Informe provisional - Informe núm. 392, Octubre 2020

Caso núm. 3210 (Argelia) - Fecha de presentación de la queja:: 26-ABR-16 - En seguimiento

Allegations: The complainant organization alleges a campaign of harassment and intimidation of its officers and members by an enterprise in the energy sector, the refusal to implement court decisions in favour of reinstatement for unfairly dismissed workers, as well as the public authorities’ refusal to put an end to these violations of trade union rights

1. 178. The Committee last examined this case (submitted in 2016) at its June 2018 meeting, when it presented an interim report to the Governing Body [See 386th Report, approved by the Governing Body at its 333rd Session (June 2018), paras 86 to 120].
2. 179. The Autonomous National Union of Electricity and Gas Workers (SNATEG) provided additional information in communications dated 4 June and 27 August 2018, and 9 and 25 February, 22 May and 12 June 2019. The Confederation of Productive Workers (COSYFOP), an umbrella organization to which SNATEG is affiliated, supported the complaint and provided additional information in communications dated 27 August, 25 September, 11 and 15 October 2019 and 31 January 2020.
3. 180. The Government provided its observations in communications dated 15 May 2018 and 7 January, 25 June and 19 November 2019.
4. 181. 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. Previous examination of the case

1. 182. In its previous examination of the case, the Committee made the following recommendations [see 386th Report, para. 120]:
   • (a) The Committee expects the Government to ensure respect for the aforementioned decisions applying the principles of freedom of association concerning the right of minority trade unions to carry out their activities and represent their members. It further expects the Government to take all necessary measures to ensure that the provisions of the Act are implemented in respect of SNATEG if it is established that it meets the criteria for representativeness.
   • (b) The Committee urges the Government to keep it informed of the Supreme Court’s judgment in the appeal of the 15 December 2014 judgment of the El-Harrouch court in the case involving Mr Abdallah Boukhalfa and the enterprise.
   • (c) The Committee urges the Government to keep it informed of the outcome of the complaint allegedly brought by Mr Abdallah Boukhalfa against Mr Mellal for usurpation of function and, in the interim, urges it to adopt a neutral attitude in the case, including by refraining from any statement that might be viewed as a form of interference in the operations of SNATEG.
   • (d) The Committee urges the Government to indicate without delay whether Ms Benmaiche has been reinstated in accordance with the court judgment issued and whether she is still carrying out trade union activities.
   • (e) Noting with concern the especially large number of union representatives who, according to the complainant, have been wrongfully dismissed, and recalling that the Government has a list of the names of all the representatives who have been dismissed, the Committee urges the Government to make inquiries in order to establish the grounds for these dismissals and, if they prove to have resulted from legitimate trade union activities, to take the necessary steps to secure the workers’ reinstatement without loss of pay and ensure the application of the corresponding legal sanctions against the enterprise. If reinstatement is not possible for objective and compelling reasons, the workers concerned should be paid adequate compensation so as to constitute a sufficiently dissuasive sanction against anti union dismissals. The Committee requests the Government to keep it informed of the results of these inquiries without delay.
   • (f) The Committee strongly urges the Government to take all necessary measures to ensure peaceful labour relations in the enterprise and to address the serious acts of anti-union discrimination reported. To that end, it urges the Government to ensure that all of the allegations of discrimination that the Committee has before it are investigated promptly and to keep it informed in that regard. The Committee also expects the Government to ensure that the relevant court judgments are duly implemented. Such measures should help to create an environment that will allow SNATEG to carry out its activities without interference or intimidation.
   • (g) Noting that the direct contacts mission requested by the Committee on the Application of Standards in June 2017 has not yet taken place, the Committee expects the Government to accept the mission so that, in this case, the measures taken in order to ensure that SNATEG and its members enjoy an environment free from intimidation and violence and the progress achieved in that regard can be assessed.

