Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Argelia (Ratificación : 1962)

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The Committee notes the observations from the following representative employers’ and workers’ organizations received on: 12 February and 30 August 2023 from the General and Autonomous Confederation of Workers in Algeria (CGATA), 1 March 2023 from CGATA, the Trade Union Confederation of Productive Workers (COSYFOP), the National Autonomous Union of Public Administration Personnel (SNAPAP), the Autonomous National Union of Electricity and Gas Workers (SNATEG), Public Services International (PSI), the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) and IndustriALL Global Union; 31 August from COSYFOP; 1 September 2022 and 2023 from the International Trade Union Confederation (ITUC); and 1 September 2023 from the International Organisation of Employers (IOE) providing comments of a general nature. The Committee notes the responses provided by the Government.

Measures against trade union leaders. The Committee notes the information communicated by the Government in response to the 2021 observations of national and international trade union organizations. Concerning the information requested on the situation of several trade union leaders (Mr Kaddour Chouicha, Mr Felah Hammoudi, Mr Morad Ghedia), the Government indicates that it has regularly provided information to the various ILO supervisory bodies, including this Committee, the Committee on the Application of Standards of the International Labour Conference (hereinafter the Conference Committee) and the Committee on Freedom of Association. Noting that the information to which the Government refers relates essentially to measures for the reinstatement of workers dismissed from the public administration and workers of the SONELGAZ group, and recalling the seriousness of the alleged offences against the aforementioned trade union leaders (harassment, arrest, detention, terrorism conviction), the Committee expects the Government to provide without delay updated information on the situation of these trade union leaders. The Committee further requests the Government to provide its comments on the situation of the many trade union members and leaders of the SNAPAP and the CGATA listed in the observations of the CGATA received on 30 August 2023, a copy of which was sent to the Government by the Office on 6 September 2023.

Inviolability of trade union premises. With regard to the alleged closure of the premises of the CGATA and COSYFOP, the Committee notes that the Government once again bases its argument on what it considers to be the lack of legitimacy of the trade union leaders of COSYFOP and the CGATA. The Government further points out that they use rented premises for propaganda purposes and to spread false information, breaching security and public order, which constitute illegal acts that are not related to trade union activities. The Government asserts that those concerned have the right to complain to the courts to challenge the closure of headquarters if they are legitimate holders of trade union office. The Committee notes that the Government does not dispute the closure of these premises by administrative decision. At the outset, the Committee recalls that organizations must be able to fully enjoy inviolability of their premises, correspondence and communications. When the legislation makes provision for exceptions in this respect, for example in emergency situations, or in the interests of public order, the Committee considers that searches should only be possible when a warrant has been issued for that purpose by the regular judicial authority, when the latter is satisfied that there is good reason to presume that such a search will produce evidence for criminal proceedings under the ordinary law, and provided the search is restricted to the purpose for which the warrant was issued (see the 2012 General Survey on the fundamental Conventions, paragraph 114). The Committee expects that the Government will fully guarantee the right of the inviolability of trade union premises, under the Convention, and that any decision to search or even close COSYFOP or CGATA premises will be taken by the competent judicial authority. Accordingly, the Committee urges the Government to reverse any decision to close trade union premises of COSYFOP and the CGATA taken by the administration without a court warrant. It also refers to the alleged closure of the SNAPAP’s premises since 2019 by administrative decision as recalled in the most recent observations of the CGATA.

Legislative issues

Adoption of new legislation. The Committee notes the adoption of Act No. 23-02 of 25 April 2023 on the exercise of the right to organize, and of Act No. 23-08 of 21 June 2023 concerning the prevention and settlement of collective labour disputes and the exercise of the right to strike. The Committee notes that these two Acts implement the provisions of the Convention by amending existing provisions while taking into account certain recommendations made previously, and introduce new provisions which provide clarification on the exercise of freedom of association and protection of the right to organize. Lastly, the Committee notes that the final provisions of Act No. 23-02 repeal Act No. 90-14 on the exercise of the right to organize.

However, the Committee notes with concern that the above-mentioned trade union organizations have made numerous observations concerning Act No. 23-02 and complained from the outset, in February 2023, that it had been developed without consulting the social partners. According to the trade union organizations, the consultations that the Government claims to have held involved only a minority of the country’s trade unions and did not include the main representative organizations, including the country’s leading trade union. The trade union organizations consequently requested that the adoption of the Act be postponed so that the Government could engage in genuine consultations with the social partners and hear their points of view. They shared proposed amendments in this regard. The Committee notes that, despite these requests, the Government decided to submit the Bill to Parliament, which adopted it in April 2023.

