Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 375, Juin 2015

1. 73. The complaint is contained in a series of communications from the National Union of Education Workers (SNTE) dated 15 July and 24 August 2014 and 10 February and 24 March 2015.
2. 74. The Government sent its observations in a communication dated 11 December 2014.
3. 75. Algeria has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 76. In a communication dated 15 July 2014, the SNTE explains that it is a legally recognized organization which is currently having to deal with the recognition by the human resources office of the Algerian Ministry of Education of the management emerging from an unlawful congress held on 25 June 2003; the self appointed president of the organization, Mr Abdelkrim El Moudjahed Boudjenah, was supported by the Ministry of Labour and Social Affairs, which validated the 2003 congress in Communication No. 271/MTSS/DRP/2003.
2. 77. Faced with this situation, the SNTE indicates that it has filed a number of lawsuits and requested clarifications from the Ministry of Labour and Social Affairs concerning its 2003 letter to the human resources office of the Algerian Ministry of Education. The Ministry responded that the letter in question was for information purposes, and maintained that the administration does not interfere in the internal affairs of trade unions, in accordance with Act No. 90-14 on the procedures for the exercise of trade union rights. After applying to the administrative courts, the president of the SNTE considered to be lawful (hereinafter referred to as the “lawful SNTE”) was notified of a decision by the Administrative Chamber of Algiers dated 15 November 2005 that it is the State Council which has the authority to rule on administrative decisions of the Ministry of Labour.
3. 78. The SNTE indicates that it held its own congress on 20 July 2004. That congress, however, was deemed illegal by the Ministry of Labour, which instead recognized the congress organized by Mr Boudjenah in August 2004, which was broadly supported and endorsed by the authorities. These facts clearly show the Government’s interference in the activities of a free and independent trade union.
4. 79. The complainant organization summarizes the legal proceedings initiated in this case as follows: following the lodging of a complaint against Mr Boudjenah by the lawful SNTE in December 2007, the meeting of 25 June 2003 was deemed invalid in a ruling of 17 March 2008, thereby rendering all subsequent decisions by both its congress and by the elected president null and void. However, following an appeal filed by the respondent, the Algiers Court of Appeal issued a decision overturning the judgment of the court of first instance (7 December 2008). The SNTE brought the case to the Supreme Court, which issued a ruling (19 January 2010) quashing the contested decision and returning the case for reconsideration to the Algiers Court of Appeal, but with a different bench. The Algiers Court of Appeal issued a final ruling on 17 June 2013 upholding the ruling of the court of first instance which had invalidated the congress of 25 June 2003. The complainant organization indicates that, on 3 July 2013, after the withdrawal of the executory order (the original document) of the judicial decision, Mr Boudjenah was informed of the final ruling by a bailiff. Mr Boudjenah, however, refused the notification. The document was subsequently sent to him by registered mail on 16 July 2013 and made public through its posting on 14 August 2013 at the Hussein Dey Court in Algiers, which is the locally competent court (all the judicial decisions and correspondence mentioned by the complainant organization are attached to the complaint).
5. 80. According to the complainant organization, in September 2013, Mr Boudjenah attempted to apply for clarification of the reasons for invalidating the 2003 congress before both the Social Court and the Algiers Court of Appeal. However, the two requests were rejected in November 2013. His appeal of the social court’s decision was rejected on 16 February 2014 (all the decisions are attached to the complaint).
6. 81. The complainant organization indicates that, on account of the latest court decisions, an election meeting was held on 25 and 26 April 2014, attended by a bailiff duly mandated by the presiding judge of the local competent court in the city of Oran, at which Ms Aicha Bennoui was elected president of the SNTE, putting an end to the lengthy legal process described above. Recalling that the court decisions referred to are final and enforceable, the complainant organization denounces the fact that the Ministry of Labour continues, nevertheless, to impede its activities.
7. 82. The complainant organization also refers to the many prosecutions and convictions which Mr Boudjenah currently faces, including most recently a case brought against him for breach of confidence and fraud before the court of Algiers by a group of 40 teachers; the complainant organization is surprised that Mr Boudjenah has still not been suspended, as prescribed in the public service regulations for civil servants who have been subject of criminal prosecution which prevents them from continuing their work (article 174 of Act No. 06/03).
8. 83. In its communication dated 24 August 2014, the complainant organization submitted two contradictory letters by the country’s Ministry of Education to local education offices (school inspectorates) concerning the matter. The aim of the first letter dated 8 October 2013 is to order Mr Boudjenah’s trade union activity to be discontinued. The complainant organization expresses surprise, however, that, in a second letter dated 8 April 2014, the Ministry recognizes Mr Boudjenah as the president of the SNTE, even though no new element had been introduced to the case that would justify such a turnaround.
9. 84. In its communication dated 10 February 2015, the SNTE denounced the authorities’ reprisals against it for having brought the case to the International Labour Office. The SNTE deplores the fact that it was informed orally of the Ministry of Labour’s decision to cease all contact with it from the moment that it brought the matter before the Committee on Freedom of Association.
10. 85. Lastly, in a communication dated 24 March 2015, the SNTE forwarded a press article reporting the holding of a congress organized by Mr Boudjenah and attended by representatives of the country’s Ministry of Labour and Social Affairs and Ministry of Education. The complainant organization deplores this situation; the Supreme Court ruling prevents him from exercising any rights in respect of the SNTE.