B. The complainant’s new allegations

1. 183. In a succession of communications, SNATEG alleges the continued judicial harassment of union leaders by the SONELGAZ Group (hereinafter “the enterprise”) and the Government, particularly several complaints which led to Mr Mellal, the President of the trade union, receiving prisons sentences and fines. SNATEG makes particular reference to his conviction for slander of six months’ imprisonment without parole and a fine equivalent to €2,000 in a ruling of 2 January 2017, while he was in the process of reporting the sexual harassment and dismissal of a woman worker in a subsidiary of the enterprise. Mr Mellal was also convicted of slander and sentenced to two months’ imprisonment without parole and a fine equivalent to €5,000 in a ruling of 17 November 2017, rendered in absentia and, according to SNATEG, marred by a procedural flaw due to a statement made against a former Energy Minister. Mr Mellal was also convicted of possessing documents unlawfully and sentenced to six months’ imprisonment without parole in a decision of 15 December 2016 of the Guelma Court. According to SNATEG, these convictions were the enterprise’s retaliation to a report of overpricing. In general terms, SNATEG has questions about the way in which the justice system has used certain evidence against Mr Mellal (use of forgery validated by the court, conviction for a report made in the context of union action). Lastly, SNATEG is astonished, for example, that Mr Mellal was sentenced to two months’ imprisonment without parole for slander when, in fact, he had sent the enterprise, in the form of a confidential internal document, a formal notice reporting a case of corruption.
2. 184. In their communications of February and September 2019, SNATEG and COSYFOP also denounce the enterprise’s legal action for slander which, in 2018, led to sentences of imprisonment without parole and fines for Mr Abdelkader Kouafi, Secretary-General of the union, and Mr Benzine Slimane, President of the security workers’ section of the enterprise, while they were speaking out against the working conditions in the company as part of their mandate. The complainant organization also reports several new convictions against Mr Mellal, one handed down on 8 May 2019 for slander following a complaint from the enterprise and another handed down on 9 May 2019 for identity theft following a complaint by the Ministry of Labour. In both cases, Mr Mellal was sentenced to six months’ imprisonment without parole. In general terms, COSYFOP denounces not only the now systematic practice of initiating legal proceedings, including by the Government, to obstruct the trade union activities of its leaders, but also the increasingly harsh sentences handed down, as an additional means of intimidation.
3. 185. Furthermore, the complainant organization alleges that the justice system is one-sided and has not followed up on any of the numerous complaints that it has lodged with the courts. This includes complaints against the enterprise for forgery and the use of forgeries before some ten courts in the country, as the enterprise is allegedly claiming that an administrative decision has been issued to withdraw SNATEG’s registration. There are also several complaints against the directors of the enterprise for slander and obstructing freedom of association, as well as complaints of forced membership of a union (deduction at source of trade union dues in favour of another trade union in the enterprise). Lastly, SNATEG denounces the inaction of the National Anti-Corruption Office, with which it lodged a complaint against the enterprise for misappropriation of public assets.
4. 186. In its successive communications from August 2018 to June 2019, SNATEG alleges that the Government has interfered in its internal operations by reporting that it had dissolved voluntarily. SNATEG denies the Government’s assertion before the ILO supervisory bodies that the organization voluntarily decided to dissolve during a general assembly held in October 2017. According to the complainant organization, contrary to the Government representative’s statement before the Committee on the Application of Standards of the International Labour Conference (107th Session, May–June 2018) referring to this general assembly allegedly held on 7 October, a national congress of SNATEG was held on 6 and 7 December 2017 at its headquarters with the participation of the delegates from all the wilayas (provinces) which unanimously decided not to dissolve the union. The deliberations of the congress and the decisions taken, including the decision not to dissolve the union, were the subject of a report drawn up by a court official, which was transmitted to the Ministry of Labour, Employment and Social Security (document provided in the complaint).
5. 187. In addition, SNATEG denounces an administrative decision to withdraw its registration taken by the Government on 16 May 2017 (Decision No. 297), which the Government and the enterprise are invoking before the courts, despite the Government representative having denied its existence before the Committee on the Application of Standards in June 2017. In addition to recalling that the administrative dissolution of trade unions is not possible under the principles of freedom of association, SNATEG alleges that the appeals it has brought before the courts to challenge this decision have been rejected. The complainant organization reports that it appealed to the Council of State against the rejection of the previous appeals, and this appeal was rejected in July 2019, contrary to the Committee on the Application of Standards’ explicit recommendations in June 2019 to the Government to review the decision to dissolve the trade union.
