Informe provisional - Informe núm. 367, Marzo 2013

1. 1226. The Committee last examined this case at its March 2012 meeting, when it presented an interim report to the Governing Body [363rd Report, paras 1133–1156 approved by the Governing Body at its 313th Session (March 2012)].
2. 1227. The Government submitted additional observations in communications dated 8 May and 22 August 2012.
3. 1228. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 1229. In its previous examination of the case in March 2012, the Committee made the following recommendations [363rd Report, para. 1156]:
   • (a) The Committee expects that, in consultation with the social partners, Act No. 4688 will be amended in the near future so as to bring it into conformity with Convention No. 87, as repeatedly requested by the ILO supervisory bodies, and requests the Government to intensify its efforts in this regard. The Committee invites the Government to avail itself of ongoing ILO technical assistance in this respect.
   • (b) The Committee urges the Government to take the necessary measures to immediately register YARGI-SEN as a trade union organization of judges and prosecutors so as to ensure that it can function, exercise its activities and enjoy the rights afforded by the Convention to further and defend the interests of these categories of public servants. The Committee requests the Government to keep it informed of the developments in this respect.
   • (c) The Committee urges the Government to provide its observations on the alleged acts of anti-union discrimination suffered by trade union leaders Dr Rusen Gültekin, Omer Faruk and Ahmet Tasurt.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

B. The Government’s reply

1. 1230. In its communications dated 8 May and 22 August 2012, the Government indicates that, as of July 2011, with the participation of the public employees’ confederations, the Tripartite Advisory Committee examined Public Employees’ Trade Unions Act No. 4688 on Public Employees’ Unions which regulates the improvement of the organization and the working conditions of civil servants, enhancement of the efficiency of service, development of the domestic democracy of the unions and the participation in management, and collective bargaining rights. The Advisory Committee agreed on a draft with the reconciliation of the social partners. The draft, stipulating amendment of Act No. 4688, was submitted to the Prime Ministry on 24 October 2011 and communicated by the Council of Ministers to the Turkish Grand National Assembly as of 20 January 2012. After the negotiations had been completed in the relevant sub- and main commissions, Act No. 6289 amending Act No. 4688 was adopted and enacted at the Plenary Session of the Grand National Assembly of Turkey on 4 April 2012.
2. 1231. The Government states that the draft law was prepared by considering the requirements of the EU membership process, the criticisms stated in the EU Progress Reports, ILO standards concerning freedom of association and collective bargaining, and the amendments to the Constitution entered into force in 2010. The Government highlights the following amendments:
   • ■ The title of the Act is changed to the “Public Employees’ Unions and Collective Agreement Act”.
   • ■ Candidate civil servants and public employees in probationary period can be members of trade unions.
   • ■ Section 15 of Act No. 4688, indicating the employees who are not allowed to be members of a trade union, is amended through section 31 of Act No. 6289. As a result of the amendment, highest ranking officials and their assistants in workplaces where more than 100 public employees are employed, and private security personnel in public institutions and establishments, have the right to be a member of trade unions.
   • ■ Section 6(2) of Act No. 4688 which regulates the establishment of trade unions is amended through section 4 of Act No. 6289. The two-year period condition, required to be a union founder, is abolished.
   • ■ The documents and bureaucratic procedures required for the establishment process of unions and confederations are reduced.
   • ■ The issues required to be addressed in the constitutions of unions and confederations are simplified.
   • ■ The rights and duties of workplace union representatives are determined.
   • ■ The High Administrative Board mentioned in section 21 of Act No. 4688 is turned into the Advisory Board of Public Servants in accordance with section 15 of Act No. 6289. The objectives of the Board are as follows:
     • – improvement of social dialogue;
     • – review of public personnel legislation and public management practices;
     • – conduct of joint efforts for a better functioning administration structure;
     • – enabling public personnel to participate in management;
     • – development of solutions for the problems faced by public administration.
   • ■ Public employees are enabled to conclude collective agreements biannually.
   • ■ The collective agreement is envisaged to contain coefficients and indicators to be applied to public personnel, salaries and wages, all kinds of rises and compensations, additional payments, collective agreement bonuses, overtime allowances, travel allowances, remunerations, birth, death and family allowances, funeral expenses, food and clothing allowances, other financial and social rights under section 28 of Act No. 4688.
   • ■ According to section 28 of Act No. 4688, pensioners will benefit from collective agreements as well.
   • ■ The parties to collective agreements will be the “Delegation of Public Employees’ Unions” and the “Delegation of Public Employers” according to section 29 of Act No. 4688.
   • ■ Public employees working in local administrations are entitled to conduct social equilibrium agreements in accordance with section 32 of Act No. 4688.
3. 1232. The Government also supplies the text of Act No. 4688 as amended and a detailed table of concordance illustrating the amendments in relation to the corresponding comments of the Committee of Experts on the Application of Conventions and Recommendations.

