Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Algérie (Ratification: 1962)

Autre commentaire sur C087

Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, referring to legislative matters, most of which are already being examined by the Committee and, in addition, reporting persistent violations of the Convention in practice, particularly the prohibition to leave the country on the General Secretary of the National Autonomous Union of Public Administration Personnel (SNAPAP) while she was due to participate in the work of the June 2018 International Labour Conference; police intervention to prevent the General Assembly of the Algerian Union of Electronic Press Editors from being held in February 2018; and the fact that a trade union leader was brought before the courts following a call to hold a General Assembly for the Higher Education Teachers’ Union (SESS) in November 2017. The Committee also notes that the observations of the ITUC, supported by those of the General and Autonomous Confederation of Workers in Algeria (CGATA), received on 28 August 2018, refer to an unchanging situation regarding the particularly long delays and unjustified refusals of new applications for union registration. The Committee requests the Government to provide its comments in this regard.

The Committee notes the observations of the Autonomous National Union of Electricity and Gas Workers (SNATEGS), received on 5 July 2018 concerning the numerous obstacles to the freedom to organize its activities. In this regard, the Committee notes that at its June 2018 meeting, the Committee on Freedom of Association examined the complaint presented by SNATEGS and made recommendations requesting, in particular, the Government to ensure respect for legislative provisions to enable the trade union to carry out its activities and represent its members (Case No. 3210, 386th Report of the Committee on Freedom of Association). The Committee trusts that the Government will take all necessary measures in this regard and that it will report on tangible measures. Lastly, the Committee notes the observations received on 10 September 2018 of the Confederation of Productive Workers (COSYFOP), the National Union of Industrial Workers (SNSI) and the National Union of Energy Workers (SNT ENERGIE) alleging violations of the Convention in practice. It requests the Government to provide comments in this regard.

Given the continuing allegations concerning particularly serious obstacles to the exercise of freedom of to organize, the Committee is bound to recall that the ILO supervisory bodies have unceasingly stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations (see the 2012 General Survey on the fundamental Conventions, paragraph 59). The Committee urges the Government to ensure respect of this principle.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the discussion that took place in the Conference Committee in June 2018, concerning the application of the Convention by Algeria. The Committee notes that, in its conclusions, the Conference Committee requested the Government to: (i) ensure that the registration of trade unions in law and in practice conforms with the Convention; (ii) process pending applications for the registration of trade unions which have met the requirements set out by law and allow the trade unions to freely carry out their activities; (iii) ensure that the new draft Labour Code is adopted in consultation with the most representative workers’ and employers’ representatives and that it is in compliance with the Convention; (iv) amend section 4 of Act No. 90-14 in order to remove obstacles to the establishment by workers’ organizations of federations and confederations of their own choosing, irrespective of the sector to which they belong; (v) amend section 6 of Act No. 90-14 in order to recognize the right of all workers, without distinction of any kind, to establish trade unions; (vi) ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions, employers or employers’ organizations; (vii) provide further information on the prompt reinstatement of employees of the Government, terminated based on anti-union discrimination. Lastly, the Conference Committee urgently called on the Government to accept an ILO high-level mission and to report, as of the current year, progress to the Committee of Experts. The Committee notes that in a communication received on 13 November 2018 the Government contests certain conclusions of the Conference Committee that it considers selective, discriminatory and constituting an attack on national sovereignty and on the independence of the judiciary. The Government also indicates that since August 2018 it has been holding constructive discussions with the International Labour Office to find a solution to the situation. Noting that the high-level mission urged by the Conference Committee has not yet taken place, the Committee trusts that the Government will accept this mission in the near future to enable the Committee to note the measures taken and progress achieved in matters raised relating to the application of the Convention.

Legislative issues

Amendment of the Act issuing the Labour Code. The Committee once again recalls that the Government has been referring, since 2011, to the process of reforming the Labour Code. In its reply to the conclusions of the Conference Committee in June 2017, the Government indicated that the latest version of the draft of the new Labour Code had been transmitted to the independent trade unions for their opinion, and to local government sector departments. In June 2018, the Government indicated to the Conference Committee that no efforts were spared in the dialogue with its economic and social partners to produce a Labour Code based on consensus which will consolidate the lessons learned from the experience of implementing the social Acts in force and will meet the expectations of the economic stakeholders. Noting that the process has not yet been completed despite the passage of many years, the Committee urges the Government to take all the necessary measures with a view to completing, without any further delay, the reform of the Labour Code. The Committee, in a request addressed directly to the Government, is making comments on the 2015 version of the draft text relating to the application of the Convention, which it expects the Government will take duly into account in the adoption of the requested amendments.

With regard to the other legislative issues raised in its previous comments, the Committee notes with regret the absence of any tangible measure by the Government to implement the amendments requested since 2006. The Committee expects the Government to take all necessary measures in the near future to adopt the requested amendments to the following provisions.