6. 188. Furthermore, SNATEG recalls several court rulings recognizing Mr Mellal as the legitimate President of the trade union. The complainant organization makes particular reference to the decision of the investigating judge of the El-Harrouch Court of 23 January 2017 dismissing Mr Abdallah Boukhalfa’s action against Mr Mellal for usurpation of the function of President of the union. It also refers to the decision of the Indictments Chamber of the Guelma Court of 6 February 2017, as well another decision from the same court of 27 November 2017 ordering the reinstatement of Mr Mellal in his job and his position as trade union delegate and leader. In this regard, SNATEG alleges that the enterprise has refused to implement this court ruling on the grounds that it has filed an appeal. This situation constitutes a serious impediment to its activities and a violation of Act No. 90-14 of 1990 on the exercise of trade union rights. SNATEG alleges that the labour inspectorate refuses to acknowledge this violation.
7. 189. With regard to the unfair dismissal of trade union members and leaders, SNATEG and COSYFOP indicate that the workers who were reinstated by the enterprise without any compensation for unfair dismissal were forced to leave the union and join another trade union present in the enterprise. Trade union members who refused to be blackmailed in this way have still not been reinstated. This includes trade union members who have a legal order for reinstatement that the enterprise is refusing to carry out (Mr Raouf Mellal, President of the trade union; Mr Kouafi Abdelkader, Secretary-General; Mr Benarfa Wahid, Chairperson of the eastern national committee; Mr Araf Imad, Chairperson of the Southern National Committee; and Mr Djeha Makhfi, Chairperson of the MPVE union section). This also involves trade union members for whom the labour inspectorate has requested reinstatement, in application of section 56 of Act No. 90-14. However, the inspectorate did not complete the reinstatement process on the instructions of the Ministry of Labour (Mr Benhadad Zakaria, member of the National Committee; Mr Slimani Mohamed Amine Zakaria, Chairperson of the National Committee for Young Workers; and Mr Chertioua Tarek, Chairperson of the Communications Committee). Lastly, this concerns trade union members who have taken legal action, but are still awaiting a decision (Mr Mekki Mohamed, member of the National Committee; Mr Benzine Slimane, President of the National Federation of Security and Prevention Workers; Mr Guebli Samir, Chairperson of the Central National Committee; and Mr Meziani Moussa, President of the National Federation of Gas and Electricity Distribution Workers). These leaders were all dismissed in 2017, with the exception of Mr Mellal, who was dismissed in 2015. In this regard, the trade union alleges that the enterprise has refused to implement the court ruling of November 2017 ordering the reinstatement of Mr Mellal and, under the Code of Civil and Administrative Procedure, a cassation appeal is not a ground for suspending the implementation of the court ruling. The trade union further indicates that several dismissed leaders no longer have the necessary income to take legal action to follow up on appeals or enforce reinstatement decisions.
8. 190. With regard to the unfair dismissal of Mr Mellal, COSYFOP refers to a Supreme Court decision of 3 October overturning the Guelma Court of Appeal’s decision of 27 November 2017. COSYFOP alleges that Mr Mellal and SNATEG were not notified of the Supreme Court decision, as required under the law. In addition to denouncing the dilatory administration of justice with regard to a case of dismissal that occurred in 2015, COSYFOP denounces the complacency of a justice system which hands down decisions that run counter to international conventions and the recommendations reiterated for several years by the ILO supervisory bodies.
9. 191. SNATEG recalls that, in addition to the dismissal and harassment of its leaders, the authorities have resorted to particularly violent police repression of its activities, including during a peaceful demonstration, held on 3 February 2019 in front of the Ministry for Labour, Employment and Social Security, to demand the reinstatement of trade union members who had been dismissed two years previously and the implementation of the recommendations of the Committee on the Application of Standards. On this occasion, all of the trade union leaders were held at the police station for seven hours, their mobile phones were confiscated and some were detained.
10. 192. SNATEG urges the Committee to compel the Government to comply with international standards on freedom of association, to implement without further delay the court decisions to reinstate its leaders, to review the decision to dissolve the union as requested by the ILO supervisory bodies, and thus to recognize the right of workers to join the trade union organization of their choice and to allow the union to carry out its activities without hindrance or interference.