B. The Government’s reply

1. 86. In a communication dated 11 December 2014, the Government indicates that the SNTE was registered on 15 April 2000 under Act No. 90 14 of 2 June 1990 on the procedures for the exercise of trade union rights. It is active in the country’s education sector, along with other trade unions. When it was registered, the president of the SNTE was Mr Rachid Dridi. However, one year after its registration, Mr Dridi resigned, triggering the start of the conflict within the trade union.
2. 87. The Government alleges that in 2003, a number of members of the SNTE national council gave notification of their loss of trust in Mr Mohamed Bennoui, then president of the SNTE national office following the resignation of Mr Dridi. These council members then set up a committee to arrange an extraordinary congress of the trade union. Accordingly, in June 2003, the members of this committee organized the extraordinary congress, following which a national bureau was elected, with Mr Boudjenah as president. The other party to the dispute organized a trade union congress in July 2004, at which a governing body was elected, with Mr Bennoui as president.
3. 88. The Government indicates that, in keeping with the principle of non-interference in the internal affairs of trade unions, it informed the two parties to the dispute that the situation now depends on the prerogatives of the competent jurisdictions. Furthermore, the aggrieved party exercised its right and brought the disputes before the courts. On 17 March 2008, the Sidi M’hamed Court (Algiers) accordingly handed down a judgment invalidating the extraordinary congress of June 2003 and all its legal consequences. The Algiers Court of Appeal overturned the judgment of the lower court in a ruling handed down on 7 December 2008. Lastly, on 4 October 2012, the Supreme Court ordered that the case be taken up again and reconsidered in the same law court but with a different bench. In a ruling on 17 June 2013, the Algiers Court of Appeal upheld the judgment handed down in 2008 by the Sidi M’hamed Court.
4. 89. The Government explains that the case concerns judicial rulings handed down in the case concerning the extraordinary congress of 2003. The Government affirms that, since the June 2003 congress, Mr Boudjenah has organized two ordinary congresses in 2004 and 2009, at both of which he was re-elected union president. To ascertain whether the congresses of 2004 and 2009 had been invalidated by the final ruling of the Algiers Court of Appeal, Mr Boudjenah submitted two requests for interpretation: one on the local court’s ruling of 17 March 2008 and the other on the appeal court’s ruling of 17 June 2013. According to the Government, it transpires from the interpretative decision and ruling on the two requests that the two courts had examined the case with reference solely to the extraordinary congress of June 2003, and the 2004 and 2009 congresses had not been examined by either the local or the appeal court. The Government considers that, in the absence of a judicial decision invalidating the 2004 and 2009 congresses, the congress remains the trade union’s supreme body for the election of its representatives.
5. 90. The Government further states that the party which had initiated the judicial proceedings has now been divided, each of the two new parties in dispute claiming to represent the trade union. The Government attaches copies of correspondence in which each party claims the exclusion of the other.
6. 91. With regard to the facts set out in the complaint concerning Mr Boudjenah, the Government explains that the matters fall under ordinary law and that it is the responsibility of the courts to issue a decision.
7. 92. In conclusion, the Government expresses its willingness to notify the Committee on Freedom of Association of any developments regarding the facts reported in the complaint, on the one hand, and, on the other, of the handling of the internal union dispute, and also of the potential measures which will be taken in accordance with article 174 of the general public service regulations.

C. The Committee’s conclusions

1. 93. The Committee notes that, in this case, the complainant organization alleges interference by the authorities in an internal union dispute.
2. 94. According to the information provided by the SNTE and the Government, the Committee observes that the dispute described may be summarized as follows: the SNTE has been legally recognized since 2000 and is active in the country’s education sector, along with other trade unions. One year after its registration, the president of the SNTE, Mr Dridi, resigned. In 2003, his successor, Mr Bennoui, faced a revolt by several members of the union’s national council. These members set up a committee to arrange an extraordinary congress of the trade union, which met in June 2003, following which, a national bureau was elected, with Mr Boudjenah as president. Mr Bennoui’s faction contested the legality of the extraordinary congress of June 2003 and organized its own congress in July 2004, which elected a governing body with Mr Bennoui as president. Mr Bennoui’s faction accuses the authorities, in particular the Ministry of Labour and Social Affairs and the Ministry of Education, of interference on account of their overt support for Mr Boudjenah’s faction, and their recognition not only of the results of the June 2003 extraordinary congress, but also of the ordinary congress which Mr Boudjenah organized in August 2004, at which he was re-elected president.
3. 95. The Committee notes that Mr Bennoui’s faction, which declares itself as the lawful SNTE, then took the matter to the courts. After filing a complaint against Mr Boudjenah in December 2007, the congress of 25 June 2003 was deemed invalid by a first instance ruling of 17 March 2008, thereby rendering all decisions taken during the congress and, subsequently, by the elected president null and void. When, however, the other faction appealed against the ruling, the Algiers Court of Appeal handed down a decision setting aside the first instance ruling (7 December 2008). The case was taken up by the Supreme Court, which finally, on 19 January 2010, ruled to quash the contested decision and return the case for reconsideration to the Algiers Court of Appeal but with a different bench. Lastly, in a final ruling of 17 June 2013, the Algiers Court of Appeal upheld the first instance ruling invalidating the congress of 25 June 2003.
4. 96. The Committee recalls, first, that internal disputes in a trade union organization do not come within its competence and should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities. In addition, in cases of internal dissension within one and the same trade union federation, by virtue of Article 3 of Convention No. 87, the only obligation of the government is to refrain from any interference which would restrict the right of the workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes, and to refrain from any interference which would impede the lawful exercise of that right [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1122 and 1117]. The Committee notes that, in the present case, the conflict within the SNTE has been settled by the courts, which ruled that the disputed extraordinary congress of June 2003 was invalid, rendering its legal consequences null and void. The Committee further notes that the complainant organization indicates that, in view of the most recent judicial decision, an election meeting was held on 25 and 26 April 2014, in the presence of a court bailiff specially authorized by the presiding judge of the locally competent court – the court of Oran – at which Ms Aicha Bennoui was elected president of the SNTE.
5. 97. In this regard, the Committee observes that the Government mentions two congresses organized by Mr Boudjenah, in 2004 and 2009, at both of which he was re-elected president, and points out that, for lack of a judicial ruling invalidating the 2004 and 2009 congresses, it considers that the congress remains the trade union’s supreme body for the election of its representatives. Recalling that, by its ruling of 17 June 2013, the Court of Algiers had invalidated the congress of 25 June 2003, thus rendering its legal consequences null and void, in particular the election of Mr Boudjenah as president and the subsequent decisions which he had taken in that position, the Committee queries the Government’s position on the matter. Given that the internal conflict has been definitively settled by the courts, the Committee requests the Government to accept all the consequences of this, in compliance with the principles of non-interference by the authorities and with the right of professional organizations freely to elect their representatives.
6. 98. The Committee expects that, following the judicial decisions, the issue of SNTE representation must henceforth be clearly acknowledged by the Ministry of Education, particularly in its correspondence with the local education offices. The Committee requests the Government to report any developments regarding the events reported in the complaint, in line with its stated intention, in particular with regard to the representation of the SNTE and its involvement in social dialogue in the education sector.
7. 99. The Committee observes that, according to the allegations, almost a year after the April 2014 election meeting held in the presence of a bailiff duly mandated by the presiding judge following a court decision which finally settled the question of the SNTE representation, the complainant organization denounced the holding of a congress in March 2015 by the opposing faction in the presence of representatives of the Ministry of Labour and Social Affairs and the Ministry of Education. The Committee requests the Government to provide detailed information in this regard.
8. 100. Lastly, the Committee notes with concern the indication by the complainant organization that it had supposedly been subject to reprisals by the authorities. The SNTE deplores the fact that it had been informed orally of the Ministry of Labour’s decision to break off all engagements with it from the moment that the former brought the matter before the Committee. In this regard, the Committee considers that professional organizations of workers and employers should under no circumstances be subjected to retaliatory measures for having exercised their rights arising from ILO instruments on freedom of association, and especially for having lodged a complaint before the Committee on Freedom of Association. The Committee moreover considers that suspending collaboration with a trade union organization is not likely to ensure peaceful industrial relations. If this allegation is confirmed, the Committee considers that it constitutes a serious violation of freedom of association and firmly expects the Government to immediately cease all reprisals against the SNTE.