Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the Government’s report.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities. For many years the Committee has been drawing the Government’s attention to the incompatibility with the Convention of the obligation to obtain the approval of the central workers’ union before declaring a strike, as envisaged in section 376bis(2) of the Labour Code. In its latest report, the Government refers to arguments that it had advanced in previous reports to justify such a requirement. According to the Government, trade union organizations voluntarily wish to maintain this approval, which is useful both to keep the central workers’ union constantly informed of any strike action envisaged and for the effectiveness of any measures to settle the dispute peacefully. The Government also indicates that neither the administration nor the courts have received any complaints from first-level trade unions that this procedure restricts their right to organize their activities.

The Committee recalls 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 already emphasized, the prerequisites for exercising the right to strike must be determined by the statutes and rules of the trade union organizations concerned. In the present case, this means that the approval of the declaration of a strike by the central workers’ union must be set out in the statutes of first-level organizations and in those of higher level organizations as a condition for the affiliation of first-level organizations. The Committee recalls in this respect that the adoption of such provisions constitutes an approach that is in conformity with Article 3 of the Convention, as it is based on the free choice of the organizations concerned and that first-level organizations which wish to act independently from the higher level organization may always relinquish their membership of the latter. The Committee therefore once again requests the Government to repeal section 376bis(2) above 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.

The Committee also notes that under the terms of section 388 of the Labour Code, whomsoever shall have participated in an illegal strike shall be liable to a penalty of imprisonment of between three and eight months and a fine of between 100 and 500 dinars. Under the terms of section 387 of the Labour Code, 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’ union. The Committee recalls firstly that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 177). As a result of the above, the approval of the declaration of a strike by the central workers’ union, made compulsory by section 376bis(2) of the Labour Code, is not in conformity with Article 3 of the Convention. Secondly, even where prohibitions of strikes are in conformity with the Convention, the Committee emphasizes that the sanctions provided for should not be disproportionate to the seriousness of the violations (see General Survey, op. cit., paragraphs 177 and 178); this applies in particular to sentences of imprisonment. In the opinion of the Committee, failure to comply, in particular, with provisions relating to the conciliation of the dispute and the notice period for strike action are not so serious as to justify the imposition of a sentence of imprisonment. In these conditions, the Committee requests the Government to review the sanctions envisaged in section 388 so as to bring them into compatibility with Article 3 of the Convention.

A request on certain other matters is also being addressed directly to the Government.