C. The Government’s response

1. 193. In communications dated 15 May 2018 and 7 January 2019, the Government once again disputes that Mr Raouf Mellal, who signed the complaint as the President of the complainant organization, is a trade union representative, and maintains that SNATEG was dissolved voluntarily by a unanimous vote of members present at a general assembly held on 7 October 2017. The Government recalls that the voluntary dissolution of trade unions is provided for in section 29 of Act No. 90-14 of 2 June 1990 on the exercise of trade union rights, which stipulates that voluntary dissolution shall be decided by members of the trade union or duly appointed delegates, in accordance with the provisions of its statutes. It indicates that SNATEG’s statutes provide for voluntary dissolution. The authorities simply took note of this dissolution by removing the trade union’s reference number from the register of trade union organizations. The Government adds that Mr Mellal lodged an appeal seeking to overturn the voluntary dissolution of SNATEG, which was rejected by the Council of State in a decision handed down on 19 July 2018.
2. 194. With regard to the alleged unfair dismissal of 46 trade union leaders, of whom the complainant organization previously provided a list, the Government referred to the information provided in writing to the Committee on the Application of Standards (May–June 2018) and to the statement by the Government representative that, of the cases listed, a large majority had been settled through reinstatement, reassignment or voluntary retirement. However, a number of workers have not been reinstated and two registered union members were not part of the enterprise’s workforce.
3. 195. Furthermore, the Government contests the complainant organization’s allegation that a court ruling confirmed Mr Mellal as the legitimate President. On the contrary, the Government provides a copy of a letter from the Ministry of Justice stating that the El-Harrouch Court has not handed down any ruling with the reference put forward by the complainant organization recognizing Mr Mellal as the President of SNATEG. The Government confirms the existence of an internal conflict between Mr Boukhalfa and Mr Mellal over the presidency of the union and legal action brought in this respect by Mr Boukhalfa for usurpation of office.
4. 196. With regard to Mr Mellal’s situation, the Government provides, in its communication of November 2019, a copy of a decision of the Supreme Court of 3 October 2019 overturning the decision of the Guelma Court of Appeal of 27 November 2017, without a referral. The Government recalls that the decision of the Guelma Court had overturned the ruling of 21 September 2016 of the Guelma tribunal dismissing Mr Mellal’s appeal against his dismissal for third-degree professional misconduct. The Government states that Mr Mellal has exhausted all the rights of appeal available under the law in respect of his dismissal from the enterprise.
5. 197. The Government affirms that its role in the present case is limited to ensuring compliance with the legal and regulatory provisions on freedom of association. It considers that all the complainant organization’s allegations are without evidence and in light of the last information provided by the Government, it requests the Committee to consider the case as closed.

D. The Committee’s conclusions

1. 198. The Committee notes that the present case concerns allegations that an enterprise in the energy sector has refused to allow an officially registered trade union to carry out its activities, has undertaken a campaign of harassment and intimidation of the union’s officers and members and that the public authorities have refused to put an end to these violations of trade union rights or to enforce the court rulings in the union’s favour.
2. 199. The Committee examined this case taking into account the information provided in the complaint, as well as information from the other ILO supervisory bodies that have examined the case since its last examination in June 2018, in particular the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and the conclusions of the Committee on the Application of Standards of the International Labour Conference, based on the comments of the CEACR. The Committee also had access to information from the high-level mission requested by the Committee on the Application of Standards, which visited the country in May 2019 and of which some of the conclusions and recommendations referred to the situation of SNATEG.
3. 200. In its previous examination of the case, the Committee noted with concern the especially large number of union representatives (members of its National Board, national committees, national federations and trade union branches in the wilayas) who, according to the complainant, have been wrongfully dismissed by the enterprise. Noting that the Government had received from SNATEG a list of the names of all the representatives who had been dismissed, the Committee urged the Government to make inquiries in order to establish the grounds for these dismissals and to keep it informed of the outcomes and measures taken. At that time, the Committee recalled the need, if the dismissals proved to have resulted from legitimate trade union activities, to take the necessary steps to secure the workers’ reinstatement without loss of pay and ensure the application of the corresponding legal sanctions against the enterprise. If reinstatement was not possible for objective and compelling reasons, the workers concerned should be paid adequate compensation so as to constitute a sufficiently dissuasive sanction against anti-union dismissals. The Committee notes that, according to SNATEG, the majority of workers have been reinstated at the enterprise, but without any compensation for unfair dismissal. Furthermore, these workers were reportedly forced to leave the union and join another union present in the enterprise. In this regard, the Committee recalls that any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1198]. The Committee requests the Government to provide information thereon.
