Rapport intérimaire - Rapport No. 350, Juin 2008

Cas no 2592 (Tunisie) - Date de la plainte: 17-SEPT.-07 - Clos

Allegations: Refusal to recognize the General Federation of Higher Education and Scientific Research (FGESRS), anti-union discrimination against union members and violations of the right to collective bargaining

1. 1540. The complaint is contained in a communication from Education International (EI) and the General Federation of Higher Education and Scientific Research (FGESRS) dated 17 September 2007. The FGESRS sent additional information in communications dated 17 October and 8 November 2007.
2. 1541. The Government sent its observations in communications dated 25 October and 3 December 2007.
3. 1542. 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 complainants’ allegations

1. 1543. In a communication dated 17 September 2007, EI and the FGESRS point out that the Government is violating international labour standards on freedom of association by refusing to recognize the FGESRS as the organization legitimately representing the workers of the higher education sector, intensifying acts of anti-union discrimination against FGESRS members and refusing to engage in collective bargaining with the federation.
2. 1544. First, the complainants point out that the FGESRS, which is affiliated to the Tunisian General Labour Union (UGTT), is the only organization to represent the various bodies and categories of university teachers and researchers. The FGESRS was the outcome of a unification congress held on 15 July 2006 by the UGTT. When the FGESRS was established, it was decided to dissolve the unions affiliated to the UGTT which had until then represented these bodies, namely, the Trade Union of Higher Education Lecturers and Professors and the General Trade Union of Higher Education and Scientific Research (SGESRS). The complainants state that the procedure followed to organize the unification congress of 15 July 2006 complied with Circular No. 67 of 8 March 2004 concerning the organization of unification congresses at the university level, as well as the internal regulations of the UGTT, whose internal regulations department had been required to obtain the consent of the trade union structures affected by the unification through individual meetings followed by a sectoral council meeting. Moreover, owing to an existing dispute within the SGESRS, the complainants point out that the union had appointed a new executive committee in 2003 following the decision made by the UGTT’s executive committee in 2002 to dissolve the previous executive committee, appointed in 2001. Some members of the SGESRS’s executive committee filed court appeals challenging the UGTT’s 2002 decision. The complainants consider that these court appeals were at odds with the UGTT’s internal regulations, which stipulate that internal disputes should be resolved exclusively on the basis of the standards set out in the organization’s by-laws and within its structures, in an atmosphere of tolerance and mutual respect (article 81 of the internal regulations). The complainants state that, following an assessment report, the executive board of EI recognized the executive committee appointed on 14 June 2003, with Mr Kaddour as General Secretary, as legitimately representing the SGESRS. The complainants also point out that the executive committee of the General Trade Union of Professors and Qualified Lecturers, whose General Secretary is Mr Neji Gharbi, chose not to participate in the work leading up to the unification process for reasons that were unrelated to union matters.
3. 1545. Together with their complaint, the complainants sent the communiqués of 25 February and 29 April 2006 signed by the representatives of trade union delegations of qualified teachers and of five of the six first-level unions of educational technologists which called for the establishment of a united trade union structure to defend the whole body of permanent teaching staff in the university sector, as well as a copy of the motion adopted by the joint sectoral council meeting on higher education on 15 June 2006 advising the UGTT, among other things, to restructure trade union representation within the higher education sector “in order to guarantee the true and fair representation of all those involved in the educational and scientific process” and to hold an extraordinary congress on 15 July 2006 for the adoption of a single and united structure that would be representative and independent. The complainants also presented documents concerning the establishment of the FGESRS by the unification congress of 15 July 2006, in particular a communiqué from the UGTT dated 17 July 2006, a communication addressed to EI (letter from UGTT of 31 July 2006) and a communiqué to the Head of State (letter from UGTT of 25 January 2007) announcing the establishment of the FGESRS as the only structure authorized by the UGTT to represent university teachers and the dissolution of the Trade Union of Higher Education Lecturers and Professors and the SGESRS.
4. 1546. The complainants denounce the fact that the authorities refused to give effect to the UGTT’s decision to recognize the FGESRS as the only representative structure of the higher education and scientific research sector and misled the public by maintaining relations with the trade union structures dissolved by the UGTT or by favouring the implementation of parallel puppet structures. The complainants consider that, since the unification congress of 15 July 2006, the Government has been guilty of serious interference in the affairs of trade union organizations, in violation of Convention No. 87.
5. 1547. With regard to interference in the affairs of trade union organizations, the complainants allege that the Ministry of Higher Education, Scientific Research and Technology, through a press campaign and acts of intimidation and harassment against teachers, used all possible means to stop the FGESRS from carrying out normal activities. Referring to the principles upheld by the Committee on Freedom of Association, the complainants consider that these Government acts violate the freedom enjoyed by trade union organizations to determine for themselves, without state interference, the manner in which university teacher representatives shall be represented. Moreover, the complainants allege that the Minister encouraged the Director of the Higher Institute of Technological Studies (ISET) of Rades to convene a meeting to establish a temporary committee of technologists which would act as the Ministry’s interlocutor, whereas this body is specifically represented within the FGESRS. With regard to the principles of the Committee on Freedom of Association, the complainants consider that Article 3 of Convention No. 87, as well as the rights of university teachers affiliated to the UGTT, are being violated by “the announcement of elections by ministerial decree”. Although there may have been disagreements between universities, the complainants state that these were resolved within the UGTT by the unification congress of 15 July 2006, in accordance with the principle whereby trade union organizations have the right “to resolve disagreements themselves without interference by the authorities, with the Government being responsible for creating an atmosphere in which such disagreements can be resolved”.
6. 1548. The complainants enumerate steps taken by the UGTT to establish normal relations between the FGESRS and the public authorities. In particular, the UGTT had sent them a list of FGESRS members which also identified its executive committee, a request to open negotiations which contained a list of demands that had been unchanged for seven years, letters addressed to dissident union members instructing them to stop using the official stamps and documents of dissolved unions and a letter to the Head of State referring to the situation. The complainants also sent a copy of a communiqué addressed to the Head of State in which the UGTT denounces the fact that the Ministry of Higher Education, Scientific Research and Technology continues to maintain relations with the former general secretaries of the unions that were dissolved when the FGESRS was established. Similarly, the complainants sent copies of the communications of December 2006 addressed to the former General Secretary of a union that was dissolved when the FGESRS was established, Mr Néji El Gharbi, and to Mr Béchir Hamrouni, whose union mandate had been suspended by the UGTT in April 2002. In these letters, the UGTT instructed Mr El Gharbi and Mr Hamrouni to stop using the official stamp and documents of their dissolved general unions and to return them immediately or face disciplinary measures.
7. 1549. The complainants point out that because of the support of academics and the involvement of the International Labour Office, the Government agreed to meet an FGESRS delegation. However, the Government continues to hold meetings with the unions dissolved by the UGTT. While the complainants are not questioning the Government’s right to organize formal or informal meetings with the parties of its own choosing, they nonetheless recall that collective bargaining should be carried out exclusively with the most representative organization, as provided for by national legislation (section 38 of the Labour Code) and international instruments. They add that the representativeness of the FGESRS is beyond question given that the federation has 3,700 members out of 8,615 university teachers, with the objective of soon reaching 4,300 members, namely half of university teachers.
8. 1550. In addition to the situation concerning the FGESRS, the complainants allege that the responsible ministry, that is, the Ministry of Higher Education, Scientific Research and Technology, is implementing a systematic and deliberate policy of discrimination against union members in the sector. The complainants consider that the various acts of anti-union discrimination, such as pressure, threats, administrative measures and physical assaults which are being intensified against union members are violations of the provisions safeguarding the protection of union members set out in Convention No. 98, the guarantees of which, as recalled by the Committee on Freedom of Association, should also be enjoyed by civil servants. The complainants denounce the intensification of these acts and provide some examples of anti-union measures and assaults: threats of disciplinary action made by the directors of the Kairouan and Rades ISET against union members who went on strike on 5 April 2007; the ban on trade union general assemblies during the 2006–07 academic year at the Rades ISET; refusal to provide a research grant to enable a member of a first-level union at the Rades ISET to participate at an international conference; refusal by the responsible ministry to allow the holding of a conference on “trade union rights and academic freedoms” organized by the first-level union of the Faculty of Arts and Humanities of the University of Sfax on 14 March 2007; the exclusion of Ms Kaouther Machta, senior technologist and union member at the Sfax ISET, from the recruitment panel for assistant technologists and refusal to provide her with a grant to participate at an international conference, despite the approval of the Director and scientific council of ISET; refusal of universities in general, and particularly the University of Gafsa, to send files concerning the transfer of unionized teachers working in the interior of the country to the responsible ministry within the given deadlines, deliberately making it impossible for their files to be examined; systematic refusal to extend the active service of teachers approaching retirement age when the teachers in question are union members; assault on union member, Moez Ben Jabeur, by the Director of the Tunis Preparatory Engineering Institute, for which a complaint for assault and battery was filed with the Attorney-General of the Court of First Instance of Tunis under file No. 7005283/2007 of 25 January 2007; refusal by the Ministry of Higher Education, Scientific Research and Technology to sign decrees confirming permanent posts for some unionized higher education assistants, despite the favourable and unanimous opinions of the joint committee, thereby preventing their career development and imposing surreptitious punishment for their union activities and for having participated in the strike of 5 April 2007 organized by the FGESRS.
9. 1551. The complainants denounce the violations by the authorities of the right to collective bargaining. Not only do the authorities disregard the principle of bargaining in good faith, but they also restrict the scope of negotiations by limiting the subjects to be negotiated, in violation of Convention No. 98. The complainants point out that, although the Government agreed to receive an FGESRS delegation and to negotiate some demands with the federation, the Government’s change of attitude does not hide evidence of its failure to comply with the requirement of bargaining in good faith. Indeed, the Government involved three organizations, described as bogus trade union structures by the complainants, in the negotiations. According to the FGESRS and EI, the purpose of this tactic is to generate among the public the impression of a representation crisis in the university sector, thus enabling the Government to sidestep the legitimate demands of the partners concerned.
10. 1552. Lastly, the complainants also denounce the excessive restrictions imposed by the Government on the subjects that can be negotiated. They recall that one of the FGESRS’s demands was the establishment of a permanent consultation structure to discuss teaching and professional matters, including the draft law on higher education and the status of the various teaching bodies. Such a body would facilitate consultations in a sector that has been called upon to implement a quick global reform. According to the complainants, the Ministry’s refusal to establish such a consultative body, because of the risk of introducing joint management in the sector, is contrary to the principle of the participative and partnership-based management of universities as recommended by the UNESCO World Declaration on Higher Education for the Twenty-first Century, to which the Government is a signatory. Furthermore, the complainants question the Government’s attitude, vis-à-vis, the specific demands made by the FGESRS aimed at acknowledging and rewarding the increasing workload of academics. The Government postponed the examination of the FGESRS’s demands until the triennial collective bargaining procedures between the UGTT executive committee and the Government concerning general wage increases and the reduced purchasing power of all wage earners, despite the fact that similar agreements were concluded in other sectors during the same year. Furthermore, the Government requested the FGESRS to provide technical, administrative and financial solutions in order to convince the Ministry of Finance that these demands were justified; this is also at odds with the rules and established practices of social negotiations. Lastly, the complainants denounce the fact that the Ministry also made recognition of the demands’ relevance dependent on the acceptance of concessions in terms of the workload of academics. The complainants consider that this approach adopted by the Government shows its refusal to engage in serious and responsible social dialogue with FGESRS representatives, which resulted in a warning strike on 5 April 2007. After this strike, the Government adopted measures for granting managerial compensation to some teachers, thereby meeting some of the specific demands made by the FGESRS. The Government nonetheless refused to negotiate the other demands, considering that they came exclusively under its discretionary power.
11. 1553. In a communication dated 18 October 2007, the FGESRS describes the appeal made by the UGTT and EI to the highest state authorities to break the deadlock in the higher education sector, particularly so that the responsible ministry would recognize the FGESRS as the legitimate representative of university teachers and engage in sincere negotiations, and to halt the acts of anti-union discrimination against university teachers on account of their union activities. However, the FGESRS regrets the fact that these steps, particularly a meeting between the UGTT and the President of the Republic, were not followed up and merely demonstrate the authorities’ deliberate decision to violate the freedom of association of university personnel.
12. 1554. In a communication of 8 November 2007, the complainants describe the latest attempts made by the FGESRS with the Ministry of Higher Education, Scientific Research and Technology to resolve the outstanding problems, particularly a letter dated 9 October 2007 requesting a work meeting. When the authorities failed to respond, the FGESRS sent a second letter, dated 22 October 2007, which resulted in the organization of a meeting between the FGESRS delegation and the Minister’s private secretary on 1 November 2007. Nonetheless, not only did the Government maintain its stance concerning all the points to be negotiated, but it also convened and met the other trade union organizations, which, according to the complainants, constitutes yet another act of interference in union affairs. According to the complainants, it would also appear that the Government is confusing matters pertaining to the administration of affairs under its responsibility which can reasonably be considered to fall outside the scope of the negotiations and those which directly affect conditions of employment and cannot therefore be considered as such. Referring to the position of the Committee on Freedom of Association, the complainants point out that, although they agree with the principle that the determination of the broad lines of educational policy is not a matter for collective bargaining between the competent authorities and teachers’ organizations, although it may be normal to consult these organizations on such matters, free collective bargaining should be allowed on the consequences for conditions of employment of decisions on educational policy.
13. 1555. According to the complainants, the Government’s deliberate anti-union policy, implemented through its Ministry of Higher Education, Scientific Research and Technology, is threatening union activity in the sector and violating the provisions of Conventions on freedom of association and the right to collective bargaining which have been ratified by the Government.

B. The Government’s reply

1. 1556. In a communication dated 25 October 2007, the Government asserts its commitment to implementing, through legislation and national instruments, the provisions of the international Conventions that it has ratified and points out that Conventions Nos 87 and 98 and Convention No. 135, which it ratified recently, are no exception to this principle. It adds that trade union rights are enshrined in the national Constitution, as well as in labour law and are even included in the general statute of the civil service which governs relations between the State and civil servants.
2. 1557. Moreover, the Government points out that a permanent technical committee bringing together the Government and UGTT representatives has been established to discuss union action in the civil service, and that the triennial negotiations should be held within this committee on wage increases in the civil service and improvements in the conditions of employment of civil servants.
3. 1558. The Government adds that the meetings held with the FGESRS since its establishment in July 2006, as well as with other representatives of higher education personnel since 2005, show that freedom of association is recognized in the sector, and that the complaint itself demonstrates that the FGESRS has all the necessary means at its disposal to carry out its union activities, including strikes. However, while the Government recognizes that the FGESRS has the mandate to represent university teachers, as authorized by the UGTT, it recalls that there are other higher education unions, such as the Independent Trade Union of Educational Technologists, established in 2006 and not affiliated to the UGTT, in addition to the union structures dissolved by the UGTT, such as the SGESRS and the General Trade Union of Higher Education Lecturers and Professors, which challenged the dissolution decision before the courts and won their case before the courts of first instance. While awaiting a final court ruling, the Government expresses its wish to maintain dialogue and therefore continue to consult all union structures of the sector. According to the Government, the FGESRS is demanding the monopoly of trade union representation in the sector, which is at odds with the Labour Code and the relevant court ruling.
4. 1559. The Government indicates that, although the FGESRS, which was established in 2006, claims to have replaced the SGESRS, it has internal legitimacy problems. The Government recalls that the SGESRS, established by the UGTT in 2001, was dissolved in 2003 through the establishment of another union. The 2003 dissolution decision was challenged by the then executive committee of the SGESRS before international bodies (copy of letters sent by the SGESRS to EI (1 May 2002) and to the International Labour Office (3 July 2003)). The executive committee also took its case before the national courts, which it won before the courts of first instance. In this respect, the Government provides a copy of the ruling of the Court of First Instance of Tunis handed down on 7 June 2003 revoking the UGTT’s decision of 2 April 2002 to dissolve the SGESRS’s executive committee. At the same time, the UGTT decided to restructure its representation of higher education personnel and to this end organized a unification congress in July 2006. The two general unions dissolved by this congress in turn filed an appeal before the courts and obtained a decision in their favour. Consequently, the Government considers that the FGESRS is merely ignoring the legal consequences of judicial proceedings brought against it by the protesting trade union structures as well as court rulings by demanding that the Ministry of Higher Education, Scientific Research and Technology recognize it as the only structure representing all higher education personnel. Moreover, the Government recalls that it is bound by court rulings.
5. 1560. The Government adds that, in a spirit of conciliation, in 2004 it had proposed dialogue with all union structures and with the executive committee of the UGTT. Meetings held until then were interrupted by the FGESRS, which claims to be the only legitimate representative of the body of university professors, scientific researchers and technologists. The Government recalls that the SGESRS, established in 2003, had already attempted to obtain the same monopoly of representation and had disrupted lessons by holding strikes in March 2004 (which were not widely followed), June 2005 and April 2006. The Government observes that the SGESRS, established in 2003, by no means represented the majority of higher education and scientific research personnel. This explains why the UGTT organized the congress of 15 July 2006. However, instead of resolving the problem of representativeness, the congress further divided union members. More appeals were filed before the courts challenging the unification decision made by the UGTT, thereby increasing from two to four the number of legal proceedings under way concerning representation in the sector.
6. 1561. With its reply, the Government provided a document from July 2006 in which more than 1,200 teachers informed the Ministry of Higher Education, Scientific Research and Technology that they were opposed to the UGTT’s unification decision. The Government also provided a copy of letters dated 28 August 2007 that were sent to international bodies (EI, the International Trade Union Confederation (ITUC) and the International Labour Office) by the General Trade Union of Professors and Lecturers. In these letters, the General Secretary, Mr Neji Gharbi, denounces the unilateral decision taken by the UGTT to dissolve his organization and points out that the case had been taken before the national courts. According to the Government, this is therefore a case of disagreements between unions, the outcome of which will depend on the legal proceedings under way, rather than of interference in the affairs of trade union organizations by the Ministry of Higher Education, Scientific Research and Technology.
7. 1562. The Government states that it is still open to dialogue, including with the FGESRS, which it has received on several occasions (12 October 2006 and 13 January, 20 February, 16 April, 12 May, 11 June and 29 August 2007) as confirmed by articles in the press. The Government has also received other trade union structures. However, the Government observes that, rather than dialogue, the FGESRS was seeking a monopoly on collective bargaining.
8. 1563. The Government refutes the allegations that it refuses to negotiate and points out that dialogue with trade union structures has, on the contrary, resulted in the conclusion of several agreements, including an agreement signed on 18 April 2005 with the General Trade Union of Higher Education Lecturers and Professors, an agreement signed on 27 April 2005 with the first-level trade union of educational technologists, with the support of the UGTT, and an agreement signed on 3 April 2007 with the Independent Trade Union Committee of Educational Technologists. Moreover, the Government expresses its desire to maintain a calm social climate and states that, accordingly, it has adopted a number of measures concerning improvements in the moral and material conditions of higher education personnel. These measures include: the establishment of managerial compensation for research directors, following the example of laboratory managers (Decree No. 1342 of 15 March 2006); the doubling of compensation for members of teacher recruitment and promotion panels (Decree No. 1711 of 5 July 2007); the establishment of a managerial bonus for young researchers (Decree No. 1712 of 5 July 2007); the doubling of extra tuition compensation for teachers providing extra tuition at new universities (Decree No. 2318 of 11 September 2007); the establishment of a free annual medical check-up for teachers working in laboratories and research units to monitor occupational hazards (Circular No. 2888 of 22 February 2007). The Government provided copies of these official texts.
9. 1564. The Government adds that a triennial agreement was concluded with the UGTT on wage increases for the 2005–07 period. It indicates that the FGESRS is attempting to call into question matters that have already been the subject of an agreement that is valid until the end of 2007, by making demands and calling for excessive wage increases.
10. 1565. With regard to the allegations of anti-union discrimination, the Government gave the following details.
11. 1566. No disciplinary measures have been taken against teachers on account of their participation in a strike. However, some disciplinary measures have been taken against some teachers who were guilty of misconduct during strikes, in particular the destruction of public property. The Government points out that the teachers concerned can file appeals against these disciplinary measures and recognizes that, following complaints, the administrative tribunal has condemned the administration on several occasions for having acted beyond its authority. The Government also states that it has withdrawn or moderated legally established disciplinary measures against teachers and administrative personnel, in an effort to appease trade union organizations. For example, the Government has not followed up decisions to terminate the contracts of educational technologists who failed to respect their contractual obligations. The Government states that it was not aware of the scientific event that it allegedly prevented from taking place and refutes these allegations, which it qualifies as false. It states that participation in events abroad is determined by university chancellors without the involvement of the responsible ministry.
12. 1567. In reply to the allegations concerning the refusal to transfer unionized teachers, the Government points out that the procedure for assigning posts and making transfers follows clear rules that are monitored by the administrative tribunal and subject to sanctions. For example, when making such decisions, the minimum period required in order to apply for a transfer or the actual existence of a teaching service at the establishment to which the transfer has been requested are taken into account. Transfers are made when these requirements are met, while ensuring that universities in the interior of the country, which have increasing numbers of students, have enough teachers.
13. 1568. With regard to extending the active service of teachers beyond retirement age, the Government recalls that these exceptional measures are taken at the discretion of the administration with a view to meeting the real needs of specific disciplines. The Government also points out that it respects an agreement signed with a union affiliated to the UGTT in April 2005 on the conditions governing this measure. Furthermore, the Government states that it has adopted measures favouring teachers who join the civil service later in their careers or who are over 65 years of age when there is a real need in the establishment concerned, regardless of trade union membership.
14. 1569. With regard to allegations that the Government refused to sign decrees confirming permanent posts for union members, the Government points out that it examines the relevant files with a view to ensuring quality higher education. It states that files that are incomplete or arrive late are not taken into account given that panels make decisions only on applications that are submitted correctly. It adds that disputes can be taken to the administrative tribunal.
15. 1570. In its communication dated 4 December 2007, in reply to the additional information provided by the complainants, the Government refutes the allegations contained therein, which it considers to be unfounded. The Government states that, with regard to the last appeal made by the UGTT to the Head of State, the meeting was part of traditional consultations held with national organizations. The true purpose of the request was to establish the FGESRS as the recognized and exclusive interlocutor of the Ministry of Higher Education, Scientific Research and Technology something which is not possible in practice or law. With regard to the meeting with the private secretary of the Ministry of Higher Education, Scientific Research and Technology, the Government indicates that this was followed by a second meeting on 16 November 2007, which was boycotted by the FGESRS. This matter therefore relates to break down in dialogue caused by the very trade union organization that is accusing the Ministry of “manoeuvring”. Recalling the measures adopted by decree during the first half of 2007, the Government points out that these measures have a financial impact that the FGESRS refuses to take into account in its demands. The Government expresses its wish to assess this financial impact before engaging in new negotiations. Once the assessment has been made in consultation with the ministries concerned, negotiations should continue with a view to adopting global measures for 2008 during the traditional social negotiations between the Government and the UGTT. The Government recalls that wage increases in the civil service are established according to the triennial agreement concluded with the UGTT, and that the FGESRS cannot call this agreement into question.
16. 1571. The Government recalls that it has implemented a tried and tested and operational negotiation framework since 1990, as demonstrated by the numerous agreements concluded with the UGTT. The attitude of the FGESRS has almost resulted in a deadlock situation and has been criticized by teachers and trade union organizations alike. The Government reaffirms its willingness to pursue dialogue with all trade union structures, as demonstrated by the consultations held with the social partners, including the FGESRS, on the draft law on education before it was submitted to the Economic and Social Council, on which the UGTT is also widely represented.
17. 1572. The Government states that it is waiting for court rulings to be handed down, from which it will draw the appropriate conclusions concerning trade union representation in the sector. The Government points out that it has always adopted a lawful stance and refused to become involved in disagreements between unions. The Government thus concludes that the FGESRS has no grounds for the accusations relating to negotiations with structures whose dissolution was revoked by a court ruling.
18. 1573. With regard to the discriminatory measures against teachers on account of their union activities, once again, the Government refutes all of these “unfounded” allegations. It states that measures are taken on the basis of the legislation in force under the supervision of the administrative tribunal.
19. 1574. Recalling that the numerous meetings held with the FGESRS demonstrate its recognition by the public authorities, the Government points out that the strikes called for by the FGESRS did not result in any disciplinary measures. In this respect, the Government observes that the higher education and scientific research sector, as is the case for the entire civil service, benefits from respect for the principles of freedom of association and collective bargaining contained in Conventions Nos 87 and 98. The respect of this right is furthermore guaranteed by administrative law. According to the Government, the FGESRS is using all possible means to satisfy its demands, whereas these can be met only through consultations which respect the law, institutions and the agreements already concluded with the UGTT.

C. The Committee’s conclusions

1. 1575. The Committee observes that the present case concerns allegations of the authorities’ refusal to recognize the representativeness of FGESRS, established in 2006 and affiliated to the UGTT; anti-union discriminatory measures and acts against teachers on account of their union activities; and the Government’s disregard for the principles of collective bargaining.
   • Recognition of the FGESRS
2. 1576. The Committee notes that the FGESRS was established as the result of a unification congress organized by the UGTT on 15 July 2006 in order to represent, under a single structure, the various bodies and categories of university teachers and researchers. The Committee notes that this congress also decided to dissolve the unions affiliated to the UGTT which had until then represented these bodies, namely, the Trade Union of Higher Education Lecturers and Professors and the SGESRS. According to the complainants, the procedure followed to organize the unification congress of 15 July 2006 complied with Circular No. 67 of 8 March 2004 concerning the organization of unification congresses at the university level, as well as the internal regulations of the UGTT in terms of the consent of the unions affected by the unification. The Committee also notes that, according to the information provided by the Government and the complainants, some general unions were opposed to this unification process and thus to their dissolution. This was particularly the case for the Trade Union of Higher Education Lecturers and Professors and the dissident executive committee (elected in 2001) of the SGESRS. The Committee notes that the dissolution was challenged before the national courts and notes the statement made by the Government – which does not provide copies of the rulings in question – that these trade union organizations had the dissolution decisions revoked by the courts of first instance. The Committee requests the Government to provide a copy of the court ruling of first instance revoking the decision to dissolve the general unions made by the unification congress of 15 July 2006 and to keep it informed of the outcome of proceedings that are under way.
3. 1577. In this respect, the Committee wishes to recall that the principle laid down in Article 2 of Convention No. 87 that workers and employers shall have the right to establish and join organizations of their own choosing implies for the organizations themselves the right to establish and join federations and confederations of their own choosing. Similarly, the question as to whether a need to form federations and confederations is felt or not is a matter to be determined solely by the workers and their organizations themselves after their right to form them has been legally recognized [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 710 and 713].
4. 1578. With regard to the dispute that had existed within the SGESRS since 2002, the Committee notes that the union had appointed an executive committee in 2001 and that, following the UGTT’s decision of 2 April 2002 to dissolve this committee, a new one was appointed in 2003. Some members of the 2001 committee filed an appeal before the courts to challenge the dissolution decision made by the UGTT. The Committee notes that, in addition to having challenged its dissolution before international bodies (EI (1 May 2002) and the International Labour Office (3 July 2003)), the SGESRS executive committee appointed in 2001 took its case before the national courts and obtained a Court of First Instance ruling that revoked the UGTT 2002 decision to dissolve the SGESRS executive committee (ruling of 7 June 2003 of the Court of First Instance of Tunis). The Committee notes that, according to the complainants, this court appeal was at odds with the UGTT’s internal regulations, which stipulate that internal disputes should be resolved exclusively on the basis of the standards set out in the organization’s by-laws and within its structures, in an atmosphere of tolerance and mutual respect (article 81 of the internal regulations). The Committee also notes that, following an assessment report, the executive board of EI recognized the executive committee appointed on 14 June 2003, with Mr Kaddour as General Secretary, as legitimately representing the SGESRS. Lastly, the Committee notes that, in a letter dated December 2006, the UGTT instructed Mr Béchir Hamrouni, whose union mandate had been suspended by the UGTT in April 2002, to stop using the official stamp and documents of the SGESRS, which had been dissolved, and to return them immediately or face disciplinary measures. In this respect the Committee recalls that, where the decision to dissolve a trade union organization was freely taken by a congress convened in a regular manner by all the workers concerned, the Committee was of the opinion that this dissolution, or any consequence resulting from it, would not be regarded as an infringement of trade union rights [see Digest, op. cit., para. 679]. While noting that proceedings are still under way following the ruling of 7 June 2003 of the Court of First Instance of Tunis revoking the UGTT’s decision of 2 April 2002 to dissolve the SGESRS executive committee, the Committee is very concerned by the length of the proceedings, which, for an unnecessarily long period of time, may have prevented the SGESRS from functioning and organizing activities in the interest of its members. The Committee is of the opinion that, when a specific decision of the general assembly is challenged, it should be referred to the judicial authorities in order to guarantee an impartial, objective and expeditious procedure. Furthermore, recalling that justice delayed is justice denied [see Digest, op. cit., para. 105], the Committee expects that a final court ruling will be handed down very soon concerning the legitimate representation of the SGESRS and requests the Government to keep it informed in this respect.