C. The Committee’s conclusions

1. 1233. The Committee notes that the complainant in this case alleges that Act No. 4688 denies judges and public prosecutors the right to organize and that, on this basis, the Labour Court has ordered the dissolution of the complainant organization. YARGI-SEN further alleges anti-union discrimination in the form of transfers of its leaders.
2. 1234. The Committee notes that in its reply, the Government indicates, inter alia, that: (i) the Tripartite Advisory Committee examined Public Employees’ Trade Unions Act No. 4688 for the purposes of legislative review and agreed on a draft Act to amend Act No. 4688, which was adopted by the Grand National Assembly of Turkey on 4 April 2012; (ii) the law was prepared by considering the requirements of the EU membership process, ILO standards concerning freedom of association and collective bargaining, and the amendments to the Constitution entered into force in 2010; and (iii) inter alia, section 15 of Act No. 4688, enumerating the public employees who are not allowed to be members of a trade union, was amended to the effect that highest ranking officials and their assistants in workplaces where more than 100 public employees are employed, and private security personnel in public institutions and establishments, now have the right to become members of trade unions.
3. 1235. The Committee notes the consolidated text of Act No. 4688 as last amended by Act No. 6289, supplied by the Government. It notes in particular that section 15(b), at issue in its previous examination of this case, continues to provide that judges and prosecutors cannot be members of trade unions and cannot establish trade unions, and that section 4 continues to provide that trade unions based on profession or workplace cannot be established. The Committee deeply regrets that the Government has not used the opportunity of the recently undertaken labour law reform (that has included the review of Act No. 4688) to bring these provisions into conformity with the principles of freedom of association, as previously recommended by the Committee.
4. 1236. The Committee recalls that public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members. The Committee also recalls that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, and that workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 220, 333 and 334]. The Committee therefore considers that section 15 of Act No. 4688 as last amended, which denies the right to set up trade unions to judges and public prosecutors, and section 4 of that Act, which prohibits the establishment of trade unions on an occupational or workplace basis, are contrary to Article 2 of Convention No. 87, according to which workers “without distinction whatsoever” shall have the right to establish and join organizations “of their own choosing” without previous authorization, as well as to Article 8, paragraph 2, of the Convention. In this respect, the Committee recalls that for a number of years the Committee of Experts on the Application of Conventions and Recommendations has been requesting the Government of Turkey to amend section 15 so as to guarantee the right to organize to, among other public employees, judges and prosecutors and requests the Government to renew its efforts, in consultation with the social partners, so as to bring Act No. 4688 into conformity with Convention No. 87 on this point. The Committee invites the Government to avail itself of the technical assistance of the Office in this respect, if it so desires.
5. 1237. In the absence of any information provided by the Government in respect of recommendation (b), the Committee once again urges the Government to take the necessary measures to immediately register YARGI-SEN as a trade union organization of judges and prosecutors so as to ensure that it can function, exercise its activities and enjoy the rights afforded by the Convention to further and defend the interests of these categories of public servants. The Committee requests the Government to keep it informed of the developments in this respect.
6. 1238. With regard to the alleged cases of transfers of trade union leaders on the date of their election to the Executive Committee of the union, the Committee regrets that the Government merely indicates that it does not have any information at its disposal concerning the alleged anti-union discrimination against Dr Rusen Gültekin, Omer Faruk and Ahmet Tasurt. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799]. The Committee requests the Government to institute an independent inquiry into the alleged acts of anti-union discrimination suffered by the above trade union leaders and to provide detailed information on its outcome and any remedial steps taken should these acts be found to be of an anti-union nature.