Demande directe (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Repetition

The Committee notes the Government’s report received in March 2010 in reply to the previous observations. The Committee also appreciates the ongoing contribution of information and views by the Confederation of Turkish Trade Unions (TÜRK-İŞ) and the Turkish Confederation of Employers’ Associations (TÍSK) on the application of the Convention.

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 Constitution of the ILO). The Committee recalls that in the conclusions adopted in November 2000 by the committee set up by the Governing Body to examine the representation made by TÜRK-İŞ it was noted that the laws regulating the employment of seafarers and journalists did not require a valid reason related to capacity, conduct or operational requirements for termination. The Committee notes with interest that the Government states in its report received in March 2010 that it has amended the Act on Relations between Employees and Employers in Media Profession (No. 5953) to give journalists the same protections afforded other employees under the Labour Law (No. 4857). It notes with regret however that the Maritime Labour Law (No. 854) has not yet been amended to bring it into compliance with the Convention. The Committee urges the Government to take the necessary steps to ensure that seafarers are given the protections afforded by the Convention and to provide information on the steps taken in this regard in its next report.

Article 2(2) and (3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Government indicates that the Labour Act No. 4857 has two safeguards against the abuse of fixed-term, temporary, and seasonal contracts and contracts lasting less than six months with the aim of evading the Convention. First, even though section 18 of the Labour Act limits the application of valid reason requirement to workers with indefinite contracts with at least six months of service, the first paragraph of section 11 requires fixed-term contracts to meet the “objective” standard of a specified term, completion of a certain work, or materialization of a certain event to be recognized as such under the Act. Second, the Government indicates that the second paragraph of section 11 of the Act treats successive fixed-term contracts as an indefinite contract unless there is “an essential reason which may necessitate repeated (chain) contracts”. The Committee notes TÍSK’s view that the objective reason requirement affords a stringent protection against the potential abuse of fixed-term contracts. The Committee would appreciate receiving in the Government’s next report updated information on the efficacy of these two safeguards in ensuring the protection resulting from the Convention.

Article 2(4)–(6). Categories of employees excluded from the Convention. The Committee recalls its previous observation that the Government did not list any category of workers for exclusion under Article 2(6) in its first report in December 1997. The Committee notes that under Article 4 of the Labour Law (No. 4857), the Law does not apply to a range of businesses such as those in sea and air transport, in agriculture and forestry employing less than 50 workers, in domestic services, in the production of handicrafts by family members, in sport, etc. The Committee recalls that the Convention applies to all branches of the economy and to all employed persons but that it can be given effect to by different means including laws, collective agreements, arbitration awards or court decisions. The Committee requests the Government to indicate in what way the protections afforded by the Convention are available to the categories of workers contemplated by the exclusions in article 4 of the Labour Law. The Committee recalls its previous observation that section 18 of the Labour Law that requires a valid reason relating to conduct, capacity and operational requirements for the termination of employment, specifically excludes a business employing less than 30 employees. In the same observation, the Committee also noted that the last paragraph in section 18 of the Labour Act excludes employers’ representatives who manage the enterprise and their assistants from the protections enumerated in sections 18, 19 and 21 of the same Act. In response to the Committee’s request to explain how these two categories of workers are afforded protection under Articles 4, 5, 6 and 7 of the Convention, the Government refers to section 17 of the Labour Act, which entitles these employees to a compensation of three times the applicable notice period. The Government further indicates that this compensation is in addition to the amount paid in lieu of notice. The Committee notes that section 18 of the Labour Act lists the reasons contained in Article 5 of the Convention as invalid reasons for dismissal under the Labour Act such as reasons relating to discrimination, maternity leave, filing complaints and participating in proceedings regarding alleged violation of laws, trade union membership and activities, etc. Given that termination on some of these grounds constitutes an infringement of the fundamental Conventions such as those regarding discrimination and freedom of association, a penalty of three times the notice pay is substantially less than the remedies afforded other workers under the Labour Act and might be considered inadequate compensation for the purposes of Article 10 of the Convention. The Committee accordingly invites the Government to reconsider this aspect and to afford appropriate protection against invalid dismissal for this category of employees.

The Committee understands that the fourth paragraph in section 18 of the Labour Act, which previously determined the calculation of six-month and 30 worker thresholds required for the application of valid reason standard, has been deleted. The Committee further notes TÜRK-İŞ’ concern that the 30-worker threshold excludes a significant number of workers from the Convention’s coverage, given the ubiquity of small and medium-sized enterprises. The Committee invites the Government to indicate in its next report how the resulting change in the threshold calculation ensures the application of the Convention.

Article 4. Valid reason for termination. The Committee notes that the Convention’s valid reason protection is being implemented through domestic court decisions based on the Labour Act, especially by the Court of Cassation’s rulings on which facts related to workers’ competence and conduct, or employers’ business necessity constitute valid grounds. TÍSK indicates that the number of cases in the Ninth Chamber of the Supreme Court of Appeals, dedicated to labour disputes other than social security issues, has increased from 20,000 to 43,000 per year since the Labour Act came into force in June 2003, with reinstatement lawsuits making up a bulk of the increase. TÍSK and TÜRK-İŞ both communicate difficulties arising from the prolonged period of adjudication lasting more than two years, since employers cannot leave a vacancy open for long and employees suffer from delayed reinstatement. TÍSK indicates that the Court of Cassation distinguishes “valid reason” terminations under section 18 of the Labour Act from dismissals based on “justified grounds” under section 25 by applying the principle of termination as the last resort in the former, and the standard of serious misconduct in the latter. The Committee invites the Government to continue providing information on the decisions of the tribunals on the abovementioned matters covered by the Convention (see Part V of the report form).

Article 10. Remedies in case of invalid termination. The Government indicates that under section 21 of the Labour Act, courts and arbitrators have the power to declare a termination invalid and determine the amount of compensation in lieu of reinstatement. Employees must apply for reinstatement within ten days of judgement, and employers must choose between reinstatement and compensation. Workers are entitled to up to four months of one’s wages during the appeals process, which must be paid back upon reinstatement or deducted from the final amount of compensation. TÜRK-İŞ indicates that employers frequently choose compensation over reinstatement under this legal framework. TÜRK-İŞ suggests that the statutory compensation amount of between four and eight months of wages is inadequate and hinders one’s reinstatement, since adjudication takes more than two years in practice and employees must pay back the initial compensation to be reinstated. TÜRK-İŞ also indicates that the Turkish Employment Agency (İŞKUR) requires workers who win their lawsuits to pay back the unemployment benefits they have received during adjudication, even though employment security and unemployment insurance are distinct entitlements. TÍSK expresses the view that the remedy of either reinstatement or compensation combined with an expedited system of financial aid during adjudication exceeds the Government’s obligation under the Convention. The Committee notes the 1995 General Survey on protection against unjustified dismissal, which states that the wording of Article 10 of the Convention gives preference to reinstatement but is flexible in allowing other remedies and that, when compensation is paid, it should be adequate (paragraph 219 of the General Survey of 1995). In this respect, the Committee invites the Government to provide information in its next report regarding the adequacy of compensation for unjustly dismissed workers who are not reinstated.