Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the observations of 26 August 2009 by the International Trade Union Confederation (ITUC), which concern matters already examined by the Committee and report obstruction of unionization in the public sector and violent police repression of protest action by unions. The Committee requests the Government to send its observations on the ITUC’s communication of 2009 and to indicate any judicial decisions handed down in cases involving teacher trade unionists cited by name by the ITUC in its observations of 2007, particularly members of the National Council of Higher Education Teachers (CNES) and the Inter-Union Education Coordination (CISE), who have reportedly been prosecuted for taking strike action.

Article 2 of the Convention. Right to establish trade unions. The Committee noted previously that section 6 of Act No. 90-14 of 2 June 1990 restricts the right to establish a trade union organization to persons who are Algerian by birth or who have had Algerian nationality for at least ten years. The Committee recalled that the right to organize must be guaranteed to workers and employers without distinction or discrimination whatsoever, with the exception of those categories listed in Article 9 of the Convention, and that foreign workers too must have the right to establish organizations. In its report, the Government confirms that under Act No. 90-14, only workers who have been Algerian nationals for at least ten years may be founder members of a trade union organization and that once such an organization is established, any worker, without distinction as to nationality, is free to join it. The Committee notes with regret that no measures have been taken in response to its previous request to align Act No. 90-14 with the provisions of the Convention. The Committee once again urges the Government to take the necessary steps to amend section 6 of Act No. 90-14 so as to grant all workers, without distinction as to nationality, the right to establish a trade union organization.

Articles 2 and 5. 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 asked the Government to take specific steps to amend the legislative provisions that prevent workers’ organizations, irrespective of the sector to which they belong, from forming federations and confederations of their own choosing (sections 2 and 4 of Act No. 90-14). It noted the Government’s statement that it was aware of the need to clarify the working of this provision by introducing a definition of the notions of federation (or union) and confederation. The Committee notes that, in its last report, the Government states that section 4 of Act No. 90-14 will be made clearer as a result of discussions now under way on the draft Labour Code. The Committee urges the Government to report on any developments regarding the amendment of section 4 of Act No. 90-14 so as to remove all obstacles preventing workers, regardless of the sector to which they belong, from establishing federations and confederations of their own choosing.

Article 3. Right of organizations to carry on their activities in full freedom and formulate their programmes. In its previous comments, the Committee noted that section 87bis of the Penal Code defines as subversive any act directed 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 the freedom of movement in public places or thoroughfares, subject to sanctions that include even the death penalty where the offence is punishable by life imprisonment (section 47bis(1)). The Committee recalled that the use of very general wording in certain provisions runs the risk of infringing on the right of workers’ organizations to organize their activities and formulate their programmes in defence of the interests of their members, particularly through strike action. It requested the Government to take specific steps to ensure that this provision of the Penal Code may on no account be applied to workers who have peacefully exercised the right to strike. The Committee notes the Government’s statement that recourse to strike action, besides being guaranteed by the National Constitution, is covered solely by Act No. 90-02 of 6 February 1990 on the prevention and settlement of collective labour disputes, and that section 87bis of the Penal Code is unrelated to the exercise of trade union rights. The Government adds that there are still strike movements in the country without any workers being charged under section 87bis of the Penal Code. The Committee takes note of these clarifications and trusts that the Government will continue to ensure that the provisions of section 87bis of the Penal Code are not invoked against workers who have exercised peacefully their right to strike.

The Committee commented previously on section 43 of Act No. 90-02 under which strikes are forbidden not only in essential services the interruption of which would endanger the life, personal safety or health of the population, but also when the strike “is liable to give rise to a serious economic crisis”. Noting the Government’s reply that this expression, set forth in section 43, is similar to the expression used by the Committee, which refers to “strikes which, by reason of their scope and duration, could lead to a national crisis”, the Committee asked the Government to take steps to amend the legislation or to adopt a regulatory text that would clarify this point along the lines indicated by the Government. The Committee observes that the Government’s last report contains no information on measures taken to this end. Consequently, the Committee again asks the Government to adopt a text amending section 43 of Act No. 90-02 or a regulatory text stating expressly that strikes are forbidden in essential services the interruption of which may endanger the life, personal safety or health of the population, or where the strike, by reason of its scope and duration, could lead to a serious national crisis.

Lastly, the Committee asked the Government to amend section 48 of Act No. 90-02 which empowers the Minister or the competent authority, where the strike persists or if mediation fails, to refer the dispute to the National Arbitration Commission, after consulting the employer and the workers’ representatives. The Committee again recalls that recourse to arbitration to end a collective dispute should be possible only 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, or in the case of disputes in the public service involving public servants exercising authority in the name of the State. The Committee notes that the Government’s last report contains no information on measures taken, in response to the Committee’s request, to amend section 48 of Act No. 90-02. The Committee urges the Government to take measures without delay to ensure that the National Arbitration Commission may be seized only of the cases recalled above, in order to fully safeguard the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authority, in accordance with Article 3 of the Convention.