Report in which the committee requests to be kept informed of development - Report No 384, March 2018

Case No 3240 (Tunisia) - Complaint date: 15-AUG-16 - Follow-up

Allegations: The complainant organization denounces obstacles to the free exercise of the right to organize in certain enterprises, its exclusion from national social dialogue, and the failure of the Government to establish the social dialogue bodies provided for in the Labour Code

1. 527. The complaint is contained in a communication dated 15 August 2016 from the Tunisian Workers’ Federation (UTT).
2. 528. The Government sent its observations in a communication dated 29 May 2017.
3. 529. Tunisia 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. 530. In a communication dated 15 August 2016, the UTT states that it was established in May 2011 as a result of the trade union pluralism advocated by the national Constitution. It cites a total of 1,500 affiliated trade unions, spread over all regions and sectors of activity. The UTT estimates that it has 150,000 members, representing 6.5 per cent of the active population.
2. 531. In general terms in its complaint, the UTT denounces obstacles to the exercise of freedom of association faced by affiliated organizations in enterprises, particularly the exercise of the right to information, the right of assembly and the right to engage in collective bargaining. The complainant also indicates that its leaders, unlike those of other trade unions, have been refused leave of absence for trade union purposes, even though this is provided for in enterprise regulations. In support of its allegations, the UTT supplies a copy of provisions of the respective staff regulations of both the Maritime and Ports Authority and the Grain Marketing Board, which state that “where an employee is appointed as a permanent representative of one of the unions of which staff are members, he/she shall be granted a period of secondment, at the request of the union, for the whole of his/her union term of office. During the period of secondment, he/she shall retain his/her right to be promoted …”.
3. 532. More specifically, the complainant organization alleges the unjustified dismissal of trade union officials by Carthage Cement (hereinafter: the enterprise). Mr Faisal Zoghbi, the general secretary of the primary UTT-affiliated union at the enterprise, was dismissed by the management on the same day that the latter was notified of the establishment of the union. With regard to Mr Zoghbi, the complainant denounces the following: (i) the management of the enterprise deprived him of his company car on the day it was notified of the establishment of the union (18 December 2015); (ii) the management decided to transfer him to other duties the same day; and (iii) the management decided to dismiss him on 21 December 2015 despite the fact that his direct supervisor had granted him annual leave a few days earlier (19 December 2015). The UTT also denounces intimidation of union members.
4. 533. Moreover, the UTT recalls that section 355 of the Labour Code provides for the establishment of a national committee on social dialogue, whose prerogatives would include determining the representativeness of trade unions in the event of a dispute regarding the most representative status of one or more unions (section 39 of the Code). The UTT states that this committee has never been set up and that the Government is using the situation as justification for approving representative status only for the Tunisian General Federation of Labour (UGTT) and the Tunisian Federation of Industry, Commerce and Craft Trades (UTICA), thereby excluding the other legally constituted representative organizations from social dialogue. The UTT indicates that the national committee for social dialogue would be the appropriate forum for managing the new situation of trade union pluralism which has existed since 2011.
5. 534. Lastly, the UTT denounces the fact that it has still not received its due share of the Public Economic Development Fund in the same way as the other workers’ and employers’ unions, in accordance with section 58 of the Finance Act of 25 December 1974.
6. 535. In conclusion, the UTT calls on the Committee on Freedom of Association to remind the Government of its international commitments relating to freedom of association, the right to collective bargaining and the protection of workers’ representatives. The Government should also be required to take the necessary steps to remove the obstacles to the exercise of freedom of association and to finally engage in inclusive social dialogue with all the legally established trade unions.