5. 1579. Moreover, the Committee notes that neither the establishment of the FGESRS nor the activities that it will subsequently carry out as a representative of the various bodies and categories of university teachers and researchers appear to be contested by the Ministry of Higher Education, Scientific Research and Technology or by the other trade union organizations of the sector. It notes that the FGESRS took steps with the responsible authorities. In particular, it sent them a list of FGESRS members which also identified its executive committee, as well as a request to open negotiations which contained a list of demands. The Committee also notes that the FGESRS claims to have 3,700 members out of 8,615 university teachers, with the objective of soon reaching 4,300 members. Lastly, although the complainants acknowledge that the Government has received an FGESRS delegation on several occasions, they regret the fact that the Government convened these meetings only because of the support given to the federation by national and international trade union structures of the sector, and that the Government continues to negotiate in parallel with other trade union organizations, including those dissolved by the unification congress of 15 July 2006, with the deliberate aim of generating among the public the impression of a representation crisis in the university sector and sidestepping the FGESRS’s legitimate demands. The Committee further notes the allegation that the Government recently put into place parallel puppet trade union structures.
6. 1580. The Committee notes that, according to the Government, the meetings held with the FGESRS since its establishment in July 2006, as well as with other representatives of higher education personnel since 2005, show that freedom of association is recognized in the sector and that the complaint itself demonstrates that the FGESRS has all the necessary means at its disposal to carry out its union activities, including strikes. However, while the Government recognizes that the FGESRS has the mandate to represent university teachers, it recalls that there are also other higher education unions, such as the Independent Trade Union of Educational Technologists, established in 2006 and not affiliated to the UGTT, in addition to the trade union structures dissolved by the UGTT, such as the SGESRS and the General Trade Union of Higher Education Lecturers and Professors, which challenged the dissolution decision before the courts and won their case before the courts of first instance. The Committee notes the Government’s statement that, while awaiting a final court ruling, the Government will continue to consult all of the trade union structures of the sector. According to the Government, the FGESRS is demanding a monopoly of trade union representation in the sector, which is at odds with the Labour Code and the court rulings that have been handed down.
7. 1581. In view of the information at its disposal, and bearing in mind the principles recalled above, the Committee considers that it is not competent at this stage to form an opinion on the representativeness of the FGESRS. The Committee considers, however, that it is necessary to recall the following principles. First, the Committee recalls the fundamental aspect of the independence of the social partners in negotiations and emphasizes that participation in collective bargaining and in signing the resulting agreements necessarily implies independence of the signatories from the employer or employers’ organizations, as well as from the authorities. It is only when their independence is established that trade union organizations may have access to bargaining [see Digest, op. cit., para. 966]. Furthermore, the Committee considers that in order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect [see Digest, op. cit., para. 971]. In this respect, the Committee considers that, in order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence. The determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity [see Digest, op. cit., para. 967]. In this case, in view of the contradictory information given by the complainants and the Government, the recent history of the trade union movement in the higher education and scientific research sector, the legal proceedings under way, the process currently under way which appears to involve individual negotiations with various trade union structures of the sector and, lastly, the alleged favouritism shown by the Government towards non-representative trade union organizations, the Committee considers that, once the court rulings have been handed down and if it proves necessary, with the agreement of the FGESRS and the other trade union structures concerned, the Government should put in place an independent mechanism for the objective determination of the representativeness of the social partners in the sector. The Committee expects that the procedures for determining such representativeness, particularly the designation of an independent body for this purpose, will be established quickly by mutual agreement, and requests the Government to take all the appropriate measures to recognize the trade union structures whose representativeness in the sector has been objectively demonstrated and to formally recognize their right to conclude collective agreements. The Government is requested to indicate any developments in this respect. The Committee reminds the Government that it can avail itself of ILO technical assistance if it so wishes.
   • Acts of anti-union discrimination
8. 1582. The Committee notes with concern the long list provided by the complainants concerning the intensification of acts of anti-union discrimination, particularly by the authorities, affecting teachers affiliated to the FGESRS. In particular, these acts included threats of disciplinary action against union members who had participated in a strike; measures prohibiting trade union general assemblies; the refusal to allocate grants; refusal by the responsible ministry to allow a conference to take place; various measures taken by the authorities which were prejudicial to unionized teachers and prevented them from furthering their careers; the assault on union member, Moez Ben Jabeur, by the Director of the Tunis Preparatory Engineering Institute, for which a complaint for assault and battery was filed with the Attorney-General of the Court of First Instance of Tunis under file No. 7005283/2007 of 25 January 2007.
9. 1583. The Committee notes the replies provided by the Government concerning all of the points raised and, in particular, the statement that rights are guaranteed through the monitoring and sanctions of the administrative tribunal. The Committee wishes to remind the Government that it 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 [see Digest, op. cit., para. 817]. The Committee expects that the Government will ensure protection against anti-union discrimination and, deploring the assault on union member, Moez Ben Jabeur, requests the Government to keep it informed of any court rulings handed down in this respect.
