Informe provisional - Informe núm. 354, Junio 2009

1. 1117. The complaint is contained in communications of the Liaison Committee of the Tunisian General Confederation of Labour (CGTT), dated 4 June and 4 December 2008.
2. 1118. The Government sent its observations in communications dated 26 November 2008 and 28 January 2009.
3. 1119. 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. The complainant’s allegations

1. 1120. In a communication dated 4 June 2008, the Liaison Committee and founder of the CGTT first of all provides an overview of the trade union movement in Tunisia. According to the complainant organization, the practice of trade unionism, particularly within the Tunisian General Labour Union (UGTT), is based on a model of governance and operation characterized by centralism, concentrated authority, a personalization of power, an office with extensive and far-reaching powers and a fear of divergent opinions, positions and practices. The complainant organization indicates that these concepts also reflect a nationalist culture which has not broken away from the notions prevailing during the colonial period and demonstrate an inability to adapt as soon as it was necessary to evolve as an independent State in a new political, economic and social situation. In addition, since the trade union movement was unable to develop democracy within the movement itself, it therefore proved incapable of influencing the country’s political development towards a democratization of civil and political society.
2. 1121. The complainant organization indicates that the creation of a new democratic, progressive and autonomous trade union organization offers a dynamic alternative to the block currently faced and has therefore aroused the interest of the country’s trade unionists and media. The CGTT does not identify with any political party in power or in opposition. The trade unionism sought would be based on the following pillars: the defence of the fundamental social and economic rights of workers; the involvement of trade unionism as an efficient actor in social transformation; the safeguarding of the autonomy of the trade union movement in relation to the various entities of power, both political, ideological and economic. The CGTT specifies that its ambition is to reshape the Tunisian trade union movement by overhauling its concepts, methods of work and operation. In this regard, the CGTT aspires to modernize the machinery for industrial action and to train trade union leaders to constitute a force for submitting claims and proposals in the fight against labour exploitation and precarious employment. The complainant organization intends to take advantage of the trade union experience in the country while at the same time taking into account the Belgian, Spanish and Scandinavian experiences of trade union pluralism, which it regards as success stories.
3. 1122. The complainant organization indicates that a liaison committee was set up and that its function is to ensure follow-up of the establishment of trade unions at the enterprise level, federations and local and regional unions, in preparation for a national constituent congress of the CGTT. Trade unionists, the public and the media, both in Tunisia and around the world, were to be informed of the CGTT’s establishment. The CGTT’s executive committee was to be established on 2–4 December 2007, but the complainant organization indicates that this proved impossible.
4. 1123. The complainant organization recalls the constitutional and legislative provisions which guarantee freedom of association and the right to establish trade unions without prior administrative authorization. For example, although certain formal obligations have to be fulfilled when establishing a trade union organization, they are limited to informing the authorities. Despite this, the complainant organization claims that it has been facing an increasing number of obstacles since its announced establishment, which are intended to prevent its existence and its normal operation. A press conference, scheduled for Thursday, 1 February 2007, to officially announce its establishment, was prohibited by the authorities. On 13 February 2007, certain members of the Liaison Committee, Mr Habib Guiza and Mr Mohamed Chakroun, attempted to file the by-laws of the newly established organization, which had been established in accordance with section 250 of the Labour Code, but their request was turned down point-blank at the seat of the Tunis Governorate. A second press conference intended to inform the public and the media of the organization’s establishment, due to be held on 7 December 2007, was also arbitrarily prohibited by the authorities.
5. 1124. The complainant organization then describes the process of establishing trade unions at the enterprise level, which were to form the first-level trade unions of the CGTT. In this regard, it indicates that the initial notifications of their establishment were addressed to the Governor of Gafsa, a mining region. These notifications included, as required under sections 242, 250 and 252 of the Labour Code, the by-laws of the trade union and the complete list of its officials, including the first name and surname, nationality, filiation, place and date of birth, occupation and address of each person. The trade union leaders then informed the management of the Compagnie des phosphates de Gafsa (CPG) of the establishment of their trade unions in a communication dated 4 September 2007, but received no reply. The lack of reply prompted the trade union leaders, on 5 May 2008, to report the CPG to the Regional Directorate for Social Affairs and National Solidarity for violation of the aforementioned sections of the Labour Code and ILO Convention No. 87. In the absence of a response from the authorities, the trade unions in question organized a gathering on 15 May 2008 at the head office of the mining enterprise and at the Regional Directorate for Social Affairs in Gafsa. They demanded the recognition of the trade unions established and the start of collective bargaining with a view to finding solutions to the difficulties encountered by workers of the enterprise and by inhabitants of the mining area in general.