B. The Government’s reply

1. 536. The Government provided its observations in reply to the allegations of the UTT in a communication dated 29 May 2017. As regards the allegations of anti-union measures against the general secretary of the primary UTT-affiliated union in a cement company, the Government indicates that it requested information directly from the enterprise. In its reply, the enterprise indicates that Mr Zoghbi was a sales representative who was transferred to a different department in December 2015. The latter refused to take up his new post and was therefore summoned before the disciplinary board in January 2016. The board decided to dismiss him. The Government explains that the enterprise did not seek authorization from the director-general of the labour inspection and conciliation services to dismiss Mr Zoghbi, a trade union representative, in accordance with section 166 of the Labour Code. Under this provision of the Labour Code, the director-general of the labour inspection and conciliation services must issue a reasoned opinion within ten days of submission of a request for authorization. If this opinion is disregarded, the dismissal becomes arbitrary with regard to its form. In this regard, the Government indicates that Mr Zoghbi took legal action to appeal against his dismissal.
2. 537. As regards the complainant organization’s allegations concerning the supposed failure of the Government to fulfil its international commitments and those contained in the Labour Code, the Government indicates that, under section 170 of the Labour Code, the labour inspectorate is responsible for: (i) enforcing the legislation, regulations and collective agreements relating to or deriving from employment relations; (ii) providing information and technical advice to employers and workers on the most effective means of applying the labour legislation; (iii) notifying the competent authorities of any defect or abuse which is not specifically covered by the legal provisions in force; (iv) drawing up statistics concerning conditions of work and employment in all sectors of activity under its control (section 179 of the Labour Code); and (v) assisting governors in their conciliation mission (section 172 of the Labour Code). The labour inspectorate is also responsible for dealing with individual disputes and supervising conciliation between the social partners, in order to oversee disputes and monitor social dialogue structures within the enterprise, with a view to overcoming the difficulties faced by the social partners. However, the law does not stipulate that the inspectorate should intervene in the trade union election process, which is a function that belongs to union representatives.
3. 538. The Government also indicates that the Ministry of Social Affairs treats all the social partners on an equal footing in observance of the principles of freedom of association, including trade union pluralism. In this context, the Ministry of Social Affairs works with all the social partners to establish a system for determining trade union representativeness on the basis of consensus among all the parties which is compatible with the specific economic and social realities and the system of labour relations in Tunisia. This process of determination has the support of the ILO. In this regard, further to the establishment of a tripartite committee for this purpose, an agreement has been reached with a view to: (i) defining the system for establishing trade union representativeness (absolute or relative representativeness; different levels – national, regional, sectoral and institutional); (ii) establishing precise and objective criteria for determining union representativeness; (iii) specifying the competencies of unions according to their degree of representativeness; (iv) specifying the different facilities granted to unions according to their representativeness; (v) determining the body responsible for evaluating the degree of representativeness of unions; and (vi) determining the body responsible for dealing with appeals relating to the outcome of the evaluation of union representativeness.
4. 539. The Government adds that the question of determination of trade union representativeness will also be examined by the national council for social dialogue, the establishment of which is the subject of a bill recently submitted to Parliament.

