Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information contained in the Government’ report. It regrets that, this year again, the report contains no new information relevant to its previous comments and merely repeats previous replies. It also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention in Algeria and the Government’s reply thereto.

Articles 2 and 5 of the Convention. Right of workers, without previous authorization, to establish and join organizations of their own choosing and to establish federations and confederations. The Committee notes the comments of the ICFTU that in practice the authorities have prevented the registration of some unions by refusing to acknowledge receipt of their application for registration; in this respect, the ICFTU refers to the case of the Algerian Confederation of Autonomous Trade Unions (CASA). The Committee notes the Government’s reply to the effect that: (1) under Act No. 90-14 of 2 June 1990 concerning the exercise of the right to organize, no previous authorization is required to establish an occupational organization and that a mere declaration of constitution duly acknowledged by the competent authority is necessary; and (2) in respect of the particular case mentioned by the ICFTU, unions can conduct their activities within the framework of the envisaged Confederation without waiting for the legal opinion of the Ministry of Labour and Social Security and the Government has never interfered in the activities of the said Confederation. The Committee also notes the Government’s reply in Case No. 2153 examined by the Committee on Freedom of Association to the effect that it had sent a negative reply concerning the establishment of two confederations, including CASA, in accordance with sections 2 and 4 of Act No. 90-14 (see paragraphs 170-174 of the 329th Report of the Committee on Freedom of Association).

The Committee notes from section 8 of Act No. 90-14 that occupational organizations are required to register with the competent administrative authority to be declared as being constituted and that the competent administrative authority must acknowledge receipt of the registration within 30 days of the submission of the application for registration. On the other hand, and for the particular case mentioned by the ICFTU, the Committee notes that the Government refers to the legal opinion of the Ministry of Labour and Social Security - and therefore not to a simple acknowledgement of receipt as provided for in the law. The Committee understands from the Government’s report that this legal opinion has apparently not been handed down yet. Further, the Committee notes from the Government’s reply in Case No. 2153 that it has refused the application for registration of two confederations in light of sections 2 and 4 of Act No. 90-14. The Committee recalls that national regulations governing the constitution of occupational organizations are not in themselves incompatible with the provisions of the Convention provided that they do not impair the guarantees granted by the Convention and in particular that they do not amount in practice to a requirement for previous authorization in respect of the constitution of occupational organizations and which is prohibited under Article 2 (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 68 and 69).

In these circumstances, the Committee requests the Government to provide clarification, in its next report, on the practical application of section 8 of Act No. 90-14, in particular in light of its indications that a refusal for registration can be made under sections 2 and 4 of the Act. The Committee further requests the Government to provide the following information: (a) the grounds on which a registration may be refused; (b) the provisions if any specifying the grounds for refusal; (c) the practical implications of such a refusal on the existence and the functioning of an occupational organization; and (d) the organization’s right of appeal in case of refusal or the absence of acknowledgment within the prescribed time limit. Finally, the Committee requests the Government to provide clarification in respect of the legal opinion concerning CASA referred to in its report, in light of section 8 of Act No. 90-14, as well as on the practical implications of such an opinion for the existence and functioning of the Confederation, now and in the future.

The Committee recalls that for several years it has been addressing the following points in its comments.

Article 3. Right of organizations to organize their activities and formulate their programmes without any interference from the public authorities. The Committee noted previously that section 1, read together with sections 3, 4 and 5, of Decree No. 92-03 of 30 September 1992, defines as subversive acts offences directed, in particular, against the stability and normal functioning of institutions, through any action taken with the intention: (1) of obstructing the operation of establishments providing public service; or (2) of impeding traffic or freedom of movement in public places or highways, under penalty of severe sanctions including imprisonment of up to 20 years. The Committee therefore again requests the Government to take steps through legislation or regulation to ensure that none of these provisions may be applied against workers peacefully exercising their right to strike. The Government is asked to report on any instances of these provisions having been applied where the right to strike has been exercised.

With regard to section 43 of Legislative Decree No. 90-02 of 6 February 1990, the Committee has previously noted that this provision bans strikes not only in essential services the interruption of which would endanger the life, personal safety or health of the population, which the Committee has always considered admissible, but also where the effect of the strike is likely to engender an acute economic crisis. Furthermore, section 48 authorizes the minister or the competent authority, where the strike persists and after the failure of mediation, to refer, after consultation of the employer and the workers’ representatives, a collective dispute to the arbitration commission. The Committee wishes to recall, however, that referral to arbitration in order to end a collective dispute should be allowed only if both parties so request and/or only in the event of a strike in essential services in the strict sense of the term. Consequently, the Committee once again urges the Government to amend its legislation along the lines indicated above so as to guarantee fully the right of workers’ organizations to organize their activities and formulate their programmes without interference from the public authorities, in accordance with Article 3 of the Convention.

The Committee had noted in connection with the previous report from the Government that, in the absence of a legal framework for public service workers since the repeal of Act. No. 78-12 establishing the General Workers Statute, the Government had stated that a new general statute of the public service was envisaged and that the conclusions of the National Commission for the Reform of State Institutions were to be an important element in framing the future public service statute. The Committee again asks the Government to provide information in its next report on the conclusions of the abovementioned commission and to send any draft legislation concerning the public service statute.

The Committee expresses the firm hope that the Government will take all necessary steps in the near future to bring its legislation fully into line with the provisions of the Convention. It reminds the Government in this connection that it may call upon the Office for technical assistance should it so wish.