export, Trade and Industry Inc.
   • 11. Mehmetcik Foundation Tourism, Oil, Instruction, Health, Food and Trade Limited Co.
5. However, according to the Government, when some of the records of the Ministry have been examined, other questions have emerged with regard to the following workplaces mentioned in the Petrol-İş’ applications:
   • ■ Erze Packaging and Plastic Industry and Trade Inc.: Petrol-İş filed an application for the determination of competence on 19 December 2011. However, as the union has objected to the prior competence determination (turned down due to the absence of a required quorum), and in this respect, a case was pending before the Izmir Fifth Labour Court, the union was requested to communicate a “ruling of specific annotation”. While subsequently, on 13 January 2012, the union notified that nine more members were registered so as to fulfil the required quorum, the union was reminded that it should communicate the “ruling of specific annotation” by a letter dated 2 March 2012; the union has so far failed to do so.
   • ■ Plastiform Plastic Industry and Trade Inc.: an application for the determination of competence was made on 22 May 2012. However, when the relevant records were examined, it appeared that the Inegol Chief Public Prosecutor’s Office was investigating allegations of violations of trade union rights at the enterprise.
6. 840. With regard to the allegation that without a certificate of competence, unions cannot benefit from check-off facilities, the Government indicates that with the enactment of the new legislation, there will be no problem for trade unions to collect trade union dues.
7. 841. With regard to the complainant’s allegation that the unions which cannot obtain a certificate of competence cannot appoint union representatives and that this situation endangers the sustainability of the unions organizationally, the Government referred to section 34 of Act No. 2821, which indeed requires the union to have a competence certificate in order to appoint a shop steward. The Government agrees that the duty of being a shop steward continues during the union’s competence and that this situation poses a problem for the workplaces which have made a request for the determination of competence as of February 2012. The Government indicates, however, that the Ministry will start working on the determination of the authorized unions. With the enactment of the new legislation, trade unions having been granted competence certificates will be able to assign their representatives.
8. 842. With regard to the allegation that the suspension of collective bargaining rights hinders workers’ freedom of association rights, the Government provides the following information in respect to the enterprises mentioned in the complaint:
   • ■ Togo Footwear Industry and Trade Inc.: it appears from the records of the Ministry that in order to conclude a collective bargaining agreement at the enterprise, Deri-İş applied to the Ministry for a competence determination on 4 April 2012. However, as explained above, as of 1 February 2012, no such determination could be made. A case has been opened at the Ankara Third Labour Court to examine the allegation that 35 workers were dismissed by the employer following the application of Deri-İş to the Ministry. Following an examination of the Ministry’s records concerning the workplace, it appeared that as of 16 November 2011, 56 workers were employed by the enterprise; however, there was no information on the number of trade union members. The Government further indicates that as of 4 April 2012, 33 out of 59 workers were union members. Deri-İş applied to the Presidency of the Grand National Assembly of Turkey Human Rights Investigation Commission alleging that all workers who were trade union members were dismissed. A case was also opened at the labour court. No application has been made to the Provincial Directorate of Labour and Employment Agency in Ankara regarding this issue.
   • ■ Ceha Office Furniture Limited Company: United Metal Workers’ Union applied to the Ministry on 5 March 2012 in order to determine to which branch of activity the enterprise related. Following inspections conducted by the labour inspectors of the Ministry, it was determined that the aforesaid workplace was in the metal branch with a sequence number of 13 of the “Regulation of Branches of Activity”. The union asserted that workers were dismissed following the application for a competence certificate. Following an inquiry conducted by the Provincial Directorate of Labour and Employment Agency in Kayseri, it was determined that the contracts of 20 workers were terminated by means of paying their severance and notice pays. It was concluded, however, that no worker was dismissed due to his or her trade union activities.

