Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 353, Marzo 2009

1. 1310. The Committee last examined this case at its June 2008 meeting, when it presented an interim report to the Governing Body [see 350th Report, paras 1540 to 1588, approved by the Governing Body at its 302nd Session].
2. 1311. The complainant organizations transmitted additional information in a communication of 16 February 2009. The Government sent information and observations in communications dated 14 August 2008 and 6 March 2009.
3. 1312. Tunisia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 1313. In its previous examination of the case in June 2008, the Committee made the following recommendations [see 350th Report, para. 1588]:
   • (a) The Committee requests the Government to provide a copy of the court ruling of first instance revoking the dissolution of the general trade unions by the unification congress of July 15, 2006 and to keep it informed of the outcome of proceedings that are under way.
   • (b) The Committee expects that a final court ruling will be handed down very soon concerning the legitimate representation of the SGESRS and requests the Government to keep it informed in this respect.
   • (c) In view of the contradictory information provided by the complainants and the Government, the recent history of the trade union movement in the higher education and scientific research sector, the legal proceedings under way, the process currently under way which appears to involve individual negotiations with various trade union structures of the sector and, lastly, the alleged favouritism shown by the Government towards non-representative trade union organizations, the Committee considers that, once the court rulings have been handed down and if it proves necessary, with the agreement of the FGESRS and the other trade union structures concerned, the Government should put in place an independent mechanism for the objective determination of the representativeness of the social partners in the sector. The Committee expects that the procedures for determining such representativeness, particularly the designation of an independent body for this purpose, will be established quickly by mutual agreement, and requests the Government to take all the appropriate measures to recognize the trade union structures whose representativeness in the sector has been objectively demonstrated and to formally recognize their right to conclude collective agreements. The Government is requested to indicate any developments in this respect. The Committee reminds the Government that it can avail itself of ILO technical assistance if it so wishes.
   • (d) The Committee expects that the Government will ensure protection against anti-union discrimination and, deploring the assault on union member Moez Ben Jabeur, requests the Government to keep it informed of any court rulings handed down in this respect.
   • (e) The Committee requests the Government to hold negotiations with the FGESRS and requests that the latter’s wage demands be included in these negotiations and to keep it informed of any agreements concluded.

B. The complainants’ new allegations

1. 1314. In a communication of February 16, 2009, the complainant organizations provided further information concerning their legal actions instituted against the UGTT’s 15 July 2006 decision to, through the FGESRS, constitute in a single structure the various bodies and categories of teachers and university researchers. They indicate, in particular, that it is unfounded to state, as the Government claims, that the Trade Union of Higher Education Lecturers and Professors was able to obtain a court decision quashing the unifying congress of 15 July 2006 during which the FGESRS was constituted. The complainant organizations specify that it was in fact a summary motion introduced by the Trade Union of Higher Education Lecturers and Professors on 27 July 2006 before the Court of First Instance of Tunis that rendered its decision on 10 May 2008. The summary judgement issued by the Court, a copy of which has been provided by the complainant organizations, declared inadmissible the request to suspend the 15 July 2006 decision of the UGTT to dissolve the Trade Union of Higher Education Lecturers and Professors. Moreover, the complainant organizations denounce this as a dilatory action (a judgement handed down on 10 May 2008 following a summary motion introduced 27 July2006), even though the procedure was urgent, and they consider it a manoeuvre intended to create the belief that there is a crisis in union representation within the higher education and scientific research sector. The complainant organizations recall that a further example of such manoeuvres by the Government is the fact that the courts have not yet definitively pronounced on the case dating from 2003 in which certain members of the SGESRS 2001 committee oppose the UGTT’s decision to dissolve the union’s committee in 2002.