4. 201. According to SNATEG, the union leaders who refused this blackmail from the enterprise still have not been reinstated. This includes trade union members who have a legal order for reinstatement that the enterprise is refusing to carry out (Mr Raouf Mellal, President of the trade union; Mr Kouafi Abdelkader, Secretary-General; Mr Benarfa Wahid, Chairperson of the eastern national committee; Mr Araf Imad, Chairperson of the southern national committee; and Mr Djeha Makhfi, Chairperson of the MPVE union section). This also involves trade union members for whom the labour inspectorate has requested reinstatement, in application of section 56 of Act No. 90-14. However, the inspectorate did not complete the reinstatement process on the instructions of the Ministry of Labour (Mr Benhadad Zakaria, member of the national committee; Mr Slimani Mohamed Amine Zakaria, Chairperson of the national committee for young workers; and Mr Chertioua Tarek, Chairperson of the communications committee). Lastly, this concerns trade union members who have taken legal action, but are still awaiting a decision (Mr Mekki Mohamed, member of the national committee; Mr Benzine Slimane, President of the National Federation of Security and Prevention Workers; Mr Guebli Samir, Chairperson of the central national committee; and Mr Meziani Moussa, President of the National Federation of Gas and Electricity Distribution Workers). These leaders were all dismissed in 2017, with the exception of Mr Mellal, who was dismissed in 2015.
5. 202. The Committee notes that the Government sent a list to the Committee on the Application of Standards of the 107th Session of the International Labour Conference (May–June 2018) providing information on the situation of the dismissed trade union leaders. A majority of cases have been resolved through reinstatement in the workplace. The Government does not specify whether this reinstatement was accompanied by the payment of compensation for unfair dismissal. The list provided by the Government further confirms that a number of workers have not been reinstated and mentions two registered trade unionists who are not part of the enterprise’s workforce, including Mr Abdelkader Kouafi, Secretary-General of SNATEG. The Committee also notes that the Government’s list does not provide information regarding the situation of Mr Mellal, President of the trade union, or Ms Sarah Benmaiche, union delegate and member of the SNATEG Women’s Committee, who was allegedly harassed and then dismissed and whose reinstatement, ordered by the courts in 2015, will never be carried out by the enterprise in the absence of coercive measures from the public authorities.
6. 203. The Committee notes with regret that despite the time elapsed, the public authorities appear not to have taken any tangible action to enforce the court and labour inspectorate decisions ordering the reinstatement of trade unionists. The Committee recalls that the list of unresolved cases was previously sent to the Government for investigation and action. Furthermore, the Committee notes that the high-level mission, referring to the situation of SNATEG, expressed concern about the non-enforcement of decisions and the excessive judicialization of procedures, which could create a climate of impunity and cast doubt on the impartiality of the judiciary. The Committee notes with concern that this excessive judicialization could result in several dismissed leaders being unable, for lack of resources, to take legal action to request their reinstatement, as reported by SNATEG. The Committee recalls that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned. [See Compilation, para. 1139]. In view of the above, the Committee expects the Government to take all necessary measures to ensure that court and labour inspectorate decisions, some of which date back to 2017, regarding the reinstatement of SNATEG members are executed without further delay and without loss of pay. The Committee requests the Government to keep it informed of any new developments in this regard. The Committee also expects the Government to take all the necessary measures to ensure that the appeals still pending are dealt with without further delay. The Committee requests the Government and the complainant organization to keep it informed of any new developments regarding the status of the appeals.
7. 204. As regards the situation of Ms Sarah Benmaiche, the Committee notes with concern the indication in the report of the high-level mission that she, like her family, has been subjected to intimidation which has led her to withdraw from trade union action. Noting that Ms Sarah Benmaiche does not appear in the list of unresolved cases of dismissal provided by the complainant organization, the Committee urges the Government to inform it without delay of her professional situation and to specify whether she has been reinstated by the enterprise.
8. 205. The Committee also recalls its previous recommendation concerning the situation of Mr Abdallah Boukhalfa, whose dismissal was overturned by a decision of 15 December 2014 of the El-Harrouch Court, which also ordered the enterprise to pay damages and cover legal costs. In order to follow up on its recommendation, while noting that Mr Boukhalfa is not included in the list of unresolved cases of dismissal provided by the complainant organization, the Committee urges the Government to indicate whether the Supreme Court, before which the enterprise brought this case, has handed down its decision in this regard and to clarify Mr Boukhalfa’s professional situation.
