Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Tunisia (Ratification: 1957)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee noted the observations concerning harassment and intimidation of members of the Tunisian Magistrates’ Association (AMT). The Committee noted that the Government had 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 indicated that the FGESRS had 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 noted 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 noted the Government’s reply, in which it confined 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, in so far 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.

Legislative changes. The Committee recalled 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 noted in this respect that, in its brief report, the Government indicated that the possibility is being examined of bringing the provisions upon which the Committee had 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 criticized the following provisions: (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) section 387 of the Labour Code, according to which 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. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and, therefore, measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee requests the Government to amend sections 387–388 of the Labour Code taking into account the abovementioned principle.

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.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Finally, the Committee notes the comments of the ITUC, dated 24 August 2010, concerning the application of the Convention, in particular, serious allegations of anti-union attacks. The Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights are fully respected and guaranteed. The Committee regrets that the Government has not responded to these allegations despite their seriousness and requests the Government to provide its observations in this respect.