C. The Government’s observations

1. 1315. In communications dated 14 August 2008 and 6 March 2009, the Government sent its observations on the follow-up to the Committee’s recommendations.
2. 1316. Firstly, the Government reaffirms its commitment to guarantee the rights and well-being of workers in accordance with the international labour standards, including the 58 Conventions it has ratified. It also recalls that the right to organize is guaranteed and enshrined in the national Constitution as well as in the labour legislation.
3. 1317. Furthermore, the Government indicates that in Tunisia social dialogue and collective bargaining are well established and rooted in tradition. Collective bargaining therefore takes place in both the public and private sectors. It mentions as an example the various rounds of negotiations on wages and on the improvement of working conditions, including the seventh round launched in March 2008. The Government also indicates that the protection of trade union representatives has been further strengthened by the ratification of the Workers’ Representatives Convention, 1971 (No. 135), and that trade union representatives may be dismissed only with the approval of the Director General of the Labour Inspection and Conciliation Directorate and may appeal to the competent judicial body in the event of a dispute.
4. 1318. With regard to the recommendations made by the Committee when it last examined the case, the Government indicates that a copy of the court ruling of first instance revoking the dissolution of the general trade unions by the unification congress of 15 July 2006 requested by the Committee (recommendation (a)) was already sent to the Office in 2007. In its communication of 6 March 2009, the Government adds, concerning the judgement of 10 May 2008 by the Court of First Instance of Tunis, that it was an order handed down following a summary motion by one of the unions herein below. However, the case is ongoing and a decision on the substance will be handed down by the Court of First Instance of Tunis which adjourned until 8 April 2009 for exchange of pleadings (case No. 71409/28).
5. 1319. With regard to the Committee’s recommendation expressing the firm hope that a final court ruling will be handed down very soon concerning the legitimate representation of the General Trade Union of Higher Education and Scientific Research (SGESRS) (recommendation (b)), the Government may not intervene in the court proceedings to speed up the ruling.
6. 1320. With regard to the recommendation concerning the establishment of an independent mechanism for the objective determination of the representativeness of the social partners in the higher education and scientific research sector (recommendation (c)), section 39 of the Labour Code already establishes a mechanism for determining the representativeness of the social partners by providing that, in the event of a dispute concerning the representativeness of one or more trade union organizations, an order issued by the Secretary of State for Youth, Sport and Social Affairs, following consultation with the National Social Dialogue Committee, shall determine those which, in the context of the branch of activity and territory concerned, shall be called upon to conclude the collective agreement. In the present case, since the dispute has been referred to the courts, the Minister of Social Affairs, Solidarity and Tunisians Abroad, who is now competent to issue orders of this kind, may issue an order only after the final ruling has been handed down.
7. 1321. With regard to the issue of ensuring protection against anti-union discrimination (recommendation (d)), this principle will be respected, including in the case of the trade unionist Mr Moez Ben Jabeur, who suffered an assault. In this regard, since the Government is not a party to the case brought before the criminal court by Mr Moez Ben Jabeur against one of his colleagues, it will not be able to provide the court ruling on that case, as requested by the Committee, since the documents are communicated only to the parties in accordance with the provisions of the Code of Criminal Procedure.
8. 1322. With regard to the Committee’s recommendations concerning the negotiations to be held with the General Federation of Higher Education and Scientific Research (FGESRS) on matters including wages demands (recommendation (e)), the FGESRS is part of the delegation of the Tunisian General Labour Union (UGTT) which is currently negotiating with government representatives on the improvement of the financial and occupational conditions of public employees in the context of the seventh round of collective bargaining that led to salary increases for 2008 to 2010. Moreover, all the trade union bodies were consulted when the Higher Education Act was being drawn up.
9. 1323. Finally, the Committee will be kept informed of any developments relating to all the points raised.