9. 206. The Committee takes note of the information concerning the legal action brought by Mr Mellal, President of SNATEG, following his dismissal in 2015. It notes that the Guelma tribunal, in a decision of 21 September 2016, dismissed the complaint requesting the cancellation of the dismissal decision. The tribunal acknowledged the violation of the legal provisions requiring any summons to a disciplinary board to be issued seven days in advance; Mr Mellal was notified of the summons on the day of the meeting. The tribunal also recognized the violation of sections 54 and 55 of Act No. 90-14, which require the prior notification of the trade union in cases of disciplinary measures against a trade union representative. However, the tribunal dismissed the complaint on the basis of its reading of section 73-4 of Act No. 90-11 on labour relations (conditions for overturning a dismissal for failure to comply with procedures). The Guelma appellate Court (Social Chamber), to which Mr Mellal appealed, handed down its decision on 27 November 2017. In this regard, the court recognized Mr Mellal’s status as a trade union delegate and confirmed that the enterprise had failed to comply with its obligation to inform the union before taking any disciplinary action against him. Thus, the court overturned the ruling of the Guelma tribunal, which “did not properly assess the facts and did not apply the law appropriately”. The Committee notes that the enterprise lodged a cassation appeal with the Supreme Court on 4 April 2018. The Supreme Court issued a ruling on 3 October 2019 in which it overturned the ruling of 27 November 2017 of the Guelma Court on the grounds that the latter was wrong to agree to rule on the appeal of the Guelma tribunal decision of 21 September 2016, to which the case was referred in the first and last instance under section 73-4 of Act No. 90-11.
10. 207. The Committee notes the indication that neither Mr Mellal nor SNATEG were notified of the Supreme Court’s decision, as required under the Code of Civil and Administrative Procedure. In addition to alleging the dilatory administration of justice in a case of dismissal that occurred in 2015, COSYFOP denounces a complacent judiciary, which has handed down decisions contrary to international conventions and the recommendations reiterated for several years by the ILO supervisory bodies. The Government indicates that Mr Mellal has exhausted all the appeals available under the law with respect to his dismissal from the enterprise. The Committee notes with deep concern the particularly long period of time that has elapsed without a final decision from the courts regarding Mr Mellal’s dismissal, which took place in 2015. The Committee recalls that it has always considered 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 [see Compilation, para. 1138]. The Committee regrets that a prompt procedure considered to be impartial does not appear to have been ensured in this case. The Committee notes with concern that the bodies examining the merits of the case found serious failures by the enterprise to comply with its legal obligations of notification, which those bodies assert denied Mr Mellal the opportunity to hear the grievances against him and to prepare his defence, even though the sanction foreseen was dismissal. However, the ruling of the Guelma tribunal did not take into account these serious violations of Mr Mellal’s right to defence in a more consistent manner when reviewing the dismissal measure.
11. 208. Furthermore, the Committee notes with concern SNATEG’s allegations of the judicial harassment of its officers, particularly its President. The Committee notes the numerous lawsuits brought between 2017 and 2018, some of them initiated by the Government itself, against SNATEG leaders Mr Mellal, Mr Kouafi and Mr Slimane, and the convictions for slander handed down by the courts imposing prison sentences and fines. Lastly, the Committee is concerned at COSYFOP’s indication that recourse to the courts, particularly by the Government, is now systematically used to obstruct trade union action, and the fact that the sentences handed down are increasingly severe, as an additional means of intimidation. The Committee, not wishing to enter into the substance of the court rulings handed down, recalls that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end, workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language. The Committee also draws the Government’s attention to the fact that the systematic threat of criminal charges in response to legitimate opinions of trade union representatives may have an intimidating and detrimental effect on the exercise of trade union rights [see Compilation, paras 236 and 237]. The Committee expects the Government to establish a harmonious and stable labour relations climate in which trade union leaders can carry out their activities in defence of their members’ interests without fear of criminal prosecution or imprisonment.