6. 1125. The complainant organization adds that, during the mobilization in the Gafsa region, Mr Habib Guiza, coordinator of the CGTT Liaison Committee, was summoned to the Tunis central police station and questioned for two hours on the legality of the trade union organization and on the action taken by the trade unions in the Gafsa region. He was asked to cease his trade union activities, which were deemed illegal, but he refused on the basis of the national legislation and international Conventions. As a reprisal measure, the police prevented access to the premises of the Tunis training centre of the Association Mohamed Ali, chaired by Mr Guiza.
7. 1126. In its communication dated 4 December 2008, the complainant organization indicates that, in the context of the commemoration of the 84th anniversary of the establishment of the first Tunisian trade union organization, the General Confederation of Tunisian Workers, created on 3 December 1924, a meeting of officials of the Tunisian General Confederation of Labour was planned for 30 November 2008 in Tunis. However, the trade unionists were surprised to find that the meeting venue was surrounded by police in considerable number, who informed them that the meeting had been cancelled and blocked access to the intended meeting venue. The complainant organization alleges that this situation is an additional arbitrary measure intended to prevent it from carrying out its activities. It once again recalls that the exercise of the right to organize is a fundamental public freedom contained in the international Conventions ratified by Tunisia, in the national legislation and in the Constitution.

B. The Government’s reply

1. 1127. In its communications dated 26 November 2008 and 28 January 2009, the Government recalls that the right to organize is guaranteed under article 8 of the Tunisian Constitution. Consequently, the legislation provides for the freedom to establish trade union organizations without the prior authorization of the public authorities (section 242 of the Labour Code). The only requirement is the completion of a number of formalities intended to inform the public of the establishment of a trade union. For instance, the founders of a trade union simply have to file its by-laws and the list of persons making up its executive committee with the Governorate or Delegation in which the trade union is located (section 250 of the Labour Code). The public authorities may not therefore hinder the establishment of the CGTT. The Government states that checks carried out with the authorities showed that the CGTT did not complete the legal formalities required for the establishment of a trade union.
2. 1128. Furthermore, with regard to the establishment of trade unions in the Gafsa region, the Government indicates that neither public nor private employers are obliged under any text to reply to a trade union which sends them information on its establishment. At best, the employer may make a note of it.
3. 1129. With regard to the request for meaningful negotiations to be held in the mining area to respond to the difficulties of workers, the Government provides the following information: the CPG is a public enterprise created in 1896 which employs 6,000 workers and provides indirect work for 10,000 people. As a public enterprise, the CPG is governed by the general conditions of service of State employees. At the same time, the CPG has its own special regulations governing its relations with its employees. Since 1990, the CPG, like all public enterprises, has held negotiations every three years aimed at improving the conditions of work of its employees. Since 2008, and in the context of the seventh round of labour negotiations, the CPG has been negotiating with the UGTT which, according to the Government, is the only legally established trade union organization to date. The Government adds that trade union representativeness, which is governed by the provisions of section 39 of the Labour Code, is used to determine the most representative trade union for collective bargaining purposes.
4. 1130. The Government draws attention to the fact that requesting negotiations to resolve the problems of inhabitants of the mining area, as called for by the CGTT, does not come under trade union rights, given that under section 243 of the Labour Code, occupational trade unions have the sole purpose of examining and defending the economic and social interests of their members. The Government adds that the Gafsa region has undergone constant development during the last twenty years with investment totalling more than 1.8 billion US dollars, which has had an impact on all aspects of the life of the region’s inhabitants, especially their social well-being. In 2008, the Gafsa region benefited from a series of supplementary investment measures in all sectors of economic life (agricultural projects and the creation of industrial and technological complexes, redevelopment funds for the area, a project for the creation of a cement works and a factory for the production of higher phosphate triacid and the development of tourist sites). The Government indicates that the public authorities have always resolved the problems of the inhabitants of the Gafsa mining area with the diligence and solicitude required to improve their conditions of work.
5. 1131. With regard to the complainant’s allegations concerning the alleged questioning of the coordinator of the CGTT Liaison Committee and the prevention of access to the Tunis training centre of the Association Mohamed Ali, the Government states that it has carried out the necessary checks and declares those allegations unfounded. The Government observes that no proof has been supplied by the party concerned.