C. The Committee’s conclusions

1. 1324. The Committee recalls that, in the present case, Education International (IE) and the FGESRS alleged refusal by the authorities to recognize the FGESRS, anti-union discriminatory measures against trade union leaders and violations of the right to collective bargaining.
2. 1325. In its previous examination of the present case, the Committee noted the information provided on a dispute that had existed within the SGESRS since 2002. The trade union concerned had appointed an executive committee in 2001 but, following the UGTT’s decision of 2 April 2002 to dissolve this committee, a new one was appointed in 2003. However, some members of the 2001 committee filed an appeal before the courts to challenge the dissolution decision taken by the UGTT and obtained a court of first instance ruling that revoked the dissolution decision of 2002 (ruling of 7 June 2003 of the Court of First Instance of Tunis provided by the Government).
3. 1326. Furthermore, the Committee noted that the FGESRS was established as the result of a unification congress organized by the UGTT on 15 July 2006 in order to represent, under a single structure, the various bodies and categories of university teachers and researchers and that this congress also decided to dissolve the unions affiliated to the UGTT which had until then represented these bodies, namely, the SGESRS and the Trade Union of Higher Education Lecturers and Professors. The Committee noted that, according to the complainant organizations, the procedure followed to organize the unification congress of 15 July 2006 complied with Circular No. 67 of 8 March 2004 concerning the organization of unification congresses at the university level, as well as the internal regulations of the UGTT in terms of the consent of the unions affected by the unification. However, the Committee also noted the Government’s indication that some general unions, namely the Trade Union of Higher Education Lecturers and Professors and the dissident executive committee (elected in 2001) of the SGESRS, were opposed to this unification process and challenged their dissolution before the national courts, winning their case before the courts of first instance. It therefore requested the Government to provide a copy of the ruling in question. The Committee takes note of the summary judgement handed down by the Court of First Instance of Tunis on 10 May 2008, provided by the complainant organizations, by which the Trade Union of Higher Education Lecturers and Professors undertook its request to suspend the UGTT decision of 15 July 2006 to dissolve the aforementioned union. The Committee notes that the complainant organizations, although indicating that the court decision confirms that the creation of the FGESRS was legal and legitimate, denounce it as a dilatory action although it was an urgent proceeding; they consider it is a manoeuvre intended to create the belief that there is a crisis in union representation within the higher education and scientific research sector. The Committee notes the Government’s indication that a copy of this court ruling of the first instance revoking the decision to dissolve the general unions made by the unification congress of 15 July 2006 has already been sent to the Office. The Committee notes furthermore that, according to the Government, the judgement issued on 10 May 2008 by the Court of First Instance of Tunis is an order following a preventative summary recourse by one of the unions herein below, but the case is still ongoing and a decision on the substance will be issued by the Court of First Instance of Tunis which adjourned until 8 April 2009 for exchange of pleadings (case No. 71409/28).
4. 1327. The Committee notes that the court ruling provided by the Government in its 2007 reply concerns the ruling of the Court of First Instance of Tunis of 7 June 2003 revoking the UGTT’s decision of April 2002 to dissolve the executive committee of the SGESRS. The Committee requests the Government to provide all useful information to support its affirmation concerning a legal decision that quashed the dissolution of the general unions by the UGTT unifying congress of 15 July 2006, to provide if need be the pertinent documents and to indicate, further to the most recent information provided by the complainant organizations, any follow-up to the summary judgement handed down by the Court of First Instance of Tunis on 10 May 2008 and any other decision issued in case No. 71409/28 that it cited.
5. 1328. With regard to the matter of the legitimate representation of the SGESRS, the Committee noted the indication that legal proceedings are still under way following a ruling of 7 June 2003 by the Court of First Instance of Tunis revoking the UGTT’s decision of April 2002 to dissolve the executive committee of the SGESRS. The Committee noted that, according to the complainant organizations, this court appeal was at odds with the UGTT’s internal regulations. The Committee also noted that Education International recognized the committee elected in 2003, with Mr Kaddour as General Secretary, as legitimately representing the SGESRS and that the UGTT instructed Mr Béchir Hamrouni, whose union mandate had been suspended in April 2002, to stop using the official stamp and documents of the SGESRS and to return them immediately or face disciplinary measures. The Committee expressed concern at the length of the proceedings and the firm hope that a final court ruling would be handed down very soon.
6. 1329. In this regard, the Committee notes the complainant organizations’ statement that no definitive legal decision has yet been handed down in this case. The Committee also notes the Government’s indication that it may not intervene in court proceedings to speed up the process of handing down a ruling, in accordance with the principle of the separation of powers. The Committee would once again recall that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 105] and that in this case, the absence of a swift court ruling handed down by an impartial and independent authority has created uncertainty with regard to the trade union representation in the sector. The Committee trusts that the Government will be able very soon to send a final court ruling on the legitimate representation of the SGESRS and that it will indicate any action taken following that ruling.
