Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

Case No 2153 (Algeria) - Complaint date: 17-SEP-01 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 16. This case was last examined by the Committee at its March 2007 meeting and concerns allegations of obstacles to the establishment of trade union organizations and a trade union confederation and to the exercise of trade union rights, anti-union dismissals, anti-union harassment by the public authorities, and the arbitrary arrest and detention of union members [see 344th Report, paras 15–24]. On that occasion, the Committee requested the Government: (a) to provide its observations on the allegations made by the complainant organization concerning Nassereddine Chibane, Fatima Zohra Khaled, Mourad Tchiko and Mohamed Hadj Djilani; (b) to keep it informed of the outcome of the appeal to the Supreme Court dated 5 February 2006 concerning the internal dispute between the two factions of the National Autonomous Union of Public Administration Staff (SNAPAP); (c) to keep it informed of any appeals lodged and, as the case may be, of any decision reached on the matter of the seven workers dismissed from the Prefecture of Oran for having protested on the premises of the Prefecture; (d) to take the necessary steps to ensure that decisions to determine the representativeness of a particular organization can be taken without the identities of members being revealed; and (e) to take the necessary steps without delay to amend the legal provisions preventing workers’ organizations (irrespective of the sector to which they belong) from forming federations and confederations of their own choosing, and to keep it informed of the measures taken in that regard [see 344th Report, paras 22–24].
2. 17. The Government provides responses to some of the points in communications dated 2 May, 17 July and 23 August 2007. In its communication of 17 July 2007, the Government states, with regard to the recognition of the SNAPAP, that the civil protection administration has always considered the SNAPAP to be a social partner which enjoys the admissible privileges for most representative unions (including the secondment of its members as of August 2003), proof of the goodwill of the administration in its efforts to maintain a relationship of trust based on dialogue and the exchange of views. However, despite obtaining an extension of the deadline, the SNAPAP was unable to provide the evidence regarding its representativeness as required by law. Therefore, strictly in line with the terms of the legislation in this regard, the administration was forced to cancel the secondment of the trade unionists as of the month of October 2004, given that the SNAPAP could not claim to be a representative trade union.
3. 18. Consequently, the Government states that: (1) Mr Nassereddine Chibane (a member of the National Union of Civil Protection – the National Autonomous Union of Public Administration Staff (UNPC–SNAPAP)) convened a trade union meeting during working hours, despite the fact that he is not authorized to do this because the SNAPAP does not enjoy the prerogatives granted to representative organizations. Having committed professional misconduct, Mr Chibane was suspended from his post of civil protection agent by a disciplinary committee before the appeal body commuted this sanction to a transfer; (2) no complaint has been recorded by the security services of the Prefecture of Oran concerning Ms Fatima Zohra Khaled (President of the trade union section of the SNAPAP at the Ecole nationale supérieure d’enseignement technique d’Oran), who was allegedly subjected to intimidation and harassment following the national strike of 9 May 2006; (3) Mr Mourad Tchiko (Vice-President of UNPC-SNAPAP) was brought before the joint disciplinary committee for having violated the provisions of section 17bis of Executive Decree No. 91-274, of 10 August 1991, giving special status to civil protection agents. Mr Tchiko organized an unauthorized gathering while on sick leave. The disciplinary committee and the appeal body to which he turned were of the view that his actions constituted serious professional misconduct. He is the subject of a temporary measure in the form of the application of section 131 of Decree No. 85-59 of 23 March 1985 giving standard status to workers of public institutions and administrations. Mr Tchiko’s situation will not be definitively resolved until the final legal ruling concerning the criminal proceedings initiated against him has been issued; (4) the hospital administration transferred Mr Mohamed Hadj Djilani (National Secretary for Information) to a senior nurse position following repeated instances of failure to carry out correctly his tasks as senior supervisor. This measure was not in any way intended as a sanction for his trade union activities. Moreover, Mr Hadj Djilani was sentenced to a month’s imprisonment for slander following complaints made by the executive body of the SNAPAP (copy of ruling provided); (5) Mr Rabah Mebarki (President of the
   • UNPC–SNAPAP) is currently the subject of proceedings regarding the organization of an unauthorized gathering in violation of section 17bis of Executive Decree No. 91-274. In line with the regulations in force, he has been temporarily suspended from duty pending a judicial ruling.