6. 1132. Finally, with regard to the allegations concerning the surrounding by police of the venue for a meeting planned to commemorate the 84th anniversary of the General Confederation of Tunisian Workers established on 3 December 1924, the Government indicates that it carried out the necessary checks and declares those allegations unfounded. Since no plans for a gathering were ever announced, no authority had any knowledge of it and could therefore neither authorize nor prohibit it. The Government indicates that the national legislation guarantees trade union organizations the freedom to carry out their activities, including holding meetings, provided that they complete certain administrative formalities required for all public, trade union, political or other meetings. With regard to the commemoration of certain events, a prior declaration to the competent authorities is required in accordance with Act No. 69-4 of 24 January 1969, concerning public meetings, processions, parades, demonstrations and gatherings. The Government adds that the presence of the police in the event of a gathering is always motivated by the desire to avoid threats to law and order.
7. 1133. The Government concludes by indicating that the recent ratification of the Workers’ Representatives Convention, 1971 (No. 135), shows its determination to strengthen trade union rights and the facilities granted to trade union representatives. It confirms that the allegations made by the complainant organization are unfounded.

C. The Committee’s conclusions

1. 1134. The Committee observes that, in the present case, the complainant’s allegations relate to the refusal of the authorities to recognize the establishment of the CGTT and authorize it to hold press conferences to inform the public of its establishment; the questioning of the coordinator of the CGTT Liaison Committee at the Tunis central police station; the prevention by the authorities of access to the Tunis training centre of the Association Mohamed Ali, which is chaired by the coordinator of the CGTT Liaison Committee; the lack of reply from the authorities and from a public mining enterprise in the Gafsa region to the claims of newly established trade unions; and the surrounding by police of the venue for a meeting planned to commemorate the 84th anniversary of the creation of the first Tunisian trade union organization, the General Confederation of Tunisian Workers.
2. 1135. With regard to the establishment of the CGTT, the Committee notes that the complainant organization alleges obstacles to its establishment and its activities since its announced creation. The complainant organization states that the initiative for its creation was the signature by 500 trade unionists of a “platform for a radical reform of the Tunisian trade union movement” in December 2006. The Committee notes the indication that the platform gave an overview of national trade unionism and proposed an alternative for the future, in particular the establishment of trade union pluralism through the creation of the CGTT as an alternative to the existing trade union. However, the complainant organization reports in particular that the authorities prevented a press conference from being held which was planned for Thursday, 1 February 2007, to officially announce its establishment, that the request made by the members of the Liaison Committee, Mr Habib Guiza and Mr Mohamed Chakroun, on 13 February 2007, to register the filing of the by-laws was turned down at the Tunis Governorate, and that the authorities once again prevented a second press conference from being held, which was planned for 7 December 2007. The Committee notes that, according to the complainant organization, these acts by the public authorities violate not only the international Conventions ratified by Tunisia, in particular Convention No. 87, but also the provisions of the Constitution (article 8), as well as the relevant provisions of the Labour Code, which establish freedom of association and the freedom to establish trade union organizations without prior administrative authorization (sections 242 and 250). The Committee notes that under section 242 of the Labour Code, “Trade unions or occupational associations of persons engaged in the same occupation, similar trades or related occupations connected with the production of specific products or in the same liberal profession may be established freely”. The Committee further notes that, according to section 250 of the Labour Code, “The founders of any occupational trade union shall, as soon as the union has been established, file the following documents at the seat of the Governorate or Delegation in which its headquarters are located, or send such documents by recorded delivery in quintuplicate to the same: (1) its by-laws; (2) the complete list of the persons responsible in any way for its administration or management. The list shall indicate the first name, surname, nationality, filiation, date and place of birth, occupation and address of the persons concerned. A copy of all these documents shall be retained at the seat of the Governorate or Delegation in which they are filed. The Governor shall send a copy to the Secretary of State for the Interior, a second to the Secretary of State for Youth, Sport and Social Affairs, and a third to the public prosecutor at the court of first instance in the judicial district in which the union’s headquarters are located. The last copy stating the date of filing by the receiving authority shall be handed over or sent to the filing parties immediately. Finally, any amendment to the by-laws or to the abovementioned list shall immediately give rise to a new filing of these documents, under the same conditions”.
3. 1136. The Committee notes that the legislative provisions, as drafted, appear to be in line with the principles that it always recalls concerning the establishment of a trade union organization, namely that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently and represent their members adequately [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 295]. Furthermore, national legislation providing that an organization must file its by-laws is compatible with Article 2 of Convention No. 87 if it is merely a formality to ensure that those rules are made public.
