Informe provisional - Informe núm. 327, Marzo 2002

1. 140. The complaint in this case is contained in communications from the National Autonomous Union of Public Administration Staff (SNAPAP) dated 17 September and 15 October 2001.
2. 141. The Government sent its observations in a communication dated 16 October 2001.
3. 142. 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).

A. The complainant’s allegations

1. 143. In its communication dated 17 September 2001, the SNAPAP explains that it was established in 1990, that it represents the public administration sector and that its membership numbers over 400,000. It states that after the coup d’état in 1992 it did not take a political stand in favour of either the Government or the Islamists. The SNAPAP maintains that this neutral stance attracted reprisals, ranging from arbitrary transfers, suspensions of pay and dismissals to internment, prompting several of its members to go into exile in France and Spain.
2. 144. Specifically, the SNAPAP explains that on 20 September 2000 it applied to establish a confederation entitled “National Autonomous Union of Algerian Workers (SNATA)”. Its application was rejected by authorities, on grounds of non-conformity with section 2 of Act No. 90-14 of 2 June 1990, which provides that workers in the same occupation, branch or sector of economic activity have the right to form trade union organizations, and that at the time it was established the SNAPAP only represented workers in the public administration sector. The SNAPAP explains that a second application to establish a confederation entitled “Algerian Confederation of Autonomous Trade Unions (CASA)” was also rejected by the authorities on the pretext that one of its affiliates was a trade union representing the private sector.
3. 145. The SNAPAP further maintains that the Algerian authorities have always displayed favouritism towards the General Union of Algerian Workers (UGTA), since this organization stemmed from the single party that existed before 1990. The SNAPAP alleges that the employers, in collusion with the trade union, deduct union dues from wages at source, thus infringing workers’ freedom to join the organization of their own choosing. In addition, the SNAPAP explains that it was denied permission to participate in the management boards of the social security funds on the pretext that only the most representative trade union is authorized to do so and that the SNAPAP is only representative in the public administration sector.
4. 146. The SNAPAP also maintains that numerous obstacles have been placed in the way of its national general assemblies. Employers constantly refuse to allow it to hold general assemblies outside working hours, and it is denied permission to use the premises after working hours on security grounds.
5. 147. In a subsequent communication dated 15 October 2001, the SNAPAP reports numerous obstacles to the exercise of freedom of association in different sectors, such as the health sector, internal affairs and local communities, the water sector, public works, customs and civil defence. These obstacles consist essentially of prohibiting the establishment of trade union sections in hospitals, of sanctions, suspensions, physical assault, transfers and intimidation of trade union members and officers, prohibition on holding general assemblies and closure of trade union premises (the list of persons subjected to these measures and the sectors and places where these violations occurred are appended to the complaint). Lastly, the SNAPAP states that since it presented its complaint to the ILO, the Government in general and the Ministry of Labour in particular have refused all contact with the trade union and have reneged on promises made to the SNAPAP during the hunger strike recently held by its officers.

B. The Government’s reply

1. 148. In its communication dated 16 October 2001, the Government explains that, following the adoption of the 1989 Constitution establishing trade union pluralism, and in accordance with Act No. 90-14 of 2 June 1990 respecting procedures for the exercise of the right to organize, trade unions were established, including the SNAPAP. The Government expresses surprise at the fact that the SNAPAP, which enjoys legal representation and carries out its trade union activities freely without interference by the authorities, puts forward unfounded allegations, especially as it has all the legal remedies available in Algeria and has not yet exhausted them. The Government specifies that, like other trade unions, the SNAPAP enjoys freedom in its activities at the national level to elect its representatives and organize and manage its activities.
2. 149. The Government explains that on 20 September 2000, the SNAPAP applied for the establishment of a confederation of trade unions in the public administration entitled “National Autonomous Union of Algerian Workers (SNATA)”. The Government sent a negative reply to this application in February 2001 in view of its non-conformity with section 2 of Act No. 90-14 of 2 June 1990. It was explained to SNAPAP that in order to establish a new trade union confederation it would have to have as affiliates at least two trade union associations operating in different sectors and having different activities. On 31 March 2001, the SNAPAP again applied for approval of a new trade union organization entitled “Algerian Confederation of Autonomous Trade Unions (CASA)”. Again, a negative reply was sent to the SNAPAP on 30 April 2001 in accordance with the provisions of the abovementioned Act. The Government specifies that the request to amend the organization’s by-laws through the establishment of new trade union organizations (SNATA, CASA) was handled in accordance with sections 2 and 4 of Act No. 90-14 of 1990.
3. 150. The Government states that the SNAPAP’s allegations concerning the presumed threats of prohibition on establishing trade union sections, closures of premises, dismissals, transfers, suspensions of pay and prohibitions on holding general assemblies are unfounded. As regards the holding of general assemblies, it has been explained to the SNAPAP that these are organized freely and without prior authorization by the employer, except where they are to be held at the workplace during working hours.
4. 151. As regards representation on the management boards of the social security organizations, the Government points out that section 39 of Act No. 90-14 of 1990 grants this right to trade union organizations, based on their representativeness at the national level. The same section also lays down the criteria for representativeness. The Government states that under these provisions the SNAPAP cannot claim to be representative at the national level and hence cannot sit on these management boards.
5. 152. Lastly, the Government emphasizes that the Ministry of Labour and Social Security expressed its willingness to pursue dialogue with the SNAPAP. Several meetings have been held between the SNAPAP and the Ministry of Labour, as well as officials in the sector concerned.

