Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

In its previous observation, the Committee noted the comments made by the International Confederation of Free Trade Unions (ICFTU), dated 10 August 2006, which referred, inter alia, to the risk of prejudice to the right to strike, which had already been raised by the Committee, as well as cases of assault and violence against strikers, harassment and intimidation of members of the Tunisian Magistrates’ Association (AMT) and the Union of Tunisian Journalists (SJT). The Committee further notes the comments, dated 29 August 2008, of the International Trade Union Confederation (ITUC) relating to legislative matters already raised by the Committee and violations of the Convention in practice, including interference by the authorities to prevent trade union organizations from communicating concerning their activities, the closure of premises of Tunisian General Labour Union (UGTT) and the refusal to recognize a new trade union confederation. The Committee notes the Government’s replies received in November 2006 and November 2008.

With regard to the observations concerning harassment and intimidation of members of the AMT and the SJT, the Government indicates that the founders of the SJT did not discharge the depository formalities required by the Labour Code for the establishment of the union and cannot therefore claim the legal existence of the union. In its reply of November 2008, the Government adds that the SJT has been reconstituted since September 2007 under the name of the National Union of Tunisian Journalists (SNJT), and that the latter now organizes its activities fully and freely, that it is finally autonomous and independent of the UGTT. The Committee notes that the Government has not provided information concerning the situation of the AMT. It recalls that the standards set out in the Convention apply to magistrates, who should be able to establish organizations of their own choosing to further and defend the interests of their members. The Committee requests the Government to provide information on the manner in which it ensures that magistrates enjoy the guarantees afforded by the Convention.

With regard to the observations concerning the recognition of a union of university teaching staff, the Government indicates that it has always given priority to dialogue and adds that certain unions covering higher education personnel have encountered internal organizational problems, and refers in this respect to the establishment of a General Federation of Higher Education and Scientific Research (FGESRS), which was challenged in the courts by first-level unions, which in turn founded an independent union. The Committee further notes that, in its reply in November 2008, the Government denies any discrimination against teaching personnel on grounds of their trade union membership and activities. Finally, the Government indicates that the FGESRS has been constantly present in the delegation of the UGTT for the negotiation of its claims with the Government in 2007 and 2008. The Committee further notes the conclusions and recommendations of the Committee of Freedom of Association concerning a complaint presented by the above Federation (see Case No. 2592, 350th Report). The Committee requests the Government to indicate in its next report any development relating to the determination of the representativeness of trade union organizations in the higher education sector.

With regard to the refusal to recognize a new trade union confederation, namely the Tunisian General Confederation of Labour (CGTT), the Committee notes the Government’s reply, in which it confines itself to recalling that the formalities of depositing the statutes of a trade union organization are carried out without the intervention of the Ministry of the Interior and accordingly rebuts the ITUC’s comments. The Committee trusts that, insofar as the formalities required by the law are fulfilled, there will be a favourable and expeditious response to the request for the registration of the CGTT.

The Committee regrets to note that the Government has not provided any information concerning the observations made by the ICFTU in 2006 concerning cases of aggression against trade unionists and violence against strikers, or the ITUC’s observations of 2008 concerning the closure of premises of the CGTT. In this respect, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected.

Legislative changes. The Committee recalls that for many years it has been making comments concerning provisions of the Labour Code that are not in conformity with the Convention. The Committee notes in this respect that, in its brief report, the Government indicates that the possibility is being examined of bringing the provisions upon which the Committee has commented into conformity. The Committee recalls that these provisions relate to the following points.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. Section 242 of the Labour Code. The Committee recalls that the minimum age for joining a trade union should be the same as the age for admission to employment as determined in the Labour Code (16 years in accordance with section 53 of the Labour Code) and that there should be no requirement for authorization by parents or guardians. It requests the Government to amend section 242 of the Labour Code to that effect.

Article 3. Right of organizations to elect their representatives in full freedom. Section 251 of the Labour Code. With regard to this provision, under which foreign nationals may have access to administrative or executive posts in a trade union provided that they have obtained the approval of the Secretary of State for Youth, Sport and Social Affairs, the Committee recalls that the imposition of such conditions on foreign nationals amounts to interference by the public authorities in the internal affairs of a trade union, which is inconsistent with Article 3 of the Convention. The Committee requests the Government to amend section 251 of the Labour Code so as to ensure that workers’ organizations have the right to elect their representatives in full freedom, including from among foreign workers, at least after a reasonable period of residence in the country.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes in full freedom. (a) Section 376bis(2) of the Labour Code. The Committee has been recalling for many years that the requirement for a first-level union to obtain the approval of the central workers’ confederation before declaring a strike, under the terms of section 376bis(2) of the Labour Code, is inconsistent with the Convention. The Committee emphasizes that a legislative provision which requires the prior approval of the trade union confederation for a strike is an impediment to the freedom of choice of first-level organizations to exercise the right to strike. Such a restriction could only be envisaged if it is included voluntarily in the statutes of the trade unions concerned, and not imposed by law. The Committee requests the Government to repeal subsection 2 of section 376bis of the Labour Code so as to guarantee that worker’s organizations, irrespective of their level, can 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.

(b) Section 376ter of the Labour Code. With regard to this provision, which requires the strike notification to provide an indication of the duration of the strike, the Committee requests the Government to amend section 376ter of the Labour Code so as to remove any legal requirement to specify the duration of a strike and to guarantee that workers’ organizations can call a strike of unlimited duration if they so wish.

(c) Section 381ter of the Labour Code. With regard to essential services, the list of which is determined by decree under the terms of section 381ter of the Labour Code, the Committee requests the Government to indicate whether the decree in question has been adopted and, if so, to provide the list of essential services as determined.

(d) Sections 387 and 388 of the Labour Code. In its previous observations, the Committee noted that: (a) the imposition of the penalties established by section 388 of the Labour Code, under which any person who has participated in an unlawful strike is liable to a sentence of imprisonment of from three to eight months and a fine of from 100 to 500 dinars, depends on the assessment by the criminal court of the gravity of the offences concerned; (b) under the terms of section 387 of the Labour Code, any strike called in breach of the provisions on conciliation and mediation, notice and mandatory approval by the central organization (this point relating to section 376bis of the Labour Code is also the subject of comments by the Committee) shall be deemed unlawful; and (c) section 53 of the Penal Code, under which the courts can impose a lesser penalty than the minimum established in section 388, or commute a prison sentence to a fine, fails to secure the proportionality of penalties. The Committee requests the Government to amend sections 387 and 388 of the Labour Code so as to ensure that the penalties envisaged for participation in an unlawful strike are proportional to the gravity of the offence.

Recalling that its comments have been made for many years, the Committee trusts that the Government’s next report will indicate significant progress in bringing the Labour Code into conformity with the requirements of the Convention. It also recalls that the Government can request the Office’s technical assistance on these matters.