C. The Committee’s conclusions

1. 843. The Committee notes that the complainant in this case, IndustriALL Global Union, alleges that since the beginning of 2012 no union has obtained a certificate of competence, which has resulted in the de facto suspension of collective bargaining rights in the country and a situation where unions cannot appoint their representatives, benefit from check-off facilities, and protect their members from acts of discrimination and intimidation. The Committee notes the detailed reply provided by the Government thereon and observes that in general, the Government does not refute the complainant’s allegations.
2. 844. The Committee regrets the de facto suspension, in 2012, of collective bargaining rights in the country, triggering the suspension of the right to check-off facilities and the right to elect representatives, and recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 881]. The Committee notes, however, the Government’s indication that the complainant’s allegations refer to the situation which existed before Act No. 6356 on Trade Unions and Collective Labour Agreements was adopted on 18 September 2012 and came into force on 7 November 2012 and that following the entry into force of this new legislation, all applications for the determination of competence will be examined, including those referred to by the complainant trade union. According to the Government, this will resolve the issues of collective bargaining, check-off facilities and the trade union representation – points raised by the complainant. While noting that allegations concerning Act No. 6356 have been recently lodged in the context of another case, which it will examine once the Government’s reply thereon has been received, the Committee expects that all applications for the determination of competence to bargain collectively, including those mentioned in the complaint, will be examined without delay so as to ensure that workers can exercise their collective bargaining rights, enjoy the right to elect their representatives, and benefit from check-off facilities provided for by the national legislation. The Committee requests the Government and the complainant to keep it informed in this respect. With regard to the Plastiform Plastic Industry and Trade Inc., the Committee notes that according to the Government, an investigation into the allegations of violations of trade union rights at the enterprise was taking place and considers that this should not preclude the Ministry from examining the application for the determination of competence submitted by Petrol-İş.
3. 845. With regard to the dismissal of 35 workers from the Togo Footwear Industry and Trade Inc., the Committee notes the Government’s indication that while the union has applied to the Presidency of the Grand National Assembly of Turkey Human Rights Investigation Commission and that a labour court case is pending in this regard, no application has been made to the Provincial Directorate of Labour and Employment Agency in Ankara. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., paras 769 and 817]. The Committee trusts that any information relating to the alleged anti-union nature of the dismissal will be considered by the court bearing in mind the principles above and expects that the decision will be handed down in the very near future. The Committee also expects that if anti-union discrimination is established, the workers concerned will be reinstated without loss of pay. If reinstatement is not possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the workers concerned are paid an adequate compensation which would represent a sufficiently dissuasive sanction for anti-union discrimination. It requests the Government to provide the court judgment as soon as it is handed down, as well as a copy of the findings of the Human Rights Investigation Commission.
4. 846. With regard to the dismissal of 20 workers from the Ceha Office Furniture Limited Company, the Committee notes the Government’s indication that an inquiry has been conducted by the Provincial Directorate of Labour and Employment Agency in Kayseri, which determined that while the contracts of 20 workers were terminated by means of paying their severance and notice pays, no worker was dismissed due to his or her trade union activities. Referring to the above-cited principles, the Committee requests the Government to provide a copy of the inquiry’s report.

The Committee’s recommendations

1. 847. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that all applications for the determination of competence to bargain collectively, including those mentioned in the complaint, will be examined without delay so as to ensure that workers can exercise collective bargaining rights, enjoy the right to elect their representatives, and benefit from check-off facilities provided for by the national legislation. The Committee requests the Government and the complainant to keep it informed in this respect.
   • (b) With regard to the dismissal of 35 workers from the Togo Footwear Industry and Trade Inc., the Committee trusts that any information relating to the alleged anti-union nature of the dismissal will be considered by the courts bearing in mind the principles above and expects that the decision will be handed down in the very near future. The Committee also expects that if anti-union discrimination is established, the workers concerned will be reinstated without loss of pay. If reinstatement is not possible for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the workers concerned are paid an adequate compensation which would represent a sufficiently dissuasive sanction for anti-union discrimination. It requests the Government to provide the court judgment as soon as it is handed down, as well as a copy of the findings of the Human Rights Investigation Commission.
   • (c) With regard to the dismissal of 20 workers from the Ceha Office Furniture Limited Company, the Committee requests the Government to provide a copy of the inquiry’s report.