4. 1137. The Committee notes the allegation that the steps required by the national legislation were taken in February 2007 but that no reply was received from the authorities. The Committee further notes that, in its replies, the Government merely indicates that checks carried out with the competent authorities showed that the CGTT did not complete the legal formalities required for the establishment of a trade union. The Committee notes that more than two years have passed since the founders of the CGTT attempted unsuccessfully to file the by-laws of the organization and wishes to recall that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations. Any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87. The Committee recalls that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Digest, op. cit., paras 279 and 307]. Consequently, the Committee hopes that, provided that the CGTT completes the formalities prescribed in the Labour Code concerning the establishment of an occupational trade union, the authorities will not fail to recognize its legal personality quickly. The Committee requests the Government to keep it informed of any developments in this regard and, if applicable, to indicate any element taken into account by the Tunis Governorate as grounds for refusing to register the CGTT. The Committee also requests the Government to indicate the legislative provisions which provide for recourse against any obstacle to the filing of trade union by-laws, including any refusal to register a trade union.
5. 1138. The Committee notes the complainant’s indication that press conferences planned for 1 February and 7 December 2007, to inform the public and the media of the establishment of the CGTT were prohibited by the authorities. The Committee notes that the Government does not provide any comments on this matter. The Committee requests the Government to indicate the reasons for the authorities prohibiting the holding of two CGTT press conferences on its establishment.
6. 1139. The Committee also notes that, according to the complainant organization, in the context of the commemoration of the 84th anniversary of the establishment of the first Tunisian trade union organization – the General Confederation of Tunisian Workers created on 3 December 1924 – a meeting of CGTT officials was planned for 30 November 2008 in Tunis. However, the meeting venue was allegedly surrounded by police in considerable number, who informed them that the meeting had been cancelled and blocked access to the intended meeting venue. In this regard, the Committee notes the Government’s reply that checks carried out with the competent authorities showed that the meeting was never announced and that no authority was therefore aware of the meeting and could therefore neither authorize nor prohibit it. According to the Government, the national legislation guarantees trade union organizations the freedom to carry out their activities, including holding meetings, provided that they complete certain administrative formalities required for all public, trade union, political or other meetings. With regard to the commemoration of certain events, a prior declaration to the competent authorities is required in accordance with Act No. 69-4 of 24 January 1969, concerning public meetings, processions, parades, demonstrations and gatherings. The Government adds that the presence of the police in the event of a gathering is always motivated by the desire to avoid threats to law and order.
7. 1140. The Committee expresses its concern at the allegations of repeated violations of the exercise of the right of assembly and freedom of expression. The Committee notes the Government’s indication that these allegations are unfounded. In this regard, the Committee recalls firstly that trade union rights include the right to organize public demonstrations and that the right to hold trade union meetings is an essential aspect of trade union rights. Although the requirement of administrative permission to hold public meetings and demonstrations is not objectionable per se from the standpoint of the principles of freedom of association, it must be ensured that this permission is not arbitrarily refused. Furthermore, in general, the use of the forces of order during trade union demonstrations should be limited to cases of genuine necessity. Furthermore, the Committee recalls that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., paras 150 and 155]. The Committee therefore requests the Government to guarantee fully all workers’ organizations, including the CGTT Liaison Committee, the right to organize public meetings falling within the exercise of trade union rights, insofar as they comply with the general provisions on public meetings applicable to all, and to resort to the use of force only in situations where law and order would be seriously threatened.
8. 1141. The Committee also expresses its concern with regard to the allegations concerning the questioning of Mr Habib Guiza, coordinator of the CGTT Liaison Committee, at the Tunis police station for two hours on the legality of the trade union organization and the action taken by trade unions in the Gafsa region. The Committee notes the indication that Mr Guiza was asked to cease his trade union activities, which were deemed illegal, but that he refused to do so on the basis of the national legislation and international Conventions. As a reprisal measure, the police prevented access to the Tunis training centre of the Association Mohamed Ali chaired by Mr Guiza. The Committee notes the Government’s reply that checks were carried out with the competent authorities, that the complainant’s allegations are completely unfounded, and that no proof has been supplied of the alleged questioning of Mr Guiza or of the prevention of access to the Tunis training centre of the Association Mohamed Ali.
9. 1142. Noting the contradictory information provided by the complainant organization and the Government, the Committee recalls the importance it attaches to the principle that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Digest, op. cit., para. 63], and requests the Government to ensure respect for this principle.
