Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 356, Marzo 2010

1. 1263. The Committee last examined this case at its May–June 2009 session and submitted an interim report to the Governing Body [see 354th Report, paras 1117–1149, approved by the Governing Body at its 297th Session].
2. 1264. The Government sent its observations in a communication dated 3 September 2009.
3. 1265. 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. 1266. At its May–June 2009 session, the Committee made the following recommendations:
   • (a) The Committee trusts that, in so far as the CGTT has completed the formalities laid down in the Labour Code concerning the establishment of an occupational trade union, the authorities will not fail to recognize its legal personality rapidly. 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.
   • (b) The Committee 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.
   • (c) The Committee 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 provided that they comply with the general provisions concerning public meetings applicable to all, and to resort to the use of force only in situations where law and order would be seriously threatened.
   • (d) The Committee requests the Government to indicate why the authorities prohibited the holding of two press conferences by the CGTT on its establishment.
   • (e) Taking into account the Government’s statement that it regards the CGTT as the only legally established trade union organization, the Committee urges it to indicate the recognized status of the trade union organizations established in the enterprises of 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.
   • (f) The Committee requests the Government to indicate the objective and pre-established criteria that have been set for determining the representativeness of the social partners in accordance with section 39 of the Labour Code 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.

B. The Government’s reply

1. 1267. In a communication dated 3 September 2009, the Government sent its observations on the Committee’s recommendations.
2. 1268. With regard to the Committee’s recommendations in connection with the refusal to register the Tunisian General Confederation of Labour (CGTT), the Government reiterates that the Labour Code does not contain any particular formalities governing the establishment of a trade union and it does not stipulate recognition by the authorities to grant legal personality and financial autonomy. The Government therefore declares that the refusal to register the CGTT by the Tunis Governorate is incorrect as the administration should not interfere in a procedure to establish a trade union. The Government notes that the establishment of a trade union occurs in an individual, personal and direct manner that must not be hampered by any obstacle. If it were shown that the administration had hindered this procedure, the administrative tribunal would be the competent authority to settle any application for judicial review, in accordance with article 3 of Act No. 72-40 of 1 June 1972 concerning the administrative tribunal as amended by Act No. 2002-11 of 4 February 2002.
3. 1269. With regard to the Committee’s recommendations in connection with the right of trade unions to organize public meetings, the Government reiterates that all trade union organizations can hold public meetings provided they respect the administrative formalities set forth in Act No. 69-4 of 24 January 1969 regulating public meetings, processions, marches, demonstrations and gatherings. Also, recourse to the use of force is only required in situations where the security of individuals and property so demand. It recalls that police intervention obeys legally established rules.
4. 1270. Once again, the Government refutes the CGTT’s allegations concerning the prohibition by the authorities to hold two CGTT press conferences on its establishment. According to the Government, the complainant organization does not provide any evidence in support of this claim and no appeal has been lodged against an alleged prohibition by the authorities.
5. 1271. Concerning trade unions established in the enterprises of 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, the Government states that these allegations have not been corroborated by any evidence. The Government states that if none of the trade unions that were allegedly set up have yet begun to operate, that tends to confirm that the registration formalities have never been completed.
6. 1272. Lastly, the Government states that while article 39 of the Labour Code establishes the principle of the greatest representation to determine the organization that will conclude the collective agreement in a specific branch of activity and territory, the criteria for determining this representation are currently under preparation. The Government adds that the representative workers’ and employers’ organizations will be consulted about the matter at the appropriate time. It concludes by stating that the provisions of article 39 only apply in the event of a dispute between legally constituted trade union organizations, which is not the situation in the present case.

C. The Committee’s conclusions

1. 1273. The Committee recalls that the present case concerns allegations of the refusal by authorities to register the establishment of the Tunisian General Confederation of Labour (CGTT) and authorize it to hold press conferences to inform the public of its establishment, and of 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.
2. 1274. With regard to the registration of the CGTT, the Committee recalls that it had indicated that if the complainant organization complied with the formalities prescribed in the Labour Code concerning the establishment of an occupational trade union, the authorities should not fail to recognize its legal personality quickly. The Committee had asked 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, according to the complainant organization’s allegations. The Committee notes that in its reply the Government reiterates that the CGTT did not complete the legal formalities required for the establishment of a trade union and that the alleged refusal to register the CGTT by the Tunis Governorate is unfounded as the administration should not interfere in a procedure to establish a trade union.
3. 1275. The Committee recalls that, according to the complainant organization, the unsuccessful initiative by the founders of the CGTT to file the by-laws of the organization dates back to February 2007, namely three years, without success. The Committee can but once again express its concern at this particularly long delay, despite the Government’s explanations on the declaratory nature of the registration procedure for trade unions. The Committee recalls the following principles concerning the establishment of a trade union organization: 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. Furthermore, 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 279 and 307]. The Committee once again asks the Government to keep it informed of developments regarding the registration of the CGTT and trusts 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.
4. 1276. Concerning its request to the Government to indicate the reasons for the authorities prohibiting the holding of two CGTT press conferences on its establishment, the Committee notes that the Government once again rejects the complainant organization’s allegations, indicating that no proof has been supplied to back them up, and that no appeal has been lodged against the administration on this point. The Committee notes that the information provided on this matter by the complainant organization and the Government remains contradictory. It recalls that the right to organize public meetings constitutes an important aspect of trade union rights. In this connection, the Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives, which it has considered as falling within the exercise of trade union rights, and those designed to achieve other ends. 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. The maintenance of public order is not incompatible with the right to hold demonstrations so long as the authorities responsible for public order reach agreement with the organizers of a demonstration concerning the place where it will be held and the manner in which it will take place; permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Digest, op. cit., paras 134, 141 and 142]. The Government is requested to ensure compliance with the principles recalled above, guaranteeing to all representative organizations, including the CGTT Liaison Committee, the right to organize public meetings falling within the exercise of trade union rights, in so far 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.
5. 1277. With regard to its recommendation concerning the status of the trade union organizations established in the enterprises of 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, the Committee notes the Government’s declaration reiterating that the complainant organization’s allegations have not been corroborated by any evidence and that none of the trade unions have yet begun to operate as the registration formalities have never been completed. In this regard, the Committee invites the complainant organization to communicate to the authorities all useful documentation in support of its allegations that the appropriate formalities were completed in July 2007. Provided that the complainant organization or the trade union organizations concerned supply the documentary evidence in support of their allegations, the Committee expects the Government and the competent authorities to take the necessary measures to ensure that the trade union organizations that have satisfied the relevant legal requirements are registered without delay. The Committee asks to be kept informed in this respect.
6. 1278. With regard to its recommendation concerning the objective and pre-established criteria that have been set for determining the representativeness of the social partners in accordance with article 39 of the Labour Code in the Compagnie des Phosphates de Gafsa (CPG) enterprise or in the mining sector of the Gafsa region, the Committee notes the Government’s indication that these criteria are under preparation and that the representative workers’ and employers’ organizations will be consulted about the matter at the appropriate time. The Committee requests the Government to keep it informed of any new developments in this regard.
7. 1279. Finally, the Committee recalls that governments should recognize the importance of formulating detailed replies to the allegations brought against them and should not limit themselves to general observations, particularly when the case has been the subject of an in-depth examination by the Committee and of recommendations. The Committee’s procedures require that governments respond in a detailