Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Algeria (Ratification: 1962)

The Committee notes the Government’s reply to the observations of the International Trade Union Confederation (ITUC) which concerned the prosecution of members of teachers’ trade unions for taking strike action. The Committee notes the ITUC’s new observations, dated 4 August 2011, which address points already raised by the Committee and among other matters report instances of repression and harassment of strikers. It also notes the Government’s indication in reply to these latter comments that in two cases police executed court orders of eviction. In this respect, the Committee recalls that police intervention to enforce the execution of a court decision affecting strikers should observe the elementary guarantees applicable in any system that respects civil rights and fundamental freedoms. The Committee considers that, in cases of strikes, the authorities should only resort to the use of force in exceptional circumstances and in situations of gravity where there is a serious threat of public disorder, and that such use of force must be proportionate to the circumstances. Governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive use of force in trying to control demonstrations that might undermine public order.

The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2701 (its June 2010 meeting) urging the Government to register without delay the National Union of Vocational Training Workers (SNTFP), whose application to register has been awaiting approval since 2002. The Committee notes the Government’s indication that the application is being re-examined.

Article 2 of the Convention. Right to establish trade unions. The Committee noted previously that section 6 of Act No. 90-14 of 2 June 1990 restricts the right to establish a trade union organization to persons who are Algerian by birth or who have had Algerian nationality for at least ten years. Pointing out that the right to organize must be guaranteed to workers and employers without distinction or discrimination whatsoever, with the exception of those categories specified in Article 9 of the Convention, and that foreign workers too must have the right to establish organizations, the Committee requested the Government to take the necessary steps to amend section 6 of Act No. 90-14 so as to grant all workers, without distinction as to nationality, the right to establish a trade union organization. The Committee notes that in its report, the Government states that foreign workers may join one of the existing trade unions, and are thus able to exercise the right to organize as soon as they become members. The Government confirms that they are able to participate in the trade union activities carried on by their organizations and may stand for election to executive office. Noting the amendment requested by the Committee, the Government replies that it will be undertaken in the context of the Labour Code reform. The Committee hopes that the legislative reform will be undertaken in the near future and requests the Government to provide information on developments in this regard, particularly on any amendment of section 6 of Act No. 90-14 providing for all workers, without distinction as to nationality, the right to form a trade union organization.

Articles 2 and 5. Right of workers to establish and join organizations of their own choosing without previous authorization and to establish federations and confederations. In its previous comments, the Committee requested the Government to take specific measures to amend the legislative provisions that prevent workers’ organizations, irrespective of the sector to which they belong, from forming federations and confederations of their own choosing (sections 2 and 4 of Act No. 90-14). The Committee notes that the Government repeats its previous response, namely that it is aware of the need to word this provision more clearly so as to allow workers’ organizations, irrespective of the sector to which they belong, to form federations and confederations. The Committee again urges the Government to report any developments regarding the amendment of section 4 of Act No. 90-14 so as to remove all obstacles preventing workers, regardless of the sector to which they belong, from establishing federations and confederations of their own choosing.

Article 3. Right of organizations to carry on their activities in full freedom and formulate their programmes. In its previous comments the Committee drew attention to section 43 of Act No. 90-02 under which strikes are forbidden not only essential services the interruption of which may endanger the life, personal safety or health of the population, but also where the strike “is liable to give rise to a serious economic crisis”. The Committee requested the Government to take steps to amend the Act or to adopt a regulatory text that would clarify this point along the lines indicated by the Government, namely that the wording of section 43 should be similar to that used by the Committee, which refers to “strikes which, by reason of their scope and duration, are liable to cause an acute national crisis”. The Committee notes that in its report, the Government repeats that the wording of section 43 allows no interpretation other than that of the Committee. In order to avoid all ambiguity, the Committee is bound once again to ask the Government to adopt a text amending section 43 of Act No. 90-02 or a regulatory text stating expressly that strikes are forbidden in essential services the interruption of which may endanger the life, personal safety or health of whole or part of the population, or where the strike, by reason of its scope and duration, is liable to cause an acute national or local crisis.

Lastly, the Committee commented previously on section 48 of Act No. 90-02 which empowers the Minister or the competent authority, where the strike persists and mediation has failed, or where imperative economic or social need so require, to refer the dispute to the National Arbitration Commission after consulting the employers’ and workers’ representatives. The Committee requested the Government to take measures without delay to ensure that the National Arbitration Commission may be called upon to end a collective labour dispute only at the request of both parties and/or in the event of a strike in essential services in the strict sense of the term, or in the event of a strike the scope and duration of which are liable to cause an acute national or local crisis, or in the event of a dispute in the public service involving public servants exercising authority in the name of the State. The Committee notes that in its report the Government provides further details of the arbitration procedure, indicating in particular that pursuant to section 11 of Executive Decree No. 90-148 of 22 December 1990, the application to the National Arbitration Commission must include a submission setting out the imperative economic and social needs requiring referral of the dispute, and it must also set out the arguments as to the advisability of referral put forward by the employer and the representatives of the workers concerned by the dispute. It further notes that in its last report, the Government states that the amendment to section 48 of Act No. 90-02 requested by the Committee will be dealt with in the context of the draft Labour Code. The Committee requests the Government to provide information on developments in this regard, in particular on any amendments, introduced in the context of the planned legislative reform, to section 48 of Act No. 90-08 to ensure that recourse may be had to the National Arbitration Commission only in the instances set out above.