The Committee notes that the observations of the trade union organizations containing proposed amendments were submitted to the Government, which responded on numerous points. The Committee has taken into account both these comments from the trade union organizations and the Government’s responses to them in its assessment of the new Act.

Scope of application (section 2 of Act No. 23-02). In its previous comments, the Committee requested the Government to initiate without delay consultations with the social partners on the measures to be taken to amend the requirements resulting from the application of section 2 of Act No. 90-14, so that trade union office in an enterprise is no longer restricted to persons employed by the enterprise in question, or to remove the requirement to belong to the occupation or to be an employee for at least a reasonable proportion of trade union officials. The Committee notes with regret that section 2 of Act No. 23-02 remains unchanged on this point in that it applies solely to salaried workers and public officials working in public institutions and administrations. The Committee must once again recall that provisions of this type infringe the right of organizations to draw up their constitutions and to elect representatives in full freedom by preventing qualified persons (such as full-time union officers or pensioners) from being elected, or by depriving the organizations of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks (see the 2012 General Survey on the fundamental Conventions, paragraph 102). Consequently, the Committee urges the Government to take the necessary measures to ensure that the new legislation complies fully with the Convention, in accordance with the principles recalled above.

Independence of trade union organizations (sections 12 to 15 of Act No. 23-02). The Committee notes that these provisions prohibit not only any structural or functional relationship between trade unions and political parties, but also prohibit trade unionists from holding office in the governing bodies of a political party. Furthermore, founding members and trade union leaders are required to refrain from the expression of any support for a political party or figure. The Committee wishes to recall in this regard its indication that while the promotion of working conditions by collective bargaining remains a crucial part of trade union action, the development of the trade union movement and its wider recognition as a social partner in its own right require workers’ organizations to be able to voice their positions on political issues in the broad sense of the term, and, in particular, to express their views publicly on a government’s economic and social policy. With regard to the political activities of the trade union movement, the Committee has also expressed the view that both legislative provisions which establish a close relationship between trade union organizations and political parties, and those which prohibit all political activities by trade unions, give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interests of organizations in expressing their point of view on matters of economic or social policy affecting their members or workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities on the other hand. The Committee therefore recalls that provisions imposing a general prohibition on political activities by trade unions or employers’ organizations for the promotion of their specific objectives are contrary to the Convention. Accordingly, the Committee requests the Government to take the necessary measures to review the aforementioned provisions of Act No. 23-02, in consultation with representative employers’ and workers’ organizations at the national level, with a view to amending them so as to ensure respect for this principle.

Trade union constitutions and rules of procedure (sections 37 to 42 of Act No. 23-02). The Committee notes the detailed list of provisions that should be included in the constitution of a membership-based organization, federation or confederation (section 38). The Committee notes, for example, the requirement to include provisions on the representation of women and young people on management and/or governing bodies. Furthermore, the Committee notes that section 40 of the Act requires constitutions to guarantee broad deliberation within supervisory bodies on important decisions, such as decisions relating to strikes. The Committee recalls that legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference which is incompatible with the Convention. The Committee further recalls that, under Article 3 of the Convention, national legislation should only lay down formal requirements respecting trade union constitutions, except with regard to the need to follow a democratic process and to ensure a right of appeal for the members (see the 2012 General Survey on the fundamental Conventions, paragraph 100). The Committee therefore requests the Government to consult representative workers’ and employers’ organizations to review the legislative provisions in question as well as their application in the light of the above principle.

Gifts and bequests (section 49 of Act No. 23-02). The Committee recalls that its previous comments have focused for many years on the need to remove the requirement to obtain prior authorization from the public authorities with regard to gifts and bequests from national trade union organizations or foreign entities. The Committee notes with regret that section 49 of Act No. 23-02 reproduces this obligation. The Committee requests the Government to take the necessary measures, in consultation with representative workers’ and employers’ organizations, to amend section 49 of Act No. 23-02 and to indicate any measures taken in this respect.

Participation in trade union supervisory and/or governing bodies (section 54 of Act No. 23-02). Election of trade union representatives (section 101 of Act No. 23-02). The Committee notes that among the conditions to be met in order to take part in the management or administration of a trade union or to stand as a candidate for election as a trade union representative, any member must be over 21 years of age. It notes that Act No. 23-02 further provides that salaried workers must be of legal age to establish a trade union organization (section 28). Lastly, the Committee notes that the minimum age for admission to employment is fixed at 16 years, under section 15 of Act No. 90-11 on employment relationships. Recalling its consistent position that all workers who have reached the minimum age for admission to employment must be able to exercise their right of freedom of association, including the right to stand as a candidate for election as trade union representative, the Committee requests the Government to amend section 101 of Act No. 23-02 in consultation with representative workers’ and employers’ organizations to bring it in conformity with the Convention.

