Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities. 1. The Committee emphasizes that the incompatibility between the Convention and the obligation of first-level trade union organizations to obtain the approval of the central workers’ confederation before declaring a strike, as required by section 376bis(2) of the Labour Code, has constantly been brought to the Government’s attention since 1977. The Committee notes the Government’s indication in its report that the need to obtain the approval of the central workers’ confederation cannot be considered a limitation on the rights of trade union organizations since such approval comes from the trade union organization and not from an external administrative body. The Government adds that Circular No. 7 of the Tunisian General Labour Union (UGTT) contains a list of the members of the trade union confederation empowered to sign an authorization to call a strike, which includes all the secretaries general of the regional unions, who are in direct and permanent contact with the first-level unions in enterprises. Finally, the Government indicates that it has not received any complaint from first-level trade unions to the effect that prior approval for strikes by the central union confederation limits their right to organize their activities.

The Committee points out once again that making the exercise of the right to strike conditional upon the approval of the central workers’ union by its very nature limits the right of first-level trade union organizations to organize their activities and defend the interests of their members in full freedom. As the Committee has emphasized on many occasions, the imposition by law of the requirement of prior approval constitutes a restriction on the free choice of the organizations concerned as it prevents them, in relation to the exercise of the right to strike, from acting independently of the higher-level organization, namely the central workers’ union. It recalls that such a restriction is possible only where it is incorporated voluntarily in the statutes of the trade unions concerned and not imposed by the law. The Committee therefore once again urges the Government to repeal section 376bis(2) of the Labour Code so as to guarantee workers’ organizations, irrespective of their level, the possibility to organize their activities in full freedom with a view to furthering and defending the interests of their members, in accordance with Article 3 of the Convention.

2. The Committee notes the Government’s indication in its report that the imposition of the penalties set forth in section 388 of the Labour Code, under which any person who has participated in an illegal strike is liable to a sentence of imprisonment of between three and eight months and a fine of between 100 and 500 dinars, depends on the appreciation by the court of the degree of gravity of the violations concerned. The Government adds that section 53 of the Penal Code allows the courts to impose a penalty that is lower than the minimum set forth in section 388 and even to convert a sentence of imprisonment into a fine.

The Committee notes that the Government’s report does not reply to its previous comments concerning the incompatibility with the Convention of section 387 of the Labour Code, under which a strike is deemed to be illegal where it is not called in compliance with the provisions relating to conciliation and mediation, the period of notice and the requirement of approval by the central workers’ confederation. The Committee draws the Government’s attention to the fact that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the Convention, which is not the case of the compulsory prior approval by the central workers’ confederation as set out in section 387 of the Labour Code. Furthermore, with regard to the disproportionate nature of the sanctions set out in section 388 of the Labour Code, the Committee does not believe that the latitude of the courts’ discretion and the existence of section 53 of the Penal Code are sufficient to render them proportionate. In this respect, the Committee points out that failure to comply, in particular, with provisions relating to the conciliation of the dispute and the notice period for strike action is not so serious as to justify the imposition of a sentence of imprisonment. The Committee therefore requests the Government to review sections 387 and 388 of the Labour Code so as to bring them into conformity with Article 3 of the Convention.

Furthermore, a request on certain other points is being addressed directly to the Government.