Article 2 of the Convention. Right to establish trade union organizations. The Committee recalls that its comments focused on section 6 of Act No. 90-14 of 2 June 1990 on the exercise of the right to organize, which restricts the right to establish a trade union organization to persons who are originally of Algerian nationality or who acquired Algerian nationality at least ten years earlier. The Government previously indicated that the required period during which Algerian nationality must have been held has been reduced to five years and that this provision is currently being discussed with the social partners. In the absence of information in this regard, the Committee trusts that the discussions will shortly lead to the revision of section 6 of Act No. 90-14 to remove the requirement of nationality and ensure that the right of all workers is recognized, without distinction of this kind, to establish trade unions. The Committee also refers the Government to its comments in its direct request in which it asks the Government to amend the provisions in the draft Bill issuing the Labour Code on the same issue.

Article 5. Right to establish federations and confederations. The Committee recalls that its comments have related for many years to sections 2 and 4 of Act No. 90-14 which, read jointly, have the effect of restricting the establishment of federations and confederations in an occupation, branch or sector of activity. The Committee previously noted the Government’s indication that section 4 of the Act would be amended to include a definition of federations and confederations. In the absence of information in this regard, the Committee is bound to indicate once again that it expects that the Government will undertake, as soon as possible, the revision of section 4 of Act No. 90-14 in order to remove any obstacles to the establishment by workers’ organizations, irrespective of the sector to which they belong, of federations and confederations of their own choosing. The Committee also refers the Government to its comments in its direct request in which it asks the Government to amend the provisions of the draft Bill issuing the Labour Code on the same issue.

Registration of trade unions in practice

The Committee recalls that its comments have related for several years to the issue of particularly long delays in the registration of trade unions and to the apparently unjustified refusal of the authorities to register certain independent trade union organizations. In its previous comments, the Committee referred, in particular, to the situation of the CGATA, the Autonomous Union of Attorneys in Algeria (SAAA) and the Autonomous Algerian Union of Transport Workers (SAATT). The Committee notes the information provided by the Government to the Conference Committee in this regard. With regard to the SAATT, which submitted an application in 2014, the Government indicates that the application submitted did not correspond to the conditions set out in the provisions of Act No. 90-14, and that the authorities had highlighted in particular a lack of precision in the determination of the occupational category covered by the by-laws, which did not contain the provisions that have to be included in the by-laws as set out in section 21 of the Act. The Government indicated that the parties concerned had not replied nor requested details on their application. With regard to the SAAA, which submitted an application in 2015, the Government indicates that the authorities had found, in the union’s draft by-laws, categories of persons who had the status of salaried employees, and also those with the status of employers. The Government recalled that the Act made a distinction between a union of salaried employees and an employers’ organization and that the persons concerned had been informed of the need to comply with the provisions of legislation but had not replied. With regard to the CGATA, the Government once again recalls that this organization has been invited since 2015, the year it submitted its application, to bring its founding texts into conformity with legislation and that, to date, it has not replied to the request of the administration. The Government adds that the alleged president of the CGATA had been removed from his post under legal and regulatory procedures for abandoning his post to take unauthorized leave and that, owing to this situation, he had lost his status as a paid employee. In this regard, the Committee notes that, in their respective observations, the CGATA and the ITUC indicate that the authorities’ refusal to register the trade unions did not include any information on the issues to be amended in order to comply with the legislation, and that, to date, the authorities had not responded to the CGATA’s attempt to obtain these details. Furthermore, the Committee notes the observations of the ITUC concerning the particularly long delay to process the registration of the SESS, which submitted an application in 2012 and which delay is irrespective of the fact that the SESS had reformulated its by-laws as requested by the authorities. The Committee also notes with concern the list provided by the ITUC and the CGATA of nine trade unions which had applied for registration and had in the end dropped their applications because of the authorities’ demands and the time that passed without obtaining registration. Lastly, the Committee notes that the ITUC reports the fact that on 6 March 2018 the Government, without any legal framework, called on the 65 accredited trade unions in the country to prove their representativity by using a form on the website of the Ministry of Labour, Employment and Social Security, thereby excluding from the process all autonomous trade unions, including the CGATA and SNATEGS.

The Committee notes with regret that trade union registration remains particularly problematic, particularly given the conflicting information provided by the Government and the trade unions on the practice. The Committee recalls that, in its view, the regulations providing for formalities are not in themselves incompatible with the Convention, provided that they do not in practice impose a requirement of “previous authorization”, in violation of Article 2, or give the authorities discretionary power to refuse the establishment of an organization; nor must they constitute such an obstacle that they amount in practice to a pure and simple prohibition. The Committee also emphasizes that provision should be made for the possibility of an appeal against any administrative decision of this kind to be examined without delay by an independent and impartial jurisdiction. Lastly, in the view of the Committee, although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union activities should not be dependent upon registration (see the 2012 General Survey on the fundamental Conventions, paragraphs 82 and 83). The Committee expects the Government to ensure full respect of these principles. In this connection, the Committee encourages the Government to adopt the consistent practice of systematically and diligently providing the trade unions which apply for registration with, where relevant, prompt justifications in the case of refusal, in order that the unions are fully informed of the necessary corrective measures to be taken. The Committee urges the Government to ensure that the organizations which show interest are promptly informed of any additional formalities to be followed for their registration and that all necessary measures are taken by the competent authorities to ensure prompt registration of the organizations which have met legislative requirements. Therefore, the Committee expects that the Government will proceed as a matter of urgency to the registration of the CGATA, SESS, SAAA and SATT where they have met the requirements set out by law.

The Committee is raising other matters in a request addressed directly to the Government.