Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and its reply to the comments of the International Confederation of Free Trade Unions (ICFTU), dated 31 August 2005. It also notes the comments of the ICFTU dated 10 August 2006, referring to matters already raised by the Committee.

Articles 2 and 5 of the Convention. Right of workers to establish and join organizations of their own choosing without previous authorization and to establish and join federations and confederations. In its previous comments, the Committee requested the Government to provide clarification on the effect given in practice to section 8 of Act No. 90-14 of 2 June 1990 respecting procedures for the exercise of the right to organize, and particularly on possible grounds for refusing the registration of trade union organizations and the channels of appeal available.

In its reply, the Government indicates that Act No. 90-14 does not establish any condition for establishing trade union organizations, except for being a worker or an employer. The Government adds that, in terms of form, the declaration of the establishment of a trade union organization merely involves making an application, to which the statutes formulated by the founding members, accompanied by the report of the constituent general assembly, have to be attached. With regard in particular to the provisions of section 8 of Act No. 90-14 referred to above, the Government indicates that an application for the establishment of an organization is lodged: (1) with the Ministry of Labour and Social Security in the case of a national organization of workers or employers; (2) at the headquarters of the wilaya where the organization is to operate at the level of the region or the wilaya; and (3) with the communal authorities when it is to operate at the communal or inter-communal level. The choice of the territorial scope of the trade union organization rests with the founder members, and the competent authority is only notified when the application has been submitted. The Government indicates that the period established for a response to the application for the establishment of an organization is 30 days. The organizations concerned may be requested to make corrections to the statutes of their constituent act. Once the corrections have been made, a receipt is issued for their registration.

In its previous observation, the Committee requested the Government to keep it informed of the final outcome of the question of the registration of the Algerian Confederation of Autonomous Trade Unions (CASA). In this respect, the Government refers to its communications to the Committee on Freedom of Association in Case No. 2153, with the indication that the above correspondence submitted for examination by the Committee on Freedom of Association cannot be considered a refusal to register the CASA, but rather an invitation to bring its statutes into conformity with the labour legislation. It also emphasizes that if the parties concerned had discerned in the administration’s observations any refusal to authorize the establishment of the CASA, they would have taken the case to the courts, which they have not done. The Committee notes in this respect that the Committee on Freedom of Association requested the Government: (1) to amend without delay the legislative provisions preventing workers’ organizations from forming federations and confederations of their own choosing, irrespective of the sector to which they belong (see sections 2 and 4 of Act No. 90-14); and (2) to consult the social partners without delay in order to remove all the difficulties which might arise in practice from the interpretation of certain legislative provisions on the formation of federations and confederations and particularly, in this case, which might hinder the recognition of the CASA (see Reports Nos. 336 and 340 of the Committee on Freedom of Association). Recalling that the acquisition of legal personality by federations and confederations cannot be made subject to conditions such as to restrict the right to establish these organizations, the Committee urges the Government to keep it informed of the measures adopted in this respect and the outcome of the discussions held.

Article 3. Exercise of the right to strike. In its previous comments, the Committee also requested the Government to limit the scope of Legislative Decree No. 92-03 of 30 September 1992 (section 1 of which, read together with sections 3, 4 and 5, defines as subversive acts offences directed, in particular, against the stability and normal functioning of institutions through any action intended to: (i) obstruct the operation of establishments providing public services; or (ii) impede traffic or freedom of movement in public places or thoroughfares, under penalty of severe sanctions, including imprisonment for up to 20 years), through the adoption of legislative measures or regulations to ensure that this text may not in any event be applied to workers who have exercised the right to strike peacefully. The Committee notes that, according to the Government, the above Decree does not constitute in any manner an obstacle to the exercise of the right to strike by workers, and that several strikes have been held without any effect in relation to this text. The Committee nevertheless reiterates that the very general wording of certain provisions involves a risk of infringing the right of workers’ organizations to organize their activities and to formulate their programmes in defence of the interests of their members through strike action, among other means. The Committee therefore urges the Government to limit the scope of the Legislative Decree through the adoption of legislative measures or regulations guaranteeing that this text may not in any event be applied to workers who have exercised the right to strike peacefully.

The Committee also requested the Government to amend section 43 of Act No. 90-02 of 6 February 1990, which bans strikes not only in essential services the interruption of which would endanger the life, personal safety or health of the population, but also where the strike is likely to give rise to a serious economic crisis, with collective disputes in such cases being subject to the conciliation and arbitration procedures provided for by the law. The Committee also requested the Government to amend section 48 of the same Act, which authorizes the Minister or the competent authority, where the strike persists or after the failure of mediation, to refer the dispute to the National Arbitration Commission, after consulting the employer and the workers’ representatives. Noting that the Government’s report does not contain information on this subject, the Committee wishes to emphasize once again that referral to arbitration to end a collective dispute is only acceptable if it is at the request of both parties and/or in the event of a strike in essential services in the strict sense of the term, or in the case of a strike the extent and duration of which are likely to give rise to a serious national crisis. The Committee urges the Government to indicate the measures adopted or envisaged to amend the legislation as indicated above so as to guarantee in full the right of workers’ organizations to organize their activities and to formulate their programmes without interference by the public authorities, in accordance with Article 3.

The Committee trusts that the Government will take the necessary measures to ensure that the above amendments are made to the legislation to bring it into conformity with the Convention. It requests the Government to provide the text of the legislation adopted or envisaged in this respect.