C. The Committee’s conclusions

1. 540. The Committee notes that the present case is concerned with allegations of obstacles to the free exercise of the right to organize in an enterprise, exclusion of the complainant organization from national tripartite consultations, and failure of the Government to fulfil its obligation to establish social dialogue bodies as provided for in the Labour Code.
2. 541. The Committee notes the general allegations of the UTT concerning obstacles to the free exercise of freedom of association faced by affiliated organizations, in particular the right to information, the right of assembly and the right to collective bargaining. The Committee notes the specific indication concerning the situation of union officials at the enterprise, in particular the general secretary of the primary union affiliated to the UTT, Mr Faisal Zoghbi, who was allegedly the victim of discriminatory measures from the day that the management was notified of the establishment of the union, namely: (i) confiscation of his company car; (ii) transfer to other duties; and (iii) unjustified dismissal. The Committee notes the reply of the Government, which requested information directly from the enterprise. The Government indicates that Mr Zoghbi was a sales representative who was transferred to another department in December 2015. Since the latter refused to take up his new post, he was summoned before the disciplinary board in January 2016 and then dismissed. The Committee also notes the Government’s indication that the enterprise did not seek authorization from the director-general of the labour inspection and conciliation services, as required by section 166 of the Labour Code, and that Mr Zoghbi took legal action to appeal against his dismissal. In this regard, the Committee observes that section 166 of the Labour Code provides that any dismissal of a staff delegate, whether titular or substitute, envisaged by the employer must be submitted by the latter to the competent regional labour inspectorate, and that the dismissal is considered wrongful if the established procedure is not followed or the labour inspector’s opinion is disregarded, unless a genuine and substantive reason for the dismissal is established in the competent courts. Section 166 also provides that the employer and the worker concerned shall retain their right to appeal to the competent courts.
3. 542. The Committee sees fit to recall 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. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 799]. The Committee, noting the indication that Mr Zoghbi took legal action to appeal against his dismissal, requests the Government to keep it informed of the outcome of the legal appeals and any follow-up action. In view of the time that has elapsed since the events were reported, the Committee highlights the fact that providing adequate protection against acts of anti union interference and discrimination calls for rapid appeal procedures and the imposition of sufficiently dissuasive penalties for any infringements.
4. 543. As regards the complainant organization’s allegations that trade union leaders are being refused leave of absence for trade union purposes, even though this is provided for in staff or enterprise regulations, the Committee’s view is that a systematic refusal to grant secondment for representative purposes, as provided for in the regulations in force, without good reason is not conducive to harmonious labour relations and should therefore be avoided. With regard to the granting of free time to workers’ representatives, the Committee recalls that the granting of facilities to representatives of public employees’ organizations, including the granting of free time, must not impair the efficient operation of the administration or service concerned.
5. 544. Moreover, the Committee notes the assertion of the UTT that the absence of a national committee for social dialogue, as provided for by the terms of section 355 of the Labour Code, whose prerogatives would include settling any disputes regarding trade union representativeness, serves as a pretext for the Government to approve representative status for the UGTT and UTICA only, and to exclude all other legally constituted representative organizations from social dialogue, at all levels. The Committee notes the Government’s statement that it treats all the social partners equally and observes the principles of freedom of association, including trade union pluralism. According to the Government, the Ministry of Social Affairs works with all the social partners to establish a system for determining trade union representativeness which is the subject of consensus among all the parties and is compatible with specific economic and social realities and the established system of labour relations. This process of determination has the support of the ILO. An agreement has been reached with a view to: (i) defining the system for establishing trade union representativeness (absolute or relative representativeness; different levels – national, regional, sectoral and institutional); (ii) establishing precise and objective criteria for determining union representativeness; (iii) specifying the competencies of unions according to their degree of representativeness; (iv) specifying the different facilities granted to unions according to their representativeness; (v) determining the body responsible for evaluating the degree of representativeness of unions; and (vi) determining the body responsible for dealing with appeals relating to the outcome of the evaluation of union representativeness. The Government adds that a bill was recently submitted to Parliament for the establishment of a national council for social dialogue, which will also examine the question of trade union representativeness.
6. 545. The Committee refers to various cases concerning Tunisia which it has examined in recent years and its long-standing recommendations to the Government to take all necessary steps to lay down clear and pre-established criteria for determining trade union representativeness, in consultation with the social partners (see Cases Nos 2994 and 3095). While appreciating the information supplied once again on the measures taken in this regard with technical assistance from the Office, the Committee expects the Government to complete without delay the tripartite consultations which have been initiated. The Committee once again underlines the need to ensure that these consultations are inclusive by taking steps to extend their scope to all workers’ and employers’ organizations concerned, in order to take the various views into consideration. The Committee also considers that it is only on this condition that any privileges agreed upon for certain organizations vis-à-vis others – on the basis of clearly established representativeness – will be understood and accepted. The Committee expects the Government to report tangible progress in this respect in the near future.
7. 546. The Committee notes the allegations of the UTT that it has still not received its due share of the Public Economic Development Fund in the same way as the other workers’ and employers’ organizations, in accordance with section 58 of the Finance Act of 25 December 1974. The Committee requests the Government to send its comments on this matter.

The Committee’s recommendations

1. 547. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed with regard to the outcome of the legal appeal lodged by Mr Zoghbi against his dismissal in January 2016, and with regard to any follow-up action.
   • (b) The Committee expects the Government to complete the tripartite consultations which have been initiated to lay down clear and pre-established criteria for determining trade union representativeness. The Committee once again underlines the need to ensure that these consultations are inclusive by taking steps to extend their scope to all workers’ and employers’ organizations concerned, in order to take the various views into consideration. The Committee expects the Government to report tangible progress in this respect in the near future.
   • (c) The Committee requests the Government to send its comments in reply to the allegations of the UTT that it has still not received its due share of the Public Economic Development Fund, in accordance with section 58 of the Finance Act of 25 December 1974.