Term and number of trade union appointments (section 56 of Act No. 23-02). Noting that pursuant to section 56 of the new Act, the term of a trade union appointment may not exceed five years and is renewable only once, the Committee is bound to recall that the right of workers’ organizations to draw up their own constitutions and rules, organize their administration and formulate their programmes means that matters such as the establishment of the term of appointments must be left to the unions themselves in their constitutions and rules. The Committee considers that provisions regulating in detail the alternation in the leadership of workers’ or employers’ organizations are incompatible with the Convention as they amount to interference by the public authorities in trade union affairs. The Committee therefore urges the Government to take the necessary measures, in consultation with representative workers’ and employers’ organizations, to amend section 56 of Act No. 23-02, in accordance with the above-mentioned principle.

Response to requests from the authorities (section 61 of Act No. 23-02). Whereas the Committee understands the need to maintain dialogue when communicating certain information on a regular basis in accordance with the Act, it nevertheless questions the wording of section 61, which imposes a duty to respond to all requests from the competent administrative authority but does not specify the nature, possible justifications or limits of such requests. Such a general provision poses challenges in that it could allow for continuous or harassing objections from the authorities and thereby give rise to risks of partiality or abuse. The Committee therefore requests the Government to delete section 61 of Act No. 23-02 or to initiate consultations with representative workers’ and employers’ organizations in order to amend it in accordance with the Committee’s recommendation.

Dissolution of trade unions (sections 64 to 67 of Act No. 23-02). The Committee notes that pursuant to section 65, a trade union may be dissolved only through judicial channels in certain situations. The Committee further notes that certain situations, such as absence of activity relevant to trade union objectives over a period of three years, refusal to comply with or implement judicial decisions, or incitement to violence, threat or any other illegal behaviour that violates workers’ rights, are potentially far-reaching and could allow objections and thereby give rise to risks of partiality or abuse. Recalling once again that the dissolution of trade unions constitutes an extreme form of interference by the authorities in the activities of organizations, the Committee requests the Government to provide detailed information on the implementation of this provision, specifying the number of administrative appeals seeking the dissolution of trade unions, including on the aforementioned grounds, and the outcomes.

Settlement of collective labour disputes and exercise of the right to strike pursuant to new Act No. 23-08 of 21 June 2023. The Committee notes that this law repeals Act No. 90-14 of 6 February 1990. Noting the observations from trade union organizations and the Government’s response to certain points, the Committee wishes to draw the Government’s attention to the following points:

Procedures for the exercise of the right to strike (sections 41 to 46 of Act No. 23-08). The Committee notes that pursuant to section 42 of the Act, strike action may only be taken for the purpose of having exclusively socio-professional demands met. Under section 45 of the Act, therefore, politically motivated strikes, sympathy strikes or strikes organized for causes or demands other than socio-professional, are illegal. In this regard, the Committee recalls that strikes relating to the Government’s economic and social policy, including general strikes, are legitimate and therefore should not be regarded as purely political strikes, which are not covered by the principles of the Convention. Trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policies which have a direct impact on their members. Moreover, with regard to so-called “sympathy” strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful (see the General Survey of 2012 on the fundamental Conventions, paragraphs 124 and 125). Bearing in mind the principles recalled above, the Committee requests the Government to take measures to ensure that excessive restrictions on the exercise of the right to strike are removed.

The Committee further notes that section 42 of the Act defines a strike as a collective and concerted stoppage of work “compatible with the activity of the enterprise and the continuity of public services”. The Committee requests the Government to clarify how the holding of a strike compatible with the employer’s activity is envisaged under the Act and to provide the list of jobs considered indispensable to the continuity of public services.

Additionally, the Committee notes that the Act requires that strike action be taken after exhaustion of the dispute settlement procedures provided for under Title II of the Act (sections 5 to 40). The Committee notes that the established conciliation, mediation and voluntary arbitration procedures, which build on each other, could result in a settlement procedure lasting for several months before a strike is called. In this regard, the Committee recalls its position that prior procedures should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness. With regard to the duration of prior conciliation and arbitration procedures, the Committee has considered, for example, that the imposition of a duration of over 60 working days as a prior condition for the exercise of a lawful strike may make the exercise of the right to strike difficult, or even impossible (see the 2012 General Survey on the fundamental Conventions, paragraph 144). The Committee therefore urges the Government to initiate consultations with representative workers’ and employers’ organizations in order to reduce this period of prior procedures in line with the principle recalled.