4. 19. In its communication of 2 May 2007, in response to the recommendations of the Committee to take the necessary steps to ensure that decisions regarding the determination of representativeness of a particular organization can be taken without the identities of members being revealed, the Government states yet again that Algerian law does not require trade union organizations to present a list of members’ names as proof of its representativeness. The only obligation provided for under Act No. 90-14 of 2 June 1990 is the communication to the Ministry of Labour and Social Security before 31 March of each year of the number of members and the amount of union dues. Furthermore, with regard the Committee’s recommendation concerning the possibility of trade union organizations forming federations and confederations of their own choosing, irrespective of the sector to which they belong, the Government states that the issue is being examined with a view to improving the wording of the provision brought into question by a definition of the notion of federation, union or confederation (section 4 of Act No. 90-14, of 2 June 1990).
5. 20. Lastly, in its communication of 23 August 2007, the Government states that it is ready to inform the Committee as soon as the Supreme Court has issued a ruling concerning the appeal lodged by Mr Rachid Malaoui against the judgement of the Algiers Court of Appeal of 5 February concerning the internal dispute between the two factions of the SNAPAP.
6. 21. The Committee notes this information. As to the internal dispute between the two factions of the SNAPAP, the Committee expresses concern at a situation which has existed since 2003 and which it has been examining for several years [see in particular 336th Report, paras 152 and 162]. The Committee hopes that the dispute will be resolved as soon as possible, in particular through a rapid decision of the Supreme Court and that the Government will send a copy of the decision as soon as it has been issued.
7. 22. As to determining the representativeness of trade union organizations, the Committee recalls that this issue arose during a previous examination of the case when the complainant organization denounced the Ministry of Labour and Social Security’s demand that it be provided with a list of the 430,000 members of the organization. In response, the latter argued that such a demand fitted within the context of normal relations between the authorities and legally established trade union organizations, in accordance with sections 35–37bis of Act No. 90-14 of 2 June 1990 [see 333rd Report, paras 189 and 199]. The Committee notes that in its response dated 2 May 2007, the Government reaffirms that the legal provisions in force have not to date given rise to any particular remarks on the part of the trade union organizations regularly registered. It adds that Act No. 90-14 of 2 June 1990, amended in 1991 and 1996 in order to offer more flexibility when determining representativeness, does not require the presentation of a list of names of members, that the determination of representativeness through a secret ballot (as recommended by the Committee in its previous comments) has never been opposed by the administration and that all trade union organizations are free to use this method in order to gain representativeness. The Committee recalls however that pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments. The Committee has in the past been obliged to recall the risk of reprisals and anti-union discrimination inherent in demands for lists of the names of members of an organization and copies of their membership cards [see in particular 333rd Report, para. 207]. The Committee thus requests the Government to take clear and unequivocal measures rapidly regarding the competent authorities in order to ensure that in the future they do not demand in practice, in order to determine the threshold for the representativeness of trade union organizations, a list of names of members of the organization and copies of their membership cards. The Committee requests the Government to keep it informed of all measures taken in this respect.
8. 23. As to the matter of the recognition of the representativeness of the SNAPAP, the Committee first of all refers to its previous comments regarding the representativeness of trade union organizations, to the effect that minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim [Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 359]. The Committee further requests the Government to take the necessary steps to determine the representativeness of the SNAPAP, should the latter make such a request, within the framework of a procedure which respects the principles listed above concerning the protection of the identity of the members of the organization. In the event that all the elements determining the representativeness of the SNAPAP are provided, the Government should recognize all those rights going hand in hand with the granting of trade union status, and in particular the right of its leaders to exercise activities involving the representation and defence of the interests of the members of the trade union organization.
9. 24. As to the situation of several SNAPAP officials, the Committee deplores the disciplinary measures taken against them and recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 799]. Recalling that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned, the Committee requests the Government to keep it informed of any rulings issued concerning Mr Rabah Mebarki and Mr Mourad Tchiko and of any measures taken by the employer in this regard.
10. 25. The Committee requests the Government to keep it informed regarding the appeal pending and any decision reached on the matter of the seven workers dismissed from the Prefecture of Oran for having protested on the premises of the Prefecture.
11. 26. The Committee requests the Government to keep it informed of the outcome of the review of section 4 of Act No. 90-1, of 2 June 1990, with a view to finding an improved wording for the notion of federation, union or confederation. Recalling the need to take the necessary steps without delay to amend the legal provisions preventing workers’ organizations from forming federations and confederations of their own choosing, the Committee trusts that the Government will be in a position to inform it in the near future of any progress made in this regard in consultation with the social partners.
12. 27. The Committee reminds the Government that the technical assistance of the Office is at its disposal as regards the matters arising in this case.