12. 209. The Committee notes the diverging opinions of the Government and the complainant organization regarding the voluntary dissolution of SNATEG. The Committee notes the Government’s indication that SNATEG was dissolved voluntarily following a unanimous vote of members present at a general assembly held on 7 October 2017. The Ministry of Labour, Employment and Social Security was notified of this dissolution on the same day by means of a report drawn up by a court officer. The Government, recalling that the voluntary dissolution of a trade union organization is carried out in accordance with Act No. 90-14 of 2 June 1990 and the statutes of the organization concerned, states that it simply took note of that dissolution by acknowledging receipt of the report in a letter addressed to Mr Abdallah Boukhalfa and by removing the reference number of the trade union from the register of trade union organizations. The Government adds that Mr Mellal lodged an appeal to overturn the voluntary dissolution of SNATEG but it was rejected by the Council of State in a final decision handed down on 19 July 2019. The Committee notes that, for its part, SNATEG denounces this dissolution as government interference in its internal functioning. According to SNATEG, the decision to annul the administrative registration of the union (Administrative Decision No. 297 of 16 May 2017) is being used by the enterprise, including before the courts, to prevent the union from carrying out its activities. In June 2017, the Government denied before the Committee on the Application of Standards that it had taken such an administrative decision. The Government subsequently issued a press release on 3 December 2017 announcing the voluntary dissolution of SNATEG under Act No. 90-14, following receipt of a court official’s report. However, the SNATEG points out that, under section 29 of the Act, voluntary dissolution shall be announced by the members of the trade union organization or their duly appointed delegates in accordance with the provisions of its statutes. SNATEG points out that its statutes provide that dissolution shall be decided at a national congress. The general assembly to which the Government refers in its press release therefore had neither the competence nor the authority to decide on dissolution. SNATEG adds that, contrary to the Government’s indications, a national congress was held on 6 and 7 December 2017 at its headquarters, with the participation of all delegates from the wilayas, which unanimously decided not to dissolve the union. The deliberations of the congress and the decisions taken, including the decision not to dissolve the trade union, were the subject of a report drawn up by a court official, which was transmitted to the Ministry of Labour, Employment and Social Security. SNATEG alleges that the legal decisions rejecting the appeals to overturn its administrative dissolution are serious violation of the principles of freedom of association recognized in the conventions ratified by Algeria.
13. 210. The Committee notes that both the complainant organization and the Government indicate that the matter of the leadership of SNATEG has been referred to the courts. The Committee notes that the complainant organization refers to several court decisions recognizing Mr Mellal as the legitimate President of the union. These include an order by the investigating judge of the El-Harrouch Court of 23 January 2017 dismissing Mr Boukhalfa’s appeal against Mr Mellal, and the decision of the Guelma Court of 27 November 2017 ordering Mr Mellal’s reinstatement to his position as leader of SNATEG. The Committee notes, however, that the Government contests the allegation that Mr Mellal has been confirmed as a legitimate President by the judiciary. To this effect, the Government provides a copy of a letter from the Ministry of Justice indicating that the El Harrouch Court has not handed down any ruling with the reference put forward by the complainant organization recognizing Mr Mellal as the President of SNATEG.
14. 211. The Committee notes that the dissolution of SNATEG was first raised before the Committee on the Application of Standards in June 2017, when the Government denied the existence of an administrative decision to dissolve the union. However, the Committee notes that, shortly afterwards, the Government issued a press release announcing the dissolution of SNATEG, reportedly following a general assembly of the union convened by Mr Boukhalfa, which decided on the dissolution. The Committee notes in this regard that SNATEG’ statutes provide that its dissolution may only be decided by a national congress. The general assembly convened in October 2017, to which the Government refers, does not appear to be the competent body to decide on the dissolution of the SNATEG under the texts governing the functioning of the union. Furthermore, the Committee notes that, while SNATEG claims that a congress was held in December 2017 confirming the non-dissolution of the union and that a report of that congress was communicated to the Government, the authorities do not appear to have taken this into account when they upheld the decision to dissolve the union. This situation naturally raises questions regarding the possible interference by the authorities. Moreover, the Committee notes that no one other than the Government representatives wished to meet the high-level mission to contradict the position of Mr Mellal and the SNATEG representatives challenging the decision to dissolve the trade union.
15. 212. In the light of the foregoing, the Committee considers it necessary to determine the circumstances that led to the administrative decision approving the dissolution of SNATEG despite evidence to the contrary presented to the authorities. The Committee urges the Government to carry out an independent investigation to this effect. In addition, the Committee, referring to the recommendations made by the Commission on the Application of Standards in June 2019, expects the Government to review the decision to dissolve SNATEG without delay and urges it to keep it informed of any action taken in this regard.