10. 1143. The Committee notes the description provided by the complainant organization of the process for establishing trade unions in enterprises in the Gafsa mining region. It notes that these trade unions were to form the first-level unions of the CGTT and that the initial notifications of their establishment, including, as required by the Labour Code, the union’s by-laws and the complete list of its officials, including the first name and surname, nationality, filiation, date and place of birth, occupation and address of each person, were sent to the Governor of Gafsa. The trade union leaders then informed the management of the CPG, a public enterprise, of the establishment of their trade unions in a communication dated 4 September 2007, but received no reply. The lack of reply prompted the trade union leaders, on 5 May 2008, to report the CPG to the Regional Directorate for Social Affairs and National Solidarity for violation of the aforementioned sections of the Labour code and ILO Convention No. 87. Finally, the Committee notes that, according to the complainant organization, the lack of reply from the authorities prompted the trade unions in question to organize a gathering on 15 May 2008 at the head office of the mining enterprise and at the Regional Directorate for Social Affairs in Gafsa to demand that the trade unions established be recognized and that collective bargaining start with a view to finding solutions to the difficulties encountered by workers at the enterprise and by inhabitants of the mining area in general.
11. 1144. The Committee observes that, in its reply, the Government indicates firstly that neither public nor private employers are obliged under any text to reply to a trade union which sends them information on its establishment. At best, the employer might take note of such information. Furthermore, with regard to the request made by the newly established trade union organizations to engage in meaningful negotiations in the mining area to respond to the difficulties of workers, the Committee notes the detailed information provided by the Government concerning the CPG, which is a public enterprise employing 6,000 workers governed by the general conditions of service of State employees. At the same time, the CPG has its own special regulations governing its relations with its employees. The Committee notes the information provided by the Government on the negotiations held every three years by the CPG, like all public enterprises, for the purpose of improving the working conditions of its employees. The Committee notes that the CPG negotiates with the UGTT, which, according to the Government, is the only legally established trade union to date.
12. 1145. The Committee notes that, according to the Government, requesting negotiations to resolve the problems of the inhabitants of the mining area, as called for by the CGTT, does not come under trade union rights, given that, under section 243 of the Labour Code, occupational trade unions have the sole purpose of examining and defending the economic and social interests of their members. The Government further states that over the last twenty years, it has invested more than 1.8 billion US dollars in the development of the Gafsa region and describes the impact that this has had on all aspects of the life of the region’s inhabitants, in particular on their social well-being. The Committee, recalling that Article 4 of Convention No. 98 encourages and promotes the development and utilization of machinery for collective bargaining on terms and conditions of employment, notes that the objective of the establishment of trade unions in the mining area is, according to the CGTT’s statements, to solve the problems encountered by workers in the enterprise situated in that area, which, in the Committee’s view, falls within the scope of the collective bargaining referred to in the Convention.
13. 1146. The Committee recalls that nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining. However, the Committee has previously had cause to indicate that it would also not be contrary to this provision to oblige social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to enter into negotiations on terms and conditions of employment. The public authorities should however refrain from any undue interference in the negotiation process [see Digest, op. cit., paras 927 and 928]. With regard to the determination of the trade union(s) eligible to engage in bargaining, the Committee notes that the Government refers to the provisions of section 39 of the Labour Code which lay down the procedure for determining the most representative trade union for collective bargaining purposes. The Committee notes that, according to this section, in the event of a dispute on the most representative nature of one or more trade union organizations, an order of the Secretary of State for Youth, Sport and Social Affairs, issued following consultation with the National Social Dialogue Committee, shall determine which of the organizations in question shall be called upon to conclude the collective agreement in the context of the branch of activity and territory concerned. The Committee also notes the indication that negotiations are held with the CPG and the UGTT, which the Government regards as the only legally established trade union organization.
14. 1147. Taking into account that declaration, the Committee urges the Government to indicate the recognized status of the trade union organizations established in the enterprises in the Gafsa region which, according to the complainant organization, sent their by-laws and the list of members of their executive committees by recorded delivery to the Governor of Gafsa on 26 July 2007. If applicable, the Committee requests the Government to indicate why these organizations are not regarded as legally established.
15. 1148. The Committee notes that it has already had cause to remind the Government in a previous case of the principles to which it attaches importance concerning the determination of trade union representativeness in a given sector (see Case No. 2592, 350th Report, paras 1540–1588). In the present case, the Committee considers that it is not its role to express a view on the representativeness of any trade union body in the mining sector or in any enterprise within the sector. However, the Committee recalls that it is important that the determination of the representativeness of trade unions for the purposes of collective bargaining is based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse. In this regard, taking into account the Government’s reference to section 39 of the Labour Code, 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 this section in the CPG enterprise or in the mining sector of the Gafsa region. If such criteria have not yet been established, the Committee hopes that the Government will take all the necessary steps to establish them in consultation with the social partners and that it will keep it informed of any developments in this regard.