Effect given to the recommendations of the committee and the Governing Body - Report No 342, June 2006

Effect given to the recommendations of the Committee and the Governing Body

1. 167. The Committee last examined this case at its November 2005 meeting [see 338th Report, paras. 328-339] and on that occasion it had requested the Government to keep it informed: (1) of the measures taken to ensure that the competent labour authorities conduct an independent 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; (2) on the progress of a lawsuit for unjustified dismissal filed by 50 trade union members who were dismissed between 30 September and 10 October 2003 before the 8th Istanbul Industrial Court and to communicate a copy of the final decision once rendered; (3) on the measures taken to amend section 12 of the Collective Agreements, Strike and Lockout Act No. 2822, so as to bring it into 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, or they should be allowed to jointly negotiate a collective agreement applicable to the enterprise or bargaining unit; and (4) of the steps taken to ensure that section 33 of Act No. 2822 is amended so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned.
2. 168. In its communication dated 3 February 2006, the Government once again indicates that the labour inspectors carried out two inspections into the allegations of the Kristal-Is Trade Union. The inspection carried out at the workplace in November 2003 revealed that workers filed a lawsuit alleging infringement of sections 2, 5 and 18 to 21 of Labour Act No. 4875. In these circumstances, no administrative action could be taken as long as a complaint was pending before the court. The inspection recommended that a fine be imposed on the employer for violation of section 29 of the Labour Act. A second inspection, carried out in February 2004, also found that a complaint alleging anti-union discrimination was brought to the competent courts by the workers concerned, therefore, no administrative action could be taken.
3. 169. With regard to the amendment of Acts Nos. 2821 and 2822, the Government indicates that a draft bill on trade unions aiming to simplify and replace Act No. 2821 was presented to the social partners for their views and proposals. A meeting on this subject was held in December 2005. The work on the amendment of Act No. 2822 on collective labour agreements, strikes and lockouts was continuing and it was expected that it would be completed within a short period of time and brought to the attention of the social partners. As regards section 33 of the Act more specifically, the Government referred to the information it provided in Case No. 2329: it is thought to amend section 33 so as to provide that, when taking a decision to suspend a strike, the Council of Ministers shall first seek the opinion of the High Board of Arbitration, rather than of the Council of State.
4. 170. By its communication of 22 March 2006, the Government transmits decisions taken by the first and the second Labour Tribunal of Kartal with regard to the three workers – members of the Kristal-Is Trade Union dismissed from the Pasabahce Glassware Factory in Eskisehir, as well as the judgements of the 9th Department of the Court of Appeal.
5. 171. The Committee notes the information provided by the Government. The Committee recalls that, in its previous examinations of this case, it had already noted that the employer had been fined. The Committee recalls that the allegations in this case concerned dismissals of trade unionists and their replacement with other workers aimed at preventing the union from reaching the 51 per cent representativeness requirement. The Committee notes the Government indication that the dismissed workers lodged lawsuits before the competent courts. The Committee further notes the court decisions transmitted by the Government in respect of three dismissed workers. The Committee notes that the courts concluded that these workers lost their employment on account of their trade union membership. The courts requested the enterprise in question to reinstate the dismissed workers or, if that was not possible, to pay compensation equivalent to one-year salary, as prescribed by the Law on Trade Unions. The Committee notes that in one of these decisions, the court considered that “the contract of employment of the defender, as well as of about 300 other workers, was terminated due to these workers’ trade union membership”. The Committee expects that the above decisions have now been implemented by the Pasabahce Glassware Factory and request the Government to specify whether these workers have been reinstated or compensated. The Committee further requests the Government to continue keeping it informed on the status of the remaining 293 dismissed workers.
6. 172. With regard to the amendments to the Trade Unions Act No. 2821 and the Collective Agreements, Strikes and Lockouts Act No. 2822, the Committee recalls that previously, the Government had stated that the work on the amendments should be completed by September 2005. Noting the Government’s indication that the bill amending Act No. 2821 was presented to the social partners and that the Government expected to complete its work on the amendment of Act No. 2822 in the very near future, the Committee trusts that the final version of the amended Acts will take into account its previous recommendations and, more specifically, that section 12 of Act No. 2822 will be amended so as to bring it into 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. With regard to its request to amend section 33 of the same Act 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 notes the Government response and refers the Government to its recommendations in this respect in Case No. 2329. It requests the Government to transmit all information regarding the proposed legislative amendments to the Committee of Experts on the Application of Conventions and Recommendations to which it refers the legislative aspects of this case.