Period of notice (section 49 to 54 of Act No. 23-08). The Committee further recalls that the period of advance notice should not be an additional obstacle to bargaining, and should be shorter if it follows a compulsory prior mediation or conciliation procedure which itself is already lengthy. The Committee expects the Government to take this issue into account in its consideration of adjustments to be made.

Negotiated minimum service (sections 62 to 64 of Act No. 23-08). The Committee recalls that the maintenance of minimum services in the event of strikes should only be possible in certain situations, namely: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (or essential services “in the strict sense of the term”);(ii) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; and (iii) in public services of fundamental importance. However, such a service should meet at least two requirements: (i) it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (ii) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see the 2012 General Survey on the fundamental Conventions, paragraphs 136 and 137). The Committee requests the Government to indicate any consultations held with the social partners on the matter and to provide the regulatory text determining the list of industries and posts required to establish a minimum service, once it has been adopted.

Requisitioning (section 65 of Act No. 23-08). The Committee recalls that it is desirable to limit powers of requisitioning to cases in which the right to strike may be limited, or even prohibited, namely: (i) in the public service for public servants exercising authority in the name of the State; (ii) in essential services in the strict sense of the term; and (iii) in the case of an acute national or local crisis, and considers that essential services, for the purposes of restricting or prohibiting the right to strike, are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see the 2012 General Survey on the fundamental Conventions, paragraphs 151 and 131). The Committee requests the Government to provide information on the implementation of section 65 of the Act by the competent authorities and to indicate the list of occupations considered indispensable for the safety of persons, plants and property, for the continuity of public services, for the satisfaction of the vital needs of the country or for the provision of supplies to the population.

Prohibition of strikes (section 67 of Act No. 23-08). The Committee further recalls that the right to strike is not absolute and may be restricted in exceptional circumstances, or even prohibited. Over and above the armed forces and the police, the members of which may be excluded from the scope of the Convention in general, other restrictions on the right to strike may relate to the three areas identified in the above discussion of requisitioning. In these cases, compensatory guarantees should be provided for the workers who are thus deprived of the right to strike. The Committee requests the Government to indicate any consultations held with the social partners on the issue and to provide the regulatory text determining the list of sectors, staff and occupations in which strike action is prohibited, once it has been adopted.

Strike resolution (section 69 of Act No. 23-08).The Committee requests the Government to remove the provisionenvisaging the participation of the employer or representative thereof in the general meeting at which it is to be decided whether or not to return to work.

The Committee urges the Government to provide information on the measures taken to comply with its comments on amendments to be introduced to the new legislative framework on the exercise of freedom of association in order to bring it into conformity with the requirements of the Convention.

Registration of trade union organizations

The Committee notes the Government’s indication that it undertakes to review the registration applications of the Algerian Union of Employees of the Public Administration (SAFAP) and the Confederation of Algerian Trade Unions (CSA) in the light of the relevant new provisions of Act No. 23-02. The Committee expects the Government to complete processing the registration applications of the SAFAP and the CSA without delay.

With regard to the situation of SNATEG, the previous observations of which indicate numerous obstacles to the freedom to organize its activities, the Committee notes that the Committee on Freedom of Association, during its last examination of the complaint (403rd report, June 2023, Case No. 3210), maintained its recommendations to the Government, including: (i) to conduct an independent inquiry to determine the circumstances that led to the administrative decision to dissolve SNATEG; and (ii) to review the decision to dissolve SNATEG without delay. The Committee notes with regret that the Government merely states in its most recent report that the administration processed the application for the voluntary dissolution of SNATEG with all required attention and that it cannot overrule the will of the members to dissolve their trade union. Expressing its concern at the absence of progress in this matter, despite its repeated recommendations inviting the Government to take corrective measures, the Committee expects that the Government will finally take the necessary measures to give effect to the recommendations of the Committee on Freedom of Association.

Lastly, the Committee wishes to clarify the following points in response to the Government’s reiterated position challenging the standing of members of COSYFOP (whose registration it contests) and the CGATA (whose registration it refuses) as trade union leaders. In this regard, the Committee recalls that the exercise of legitimate trade union activities should not be dependent on registration and that the authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed or its maintenance seriously and imminently endangered. With regard to COSYFOP, the Committee notes that it informed the Committee on Freedom of Association of its situation (Case No. 3434 submitted in March 2022). The Committee expects the government to resolve the issue of registration of the CGATA and other trade union organizations awaiting registration under the new law without further delay.

In conclusion, the Committee urges the Government to further strengthen its efforts to ensure that full freedom of association is effectively guaranteed in law and in practice, and firmly hopes that the Government will hold consultations without delay with all of the social partners concerned to revise the provisions of Acts Nos 23-02 and 23-08 in the light of its comments. The Committee reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

[The Government is asked to reply in full to the present comments in 2024.]