16. 213. The Committee also notes with concern SNATEG’s allegations of a particularly violent police crackdown on a peaceful demonstration organized by union members on 3 February 2019, in front of the Ministry of Labour, Employment and Social Security, to demand the reinstatement of trade union members and the implementation of the recommendations of the Committee on the Application of Standards. On that occasion, all of the demonstrating trade union leaders were reportedly arrested and held at the police station for seven hours, their mobile phones were confiscated, and two members were detained. Noting that the Government has not provided any observations concerning these allegations, the Committee recalls that, during trade union demonstrations, the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. Workers’ organizations should respect legal provisions on public order and abstain from acts of violence in demonstrations. The Committee would also like to recall that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association. The Committee would also like to draw the Government’s attention to the fact that it is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions [see Compilation, paras 217, 221, 121 and 127]. The Committee expects the Government to ensure respect for the above.
17. 214. In general, the Committee wishes to express its deep concern about the cumulative difficulties encountered by SNATEG leaders in exercising their legitimate union rights in this case. These difficulties include a campaign of repression led by an enterprise against the leaders and members of a legally registered trade union, mass dismissals and impunity regarding the enterprise’s refusal to enforce reinstatement decisions, the dilatory administration of justice, difficulties in applying the law which led to the status of a trade union leader being called into question, interference in trade union activities, judicial harassment, and acts of police violence and intimidation during peaceful demonstrations. The Committee notes in particular that the present case reveals a lack of legal and practical protection against acts of anti-union discrimination for SNATEG leaders and members. The Committee notes with regret that these difficulties have undoubtedly been detrimental to the conduct of the trade union’s activities and have also constituted intimidation impeding the free exercise of freedom of association. Consequently, the Committee urges the Government to implement its recommendations without delay in order to ensure within the enterprise an environment in which trade union rights are respected and guaranteed for all trade union organizations and in which workers are able to join the trade union of their choice, elect their representatives and exercise their trade union rights without fear of reprisals and intimidation.
18. 215. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office, if it so wishes.

The Committee’s recommendations

1. 216. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects the Government to take all necessary steps to ensure the execution without further delay of court and labour inspectorate decisions concerning the reinstatement of SNATEG members without loss of pay. The Committee requests that the Government keep it informed of any new developments in this regard.
   • (b) The Committee also expects the Government to take all necessary steps to ensure that outstanding appeals are dealt with without further delay. The Committee requests the Government and the complainant to keep the Committee informed of any new developments regarding the status of the appeals.
   • (c) The Committee, noting with concern the indication that Ms Sarah Benmaiche, like her family, has been subjected to intimidation which has led her to withdraw from trade union action, urges the Government to inform it without delay of her professional situation, in particular whether she has been reinstated by the enterprise. Furthermore, the Committee requests the Government to indicate whether the Supreme Court has handed down its decision in the case of the dismissal of Mr Abdallah Boukhalfa and to clarify his employment situation. Finally, the Committee requests the Government to provide information in relation to the allegations that most of the workers reinstated in the enterprise were forced to disaffiliate from SNATEG and join another union present in the enterprise.
   • (d) The Committee expects the Government to establish a harmonious and stable climate of industrial relations in which trade union leaders can carry out their activities to defend the interests of their members without fear of criminal prosecution and imprisonment.
   • (e) The Committee urges the Government to conduct an independent investigation to determine the circumstances that led to the administrative decision to dissolve SNATEG, despite evidence to the contrary presented to the authorities. Furthermore, the Committee, referring to the recommendations made by the Committee on the Application of Standards of the International Labour Conference in June 2019, expects the Government to review the decision to dissolve SNATEG without delay and urges it to keep the Committee informed of any action taken in this regard.
   • (f) The Committee expects the Government to ensure respect for freedom of association when the police intervenes during peaceful demonstrations.
   • (g) The Committee firmly urges the Government to implement its recommendations without delay in order to ensure an environment in the enterprise in which trade union rights are respected and guaranteed for all trade union organizations, and workers are able to join the union of their choice, elect their representatives and exercise their trade union rights without fear of reprisals and intimidation.
   • (h) The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office, if it so wishes.