7. 1330. Furthermore, with regard to the complainants’ allegations concerning the difficulties encountered in establishing normal relations between the FGESRS and the public authorities, as well as the establishment of parallel trade union organizations which the responsible ministry was consulting rather than negotiating with the most representative organization in the sector, namely the FGESRS, the Committee noted that neither the establishment of the FGESRS nor the activities carried out by it as a representative of the various bodies and categories of university teachers and researchers appeared to be contested by the Ministry of Higher Education, Scientific Research and Technology or by the other trade union organizations of the sector. The Committee also noted the Government’s indication that there were other higher education unions not affiliated to the UGTT and trade union organizations dissolved by the UGTT which had challenged the dissolution decision before the courts and won their case. Hence, pending a final court ruling, the Government was continuing to consult all trade union organizations of the sector. Taking into account the contradictory information provided by the complainant organizations and the Government, the Committee recommended that, once the court rulings had been handed down and where necessary, the Government should carry out an objective determination, with the agreement of the trade union organizations concerned, of the representativeness of the social partners consulted by the Ministry of Higher Education, Scientific Research and Technology.
8. 1331. In this regard, the Committee notes the Government’s reply to its recommendation. It notes the indication that section 39 of the Labour Code already establishes a mechanism for determining the representativeness of the social partners by providing that, in the event of a dispute concerning the representativeness of one or more trade union organizations, an order issued by the Secretary of State for Youth, Sport and Social Affairs, following consultation with the National Social Dialogue Committee (the Government indicates that this power is currently held by the Minister for Social Affairs, Solidarity and Tunisians Abroad), shall determine those which, in the context of the branch of activity and territory concerned, shall be called upon to conclude the collective agreement. Furthermore, according to the Government, since the dispute has been referred to the courts, the ministerial order may be issued only after the final ruling has been handed down.
9. 1332. The Committee reiterates that it is not competent at this stage to form an opinion on the representativeness of any trade union organization in the sector. However, if that proves necessary, the determination of the most representative trade union should be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse.
10. 1333. Since it has not received specific information from the Government on such criteria, the Committee requests the Government to indicate the objective and pre-established criteria which have been set for determining the representativeness of the social partners in accordance with section 39 of the Labour Code, in particular in the higher education and scientific research sector. If such criteria have not yet been established, the Committee hopes that the Government will take all the necessary steps to establish such criteria in consultation with the social partners and that it will keep the Committee informed of developments in this regard.
11. 1334. The Committee notes the Government’s statement that protection against anti-union discrimination is guaranteed and that this principle will be respected, including in the case of the trade unionist Mr Moez Ben Jabeur who was the victim of an assault. The Committee also notes the indication that as the Government is not a party to the case brought before the criminal court by Mr Moez Ben Jabeur against one of his colleagues, it will not be able to provide a copy of the court ruling on this case, as requested by the Committee, since the documents are communicated only to the parties to the dispute, in accordance with the provisions of the Code of Criminal Procedure. In this regard, the Committee recalls that it makes a point of requesting the most precise information possible so that it may examine the allegations before it in full knowledge of the facts. Hence, when legal proceedings are instituted, it asks the governments concerned to communicate the texts of any judgements that have been delivered together with the grounds adduced therefore. The Committee has emphasized that when it requests a government to furnish judgements in judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary. The very essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known [see Digest, op. cit., para. 113]. The Committee emphasizes that in the present case it is competent to express an opinion, following an examination of all the information available and above all the texts of rulings, on the allegations of anti-union violence and to determine whether the assault on the trade unionist Mr Moez Ben Jabeur is a matter which relates to the exercise of his trade union rights. Consequently, the Committee requests the Government or the complainant organizations to keep it informed of any court ruling handed down in the case of the assault on the trade unionist Mr Moez Ben Jabeur.
12. 1335. The Committee notes the Government’s indication that the FGESRS forms part of the UGTT delegation which is currently negotiating with government representatives on the improvement of the financial and occupational conditions of public employees in the context of the seventh round of collective bargaining that resulted in salary increases for 2008 to 2010 and that all trade union bodies were consulted when drawing up the Higher Education Act. The Committee requests the Government to provide, as intended based on its reply, any collective agreement concluded with the participation of the FGESRS.