Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

Cas no 2701 (Algérie) - Date de la plainte: 24-FÉVR.-09 - Clos

Allegations: The complainant organization alleges refusal by the authorities to register a union since 2002

1. 121. The complaint is contained in a communication from the National Union of Vocational Training Workers (SNTFP) dated 24 February 2009.
2. 122. The Government sent its observations in a communication dated 4 March 2010.
3. 123. Algeria has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 124. In a communication dated 24 February 2009, the SNTFP complains of the refusal of the authorities to register the organization since 2002, when the first application was made. The complainant considers that the Government is thereby contravening the provisions of Convention No. 87.
2. 125. The complainant organization states that it held a constituent meeting on 11 April 2002 in the presence of representatives of ten of the country’s wilayas (prefectures), at which the union adopted its by-laws and elected its national bureau. The union’s constitution was publicized, as the law requires, in a national daily news sheet. An application to register the union as duly constituted was filed with the Ministry of Labour and Social Security on 25 August 2002. In a reply dated 18 September 2002, the Labour Relations Directorate made a number of observations concerning the union’s by-laws and requested the files concerning three elected members of the national bureau, together with certification concerning the function of each of the founder members. According to the complainant organization, the required formalities were dealt with on 11 June 2003, in close collaboration with the relevant government department. Nevertheless, as there was no reply from the authorities, the SNTFP referred the matter to the Minister of Labour and Social Security on 13 September 2003. A reply was received on 2 December 2003, with a request for the complete files of all the union’s founder members, which was inconsistent with the Ministry’s original request for the files of only three members of the national bureau.
3. 126. The complainant organization states that it complied with the Ministry’s unexpected request and deposited the complete files of the 33 founder members of the union in June 2004. However, the complainant states that, as no reply was received from the authorities, it resent the files on 24 November 2004 and again on 15 January 2005 only to be told verbally that it would have to amend the by-laws once more. The complainant organization states that it collaborated fully with the department concerned in amending its by-laws, but maintains that, despite regular contacts with the Ministry of Labour and Social Security and open letters to the Head of Government between 2006 and 2008, there has been no word from the authorities.
4. 127. The complainant organization states that, following the ILO’s intervention with the Government in October 2008, it was contacted by the Ministry of Labour and Social Security during the same month and told that it would have to conclude a civil liability insurance policy, for which there is no legal requirement. The complainant organization nevertheless once again complied with the request and deposited the relevant insurance documents with the Social Dialogue Department on 22 October 2008.
5. 128. The SNTFP considers that the Ministry of Labour and Social Security does not want to register the union, and the Government is thus violating Convention No. 87.

B. The Government’s reply

1. 129. In a communication dated 4 March 2010, the Government offers explanations for the delay in dealing with the registration dossier and reports on the outcome of investigations conducted by members of the complainant organization’s national bureau.
2. 130. The Government indicates that the delays in dealing with the dossier are due to the number of observations made on the dossier and the time taken by the union to comply with them.
3. 131. The Government also states that investigations were conducted on the members of the SNTFP national bureau. These investigations revealed that seven of the 11 founder members of the national bureau had judicial records. For example, according to the Government, Mr Oukil Djilali, President of the SNTFP, was fined by the El Harrach court for contravening the law concerning organization, security and road traffic. Other founder members (Nader Omar, Tolba Boudjemâa) have also been fined for assault and verbal abuse. The Government also states that a number of the founder members also belong to a different union, which casts doubt on their loyalty to the members of the SNTFP.
4. 132. According to the Government, the judicial records of most of the founding members cast doubt on their credibility and good faith in exercising trade union office. Furthermore, the Government states that the individuals concerned attempted to conceal their records, which was a flagrant lack of transparency.

C. The Committee’s conclusions

1. 133. The Committee notes that, in this case, the allegations made by the complainant organization concern the refusal of the Ministry of Labour and Social Security to register the SNTFP, established in April 2002, following an application for registration filed in August 2002.
2. 134. The Committee notes that according to the information supplied by the complainant organization, the SNTFP held a constituent meeting on 11 April 2002, when it adopted its by-laws and elected a national bureau. In accordance with the law, the union’s constitution was publicized in a national daily news sheet. The Committee notes that the union filed its first application for registration with the Ministry of Labour and Social Security on 25 August 2002, that this gave rise to a reply from the Labour Relations Directorate in September 2002 with a request for amendments to the union by-laws and for the files of three of the national bureau’s elected members including formal documentary certification of their union functions. According to the complainant organization, the necessary formalities were dealt with on 11 June 2003 in close collaboration with the department concerned. However, the lack of any response yet again from the administration prompted the SNTFP to try to restart the proceedings in September 2003, which led to a reply dated 2 December 2003 requesting the union to provide complete files of all the union’s founder members, a request which, in the view of the complainant organization, was inconsistent with the Ministry’s original request for the files of only three members of the national bureau. The Committee notes that, despite all this, the complainant organization states that it once again complied with the new request and deposited the complete files of the 33 founder members in June 2004. The Committee notes that, following the attempt by the union to restart proceedings, it was told verbally that the by-laws had to be changed again and cooperated fully with the Ministry to that end. The Committee notes that the union complains of the absence of any response from the administration, despite regular contacts with the Ministry of Labour and Social Security and open letters to the Head of Government between 2006 and 2008.
3. 135. The Committee notes the statements to the effect that, following an intervention with the Government by the ILO in October 2008, the Ministry of Labour and Social Security contacted the complainant organization to inform it of the need to conclude a civil liability insurance policy which, according to the SNTFP is not a legal requirement. The complainant organization states that it complied once again with the request and deposited the relevant insurance documents with the Social Dialogue Department on 22 October 2008 (the complainant organization has supplied a copy of all the correspondence with the administration). Lastly, the Committee notes that, according to the SNTFP, there is no real wish on the part of the Ministry of Labour and Social Security to give the approval required, in contravention of the provisions of Convention No. 87.
4. 136. The Committee notes that the Government in its reply confines itself to explaining the delay noted in processing the registration dossier by referring to the number of observations and remarks concerning the dossier as deposited by the complainant organization and to the time taken by the latter to comply with them.
5. 137. To begin with, the Committee notes with deep concern that more than seven years have passed since the initiative by the SNTFP founders to file an application for registration with the Ministry of Labour and Social Security, to no avail. The Committee recalls in this regard that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers or employers’ organizations must take in order to be able to function efficiently and represent their members adequately. The principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. Such authorization could concern the formation of the trade union organization itself, the need to obtain discretionary approval of the constitution or rules of the organization, or, again, authorization for taking steps prior to the establishment of the organization. This does not mean that the founders of an organization are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition. Even in cases where registration is optional but where such registration confers on the organization the basic rights enabling it to “further and defend the interests of its members”, the fact that the authority competent to effect registration has discretionary power to refuse this formality is not very different from cases in which previous authorization is required. The Committee also recalls that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations, and any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87. A complicated and lengthy registration procedure, in the view of the Committee, creates a serious obstacle for the establishment of a trade union and is tantamount to lead to a denial of the right to organize without previous authorization [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 295, 272, 279 and 307].
6. 138. The Committee notes that the Government in its reply also states that it conducted investigations into the members of the SNTFP national bureau and that the latter noted that, of the 11 founder members in the national bureau, seven had judicial records. The Government notes, for example, that Mr Oukil Djilali, President of the SNTFP, had been fined by the El Harrach court for infringing the law on organization, security and road traffic. Other founder members were also fined for assault and verbal abuse (Nader Omar and Tolba Boudjemâa). The Committee notes the Government’s statements to the effect that the judicial records of most of the founder members, and their concealment of those records, reveal a lack of transparency on their part and undermine their credibility with regard to the exercise of their trade union office at the national level. Furthermore, the Committee notes that, according to the Government, a number of the founder members are also members of another union which, in its view, casts doubt on their loyalty towards the SNTFP members.
7. 139. The Committee takes note of the Government’s information, and notes that it refers by name to only three founder members. The Committee recalls that, as regards the judicial records and the ethics of the complainant organization’s founding members, it has had occasion to recall in previous cases that a legal requirement that candidates for trade union office be subjected to a background investigation conducted by the Ministry of the Interior and the Department of Justice amounts to prior approval by the authorities of candidates, which is incompatible with Convention No. 87. Similarly, it has stated that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offence is incompatible with the principles of freedom of association [see Digest, op. cit., paras 419 and 422].
8. 140. Furthermore, the Committee, referring to section 6 of Law No. 90-14 of 2 June 1990 as amended, concerning the means of exercising trade union rights, notes that none of the criteria put forward by the Government, in particular judicial records, membership of another union, or considerations concerning credibility or loyalty, appears among the criteria considered to disqualify anyone from founding a union. In addition, the Committee notes that union officials may, through the exercise of their legitimate activity, find themselves faced with accusations of the type of offence referred to by the Government (infringement of the law relating to organization, security and road traffic) and such charges should not constitute grounds for denying an individual the right to found a union. Consequently the Committee is bound to express its deep concern at the criteria cited by the Government as grounds for its refusal to register the SNTFP. The Committee is especially concerned by the fact that the Government’s reasons were apparently never explained to the SNTFP, and the registration procedure has dragged on for a number of years during which various demands have been made of the complainant organization, which has duly cooperated in order to obtain registration, including by concluding an insurance policy.
9. 141. In view of the provisions of Law No. 90-14 concerning the procedure for establishing a trade union organization, the information supplied by the complainant organization and the Government’s reply, the Committee concludes that the Ministry of Labour and Social Security has failed to follow up the application to register the SNTFP made a number of years ago, without any valid reason. Consequently, the Committee urges the Government to register the SNTFP without delay, and notes with deep regret that the time that has passed since the initial application to register (August 2002) may have prevented the union from organizing its activities in an appropriate way. It requests the Government to keep it informed in this respect. The Committee expects that the Government will ensure the strict application of national law and of the principles recalled above concerning the right to establish trade union organizations, and ensure that the actions of the administration in this regard, in particular as they entail contravention of Convention No. 87, will not recur in the future.

The Committee's recommendations

1. 142. In the light of its foregoing conclusions, the Committee requests the Government Body to approve the following recommendation:
   • The Committee urges the Government to register the National Union of Vocational Training Workers (SNTFP) without delay, and notes with deep regret that the time that has passed since the initial application to register (August 2002) may have prevented the union from organizing its activities in an appropriate way. It requests the Government to keep it informed in this respect. The Committee expects that the Government will ensure the strict application of national law and of the principles recalled above concerning the right to form trade unions, and ensure that the actions of the administration, in particular as they entail violation of Convention No. 87, will not recur in the future.