C. The Committee's conclusions

1. 153. The Committee notes that this case concerns numerous allegations of obstacles placed in the way of establishing trade union confederations, favouritism displayed towards a trade union organization, obstacles to holding general assemblies and numerous acts of anti-union harassment.
2. 154. As regards the SNAPAP’s application to establish confederations (entitled SNATA and CASA), the Committee notes the Government’s reply to the effect that these applications were turned down in view of their non-conformity with sections 2 and 4 of Act No. 90-14 of 2 June 1990 respecting procedures for the exercise of the right to organize. In this respect, the Committee considers it appropriate to recall the content of these provisions. Section 2 provides that “workers and employers in the same occupations, trades or sectors of economic activity shall have the right to set up trade unions for the purpose of defending their material and moral interests”. Section 4 provides that “associations, federations and confederations of trade unions shall be subject to the same provisions as those applying to trade unions”. In the view of the Committee, these provisions do not pose a problem from the standpoint of the principles of freedom of association since they may be applied to first-level organizations and the latter are free to establish interoccupational organizations and affiliate to federations and confederations in the manner deemed most appropriate by the workers or employers concerned, without prior authorization being required.
3. 155. However, it seems to be the Government’s interpretation of these provisions which poses a problem in this case. In the light of the information available, the Committee observes that the Government, citing various requirements laid down in legislation, in practice prevents workers in the public sector from establishing a confederation. The Committee recalls that the right of workers and employers to establish organizations of their own choosing is one of the fundamental aspects of freedom of association. In particular it implies the right to take the following decisions freely: the choice of structure and composition of organizations; the establishment of one or more organizations for an enterprise, occupation or branch of economic activity; and the establishment of federations and confederations. Thus, the principle laid down in Article 2 of Convention No. 87 that workers 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. Moreover, the Committee has always considered that the preferential rights granted to the most representative organizations should not give them the exclusive right to set up federations and affiliate with them [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 606 and 619]. Accordingly, the Committee requests the Government to take the necessary measures to ensure that the workers who are members of the SNAPAP may establish and join federations and confederations of their own choosing. It requests the Government to keep it informed in this respect.
4. 156. As regards the allegations of favouritism displayed by the Government towards the UGTA trade union, the Committee notes that the Government has not provided specific observations on this subject. The Committee reminds the Government that, by according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise. The Committee trusts that the Government will take these principles fully into account in future.
5. 157. As regards the allegations that the SNAPAP was denied the right to participate in the management boards of social security funds on the pretext that only the most representative trade union is authorized to sit on them, the Committee notes the Government’s statements to the effect that, under section 39 of Act No. 90-14 of 1990, only organizations that are representative at the national level may sit on these boards and that the SNAPAP cannot claim to be representative at the national level. In this respect, the Committee recalls that it has always considered that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativeness. However, the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse. The Committee notes in this respect that, in this case, the complainant does not seem to challenge the status of the UGTA as the most representative organization.
6. 158. As regards the allegations concerning obstacles to the holding of general assemblies, the Committee notes that, according to the Government, the latter explained to the SNAPAP that general assemblies may be organized freely and without prior authorization of the employer, unless they are held at the workplace during working hours. However, according to the SNAPAP, the employers constantly refuse to allow general assemblies even outside working hours for security reasons. In this respect, the Committee reminds the parties concerned that the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered [see Digest, op. cit., para. 130].
7. 159. Moreover, the Committee notes that the Government rejects outright all the allegations referring to presumed threats of prohibition on establishing trade union sections, closures of premises, dismissals, transfers and suspensions of pay of trade union members. However, the Committee observes that, in a recent communication dated 15 October 2001, the SNAPAP once again reports numerous obstacles to freedom of association in different branches of economic activity: prohibition on establishing a trade union section in hospitals; sanctions, suspensions, physical assault, transfers and intimidation of trade union members and officers; and closure of trade union premises. The SNAPAP provides a detailed list of persons subjected to such measures and the branches of economic activity and places where these violations are alleged to have occurred. The Committee accordingly requests the Government to send without delay its observations concerning the specific allegations put forward by the SNAPAP on this subject. Moreover, since the SNAPAP has not provided any detailed information concerning the allegations of dismissals, internment and other arbitrary measures against its members forcing them to take exile, the Committee requests the SNAPAP to provide any additional information it considers useful in this regard.
8. 160. Lastly, the Committee notes that in its communication of 16 October 2001 the Government deplores the fact that the SNAPAP did not exhaust all of the remedies available in Algeria before appealing to the ILO. In this respect, the Committee reminds the Government that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest, op. cit., Annex 1, para. 33]. Moreover, the Committee expresses its profound concern at the SNAPAP’s allegation that, since it presented its complaint to the ILO, the Algerian authorities have refused all contact with it and reneged entirely on the promises previously made to the SNAPAP. The Committee requests the Government to send its observations in this respect without delay.