   • Violations of the right to collective bargaining
10. 1584. With regard to the violations of the right to collective bargaining, the Committee notes that the complainants’ allegations relate not only to a violation of the principle of bargaining in good faith, but also to restrictions placed on the scope of collective bargaining. The Committee notes that, according to the complainants, the fact that the Government receives the FGESRS delegation, while continuing to receive other organizations that they describe as bogus union structures, constitutes a Government tactic aimed at generating among the public the impression of a representation crisis in the university sector, thus enabling the Government to sidestep the legitimate demands of the social partners concerned. Such an approach is a violation of the principle of bargaining in good faith. Moreover, the Committee notes the statement that the Government not only implements unnecessarily long time frames for negotiations, but also places excessive restrictions on the subjects that can be negotiated. The Government not only refused to implement a permanent consultation framework which would facilitate consultations in a sector called upon to implement a quick global reform, but it also refused to negotiate the specific demands made by the FGESRS aimed at acknowledging and rewarding the increasing workload of academics by postponing them until the triennial collective bargaining between the UGTT executive and the Government concerning general wage increases and the reduced purchasing power of all wage earners, despite the fact that similar agreements were concluded in other sectors during the same year. The Committee notes that, according to the complainants, this approach adopted by the Government, which shows its refusal to engage in serious and responsible social dialogue with FGESRS representatives, was softened only by strikes, in particular a warning strike held on 5 April 2007, which resulted in the Government adopting measures for granting managerial compensation to some teachers, thereby meeting some of the specific demands made by the FGESRS.
11. 1585. The Committee notes that the Government refutes the allegations that it refuses to bargain in good faith. The Government cites the various agreements concluded in recent years with trade union structures: the agreement of 18 April 2005 with the General Trade Union of Higher Education Lecturers and Professors; the agreement signed on 27 April 2005 with the first-level Trade Union of Educational Technologists, with the support of the UGTT; and the agreement signed on 3 April 2007 with the Independent Trade Union Committee of Educational Technologists. Moreover, the Government provides the texts of the measures concerning improvements in the moral and material conditions of higher education personnel adopted in 2006 and 2007. The Committee notes that, according to the Government, a tried and tested and operational negotiation framework has been implemented in Tunisia since 1990, as demonstrated by the numerous agreements concluded with the UGTT. A triennial agreement was concluded with the UGTT on wage increases for the 2005–07 period. The FGESRS is attempting to call into question matters that have already been the subject of agreements that are valid until the end of 2007, by making demands and calling for excessive wage increases. The Committee notes that the Government affirms its willingness to pursue dialogue with all trade union structures, as demonstrated by the consultations held with the social partners, including the FGESRS, on the draft law on education.
12. 1586. The Committee wishes to recall that, in its opinion, teachers do not carry out tasks specific to officials in the state administration; indeed, this type of activity is also carried out in the private sector. In these circumstances, it is important that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98 [see Digest, op. cit., para. 901]. The Committee further recalls that the determination of the broad lines of educational policy is not a matter for collective bargaining between the competent authorities and teachers’ organizations, although it may be normal to consult these organizations on such matters. However, free collective bargaining should be allowed on the consequences for conditions of employment of decisions on educational policy [see Digest, op. cit., paras 922 and 923]. Consequently, the Committee requests the Government to hold negotiations with the FGESRS and to keep it informed of any agreements concluded.
13. 1587. With regard to the Government’s argument that the triennial agreement with the UGTT prevents negotiations on the FGESRS’s wage demands, the Committee notes the complainants’ statement that this is a general agreement which, according to standard practice, does not prevent the conclusion of sectoral agreements with the responsible ministries. Furthermore, the Committee observes that the agreement with the UGTT will soon expire. In these circumstances, the Committee requests the Government to include the FGESRS’s wage demands in their negotiations.

The Committee's recommendations

1. 1588. In the light of its foregoing interim conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to provide a copy of the court ruling of first instance revoking the dissolution of the general trade unions by the unification congress of 15 July 2006 and to keep it informed of the outcome of proceedings that are under way.
   • (b) The Committee expects that a final court ruling will be handed down very soon concerning the legitimate representation of the SGESRS and requests the Government to keep it informed in this respect.
   • (c) In view of the contradictory information provided by the complainants and the Government, the recent history of the trade union movement in the higher education and scientific research sector, the legal proceedings under way, the process currently under way which appears to involve individual negotiations with various trade union structures of the sector and, lastly, the alleged favouritism shown by the Government towards non-representative trade union organizations, the Committee considers that, once the court rulings have been handed down and if it proves necessary, with the agreement of the FGESRS and the other trade union structures concerned, the Government should put in place an independent mechanism for the objective determination of the representativeness of the social partners in the sector. The Committee expects that the procedures for determining such representativeness, particularly the designation of an independent body for this purpose, will be established quickly by mutual agreement, and requests the Government to take all the appropriate measures to recognize the trade union structures whose representativeness in the sector has been objectively demonstrated and to formally recognize their right to conclude collective agreements. The Government is requested to indicate any developments in this respect. The Committee reminds the Government that it can avail itself of ILO technical assistance if it so wishes.
   • (d) The Committee expects that the Government will ensure protection against anti-union discrimination and, deploring the assault on union member Moez Ben Jabeur, requests the Government to keep it informed of any court rulings handed down in this respect.
   • (e) The Committee requests the Government to hold negotiations with the FGESRS and requests that the latter’s wage demands be included in these negotiations and to keep it informed of any agreements concluded.