Trade Union Rights Situation in Turkey

REX/345

EU-Turkey Joint Consultative Committee

Brussels, 12 July 2012

30th meeting of the EU-Turkey Joint Consultative Committee (JCC) Berlin, Germany 26-27 June 2012

Preliminary update

Trade Union Rights Situation in Turkey

RAPPORTEURS

Ms Annie van Wezel Member of the European Economic and Social Committee – Employees Group, The Netherlands Policy Adviser on International and European Affairs, The Netherlands Trade Union Confederation, FNV

Prof. Dr. Rüçhan IŞIK Member of the EU-Turkey Joint Consultative Committee - Group III (Various Interests) Representative of Turkish Association of Industrial Relations in Ankara Member of the European Committee of Social Rights Lecturer at Bilkent University Faculty of Law

EN - 2 -

1. Introduction

1.1 The last time the EU-Turkey JCC had a full discussion on the Trade Union Rights Situation in Turkey was at its 25th meeting in Paris in November 2008. The EU-Turkey Joint Consultative Committee at its meeting in Stockholm in 2009 discussed to have an update on the trade union rights situation in Turkey. "Given the importance of this issue, the JCC recommends that the joint report on trade union rights that was adopted by the JCC in 2008 should be updated".

1.2 The trade union rights situation has been a standing point on the agenda of the EU-Turkey JCC since its 18th meeting in The Hague in 2004. The JCC Joint Declaration read: "The JCC regrets that trade union rights and freedom of association are still being infringed in Turkey. It is preoccupied with the number of violations that are reported. The JCC calls for urgent action to be taken in Turkey".

1.3 A milestone in the work of the EU-Turkey JCC in analyzing the trade union rights situation was the joint report of Mr R. Işik and Mr T. Etty presented at the 22nd JCC meeting held in Brussels in 2007. The report welcomed Turkey's ratification of the revised Social Charter on 26 September, though regretting the reservations made by the Turkish Government. The report also welcomed that initiatives had been taken to establish a tripartite consultation to revise the laws. The JCC requested the Turkish government, pending this revision, to suspend the enforcement of seven points in the existing legislation that were particularly limiting trade unions in developing and acting freely.

1.4 Two new and extensive reports on the trade union rights situation were prepared by the co- rapporteurs Mr Işik and Mr Boyle in 2008. The initiatives by the Turkish government in 2007, the Tripartite Consultative Board meeting and the information given to the co-rapporteurs by the Under Secretary of the Ministry of Labour and Social Security in February 2008, gave rise to some optimism that a revision of the legislation was imminent. The co-rapporteurs had been following the developments very closely and held several meetings with the Turkish social partners in Ankara and Istanbul, who cooperated constructively to support the revision1.

1.5 However, in September 2008 it was confirmed to Mr R. Işik that the revision had been postponed until after the next general elections, which were to be held in 2010. In their Joint Declaration the co-chairs of the JCC expressed their disappointment: "In this report the JCC deplores that the Turkish Government has so far failed to make the necessary legislative changes to bring Turkey in line with the ILO Conventions 87 and 98, despite the numerous undertakings and promises given"2 The JCC underlined that the issue of trade union rights

1 For a full description of the efforts of the co-rapporteurs, see the 2008 report on trade union rights in Turkey http://www.eesc.europa.eu/?i=portal.en.eu-turkey-jcc-twenty-fifth-meeting-reports.4993. 2 25th meeting of the EU-Turkey Joint Consultative Committee: Joint Declaration by the co-chairs Mr Sandy Boyle and Mr Tugrul Kudatgobilik. November 2008. http://www.eesc.europa.eu/?i=portal.en.eu-turkey-jcc-twenty-fifth-meeting- reports.4989. - 3 -

would remain high on its agenda. By mandating the co-rapporteurs Mr Işik and Ms A. van Wezel to prepare an update of the 2008 Joint Report, the JCC gave follow up to this decision.

2. Update of the Trade Union Rights Situation since 2008

2.1 The work of the EU-Turkey JCC on trade union rights is based on the acknowledgement that for an impartial assessment of the trade union rights situation in Turkey, the ILO Conventions 87 and 98 are the benchmark. Turkey ratified the Conventions in 1993 and 1952 respectively. These Conventions guarantee the rights for workers and employers to establish organizations of their own choosing to defend their interests collectively. Convention 87 protects freedom of association and the right to organize. Convention 98 protects the right to collective bargaining for the social partners. In addition, ILO case law regulates the right to collective action, including strike.

2.2 The ILO Conventions 87 and 98 are also part of the EU acquis and the implementation of these Conventions is also one of the benchmarks for the opening of Chapter 19 on Social Policy and Employment. The EU-Turkey JCC has stressed with the Turkish authorities the importance and the sense of urgency to bring the legislation in conformity with the ILO Conventions.

2.3 Since 2005 the ILO has been actively engaged in encouraging the Turkish government and offering assistance to bring its labour legislation in conformity with the Conventions 87 and 98. In particular the Act No 2821 and Act 2822 for the private sector and Act No 4688 for the Public Sector have been subject of detailed analysis and clear advice. The ILO supervisory bodies, The Committee of Experts on the Application of Ratified Conventions (CEARC) and the Committee on the Freedom of Association (CFA) advised in detail which amendments would bring the legislation in line with the relevant ILO Conventions. The Conference Committee on the Application of Standards discussed the case in 2007, 2009, 2010 and 2011. The ILO Conference Committee requested in 2009 a high-level bipartite mission to be sent to Turkey and urged the government to engage in ongoing assistance of the ILO in revising its labour laws.

2.4 The ILO acknowledged in 2011 some progress in trade union rights. In particular, the right to celebrate May Day as a national holiday and the 2010 Amendment of the Constitution (Law No 5892) are considered to be positive steps. The amendment of the Constitution in particular clears the way for the right to organize and collective bargaining for public servants and other public employees. However, the International Labour Conference Committee on the Applications of Standards in its 2011 session pointed out that for this right to become effective new legislation had to be put in place. The Committee also noted that respect for civil liberties, including freedom of speech, was an essential prerequisite to freedom of association. The Committee asked the government to send in a plan of action with clear time- lines and to continue to avail itself of the assistance of the ILO.

3. Recent developments: Draft Law on Collective Labour Relations. - 4 -

3.1 During the ILO Conference of 2011, the Turkish government expressed its commitment to improve the trade union legislation and installed a tripartite committee for technical consultation on the revision of the existing law. The committee worked seriously and hard and expectations were raised that indeed in the first half of 2012 new legislation could be brought to parliament. In November 2011 a draft Law on Collective Labour Relations was sent to the Council of Ministers. After revision in the Council of Ministers, a new version of the draft Law on Collective Labour Relations was sent to various subcommittees of the Parliament for further discussion.

3.2 In its report for the 2012 Conference the ILO Committee of Experts confirmed that they were informed on this draft Law and the Experts listed the issues to be taken into account in the new legislation3. Together with earlier Observations of the Committee of Experts and previous discussions of Turkey during the ILO Conference in recent years, the observations in the report provide the basis for understanding the ILO's views on the trade union rights situation in Turkey.

3.3 The ILO Committee of Experts finds several improvements in the draft legislation. The procedures for the establishment of trade unions and the provisions for their internal functioning seem less detailed. The Committee however stresses that al workers, including self employed, home workers and apprentices should enjoy the right to organize. Senior public servants including magistrates, civilian personnel in military institutions and prison guards should also have the right to organise and unemployed and pensioners should be able to retain their trade union membership. Procedures and principles for acquisition and termination of membership should be regulated by trade unions' internal regulations or by- laws and not by the authorities. And verification of the accounts of trade unions or employers associations , other than the periodic submission of financial reports, should only take place when serious ground exist for believing that violations of the organisations rules or the law exist.

3.4 The ILO Experts also confirm that Article 4 of Convention 98 on free and voluntary collective bargaining implies that in a company where no union meets the threshold of more than 50%, "collective bargaining rights should be granted to the existing unions in the workplace, at least on behalf of their own members". The ILO Experts in their 2012 Report also focus on the protection against anti-union discrimination, the return of unfairly dismissed trade unionists to their employment and sufficiently dissuasive sanctions.

3.5 Several Observations of the ILO Experts refer to the regulation and limitation of the right to strike. The ILO Experts consider prohibitions of the right to strike justifiable "for public servants exercising authority in the name of the State" and for “essential services in the strict sense of the term”. They consider the term “public order” to be too broad to fall within a strict

3 Application of International Standards 2012(I) Report of the Committee of Experts on the Application of Conventions and Recommendations, pp 228-232; http://www.ilo.org/dyn/normlex/en/f? p=1000:11110:4381377717064685::NO:11110:P11110_COUNTRY_ID,P11110_CONTEXT:102893,SC - 5 -

definition of essential services. The waiting period before a strike can be called, should not be excessively long. And compulsory arbitration is only acceptable if it is at the request of both parties. Limitations on picketing should not be strict and there should be no penal sanctions against peaceful strikes.

4. The Law on Public Servants, Trade Unions and Collective Agreement.

4.1 The amendment of the Constitution in September 2010 opened the possibility for improving the trade union rights of civil servants. The actual implementation however is disappointing. It took 19 months for the government to amend the Law on Public Servants' Trade Unions and Collective Agreement (Law No. 4688)4. The amendments are not structural. Pensioners, students, judges, civil servants at the military and security workplaces and guardians still do not have the right to establish or join trade unions. Municipal workers' right to collective bargaining remains restricted in spite of the judgements of the European Court of Human Rights. The right to strike is still out of question for civil servants.

4.2 The previous Collective Consultation Committee (28 members, 14 from employers, 14 from employees) has been renamed as Collective Agreement Committee (30 members, 15 employers, 15 employees). In the previous Law a majority of votes in each of the groups was required to sign an agreement. Under the current Law only the heads of both groups sign on behalf of 2.5 million civil servants and 1.8 million pensioners. The period for collective bargaining is 15 days only.

4.3 In case of disagreement the matter can be referred by the heads of the parties to the Public Workers Arbitration Board (PWAB). Under the previous Law, each of the members of the Collective Consultation Committee could refer a matter for arbitration. The trade unions feel that the PWAB is not impartial and that government and employers are dominating. The decisions of the PWAB are binding and no right to appeal exists. In some respect the new amended Law is making collective bargaining even more restricted. To express their disappointment the trade unions organised a peaceful nation-wide demonstration on 23 May 2012.

5. Conclusions

5.1 Since 2008, when the EU-Turkey JCC last discussed the Joint Report of the co-rapporteurs Mr Işik and Mr Boyle, new initiatives have been taken by the government to revise the Turkish legislation on trade union rights and bring it in conformity with international standards.

5.2 The JCC reconfirms that two ILO conventions, Convention 87 and 98, ratified by Turkey, are the reference point for the EU- Turkey JCC, as stated in its previous reports (2006 and 2008) as well as in its representations to the government. The JCC recalls that Turkey must align its

4 Law No 6289 date of approval 4.4 2012 published 11.4.2012. - 6 -

legislation with EU and ILO Standards in order to meet the benchmarks for opening Chapter 19 on Social Policy and Employment.

5.2.1 The JCC welcomes the amendment of the Constitution in 2010, which allows for the improvement of the trade union rights of public servants and employees in the public sector. However, despite the expectations arising from the Amendment of the Constitution in 2010 the actual changes in the Law on Public Servants' Trade Unions and Collective Agreement No 4688) are disappointing and still have not established the right to organise for all public servants. The right to collective bargaining remains restricted and the right to strike is still non existent. The ILO Experts nor the ILO Conference has been able to comment on the new legislation yet.

5.3 The EU-Turkey JCC welcomes the recent initiatives taken by the Turkish Government to bring the Law on Collective Labour Relations into the Agenda of the Turkish Parliament and takes this as signs of procedural commitment to comply with the international standards of trade union rights. The EU-Turkey JCC welcomes the process of technical consultation and applauds the efforts of the social partners to reach agreement on the revision of the labour legislation in order to bring it in line with EU and ILO standards. The JCC reconfirms its conclusion in its previous Report (2008) that the government can not use the lack of consensus in these consultations as an argument for not bringing the Turkish legislation in line with ILO Conventions 87 and 98.

5.4 The EU-Turkey JCC notes that the draft Law on Collective Labour Relations is still waiting to be discussed in Parliament. The JCC encourages the government to take the comments of the ILO Experts and The Conference Committees on the Application of Standards into serious consideration and urges the government to amend the draft Law accordingly. The JCC hopes that unlike in 2008, when the process of revision got postponed, this time the government will be able to fulfil its promise to revise the legislation in line with the ILO Conventions.

5.5 The JCC acknowledges with respect the resilience during the recent financial and economic crisis and the high rate of growth of the Turkish economy. The JCC acknowledges the efforts of the social partners to improve the competitiveness of the Turkish economy by means of skills development and improvement of health and safety conditions. In its previous meetings the JCC discussed the position of women as well as the large number of workers, women and youth in particular, employed in the informal sector of the Turkish economy. The EU-Turkey JCC deplores that the trade union rights situation for these workers essentially has not improved yet.

5.6 The JCC considers this preliminary update of the joint report on trade union rights to be an interim Report and underlines that it will be completed taking into account the upcoming developments in Turkish legislation. The JCC will revert to the topic and adopt a new joint report and a new set of recommendations on this issue at its next meeting. During the preparations of this joint report, the two co-rapporteurs will consult with all Turkish and European social partners. - 7 -

5.7 The EU-Turkey JCC wishes to contribute to good industrial relations. This can not be the result of legislation alone, but also requires the promotion of and support for social dialogue. The JCC intends to keep advocating for social dialogue and for the improvement and full functioning of the Economic and Social Council in Turkey, as an important tool for civil society contribution to policy making, good governance and inclusive growth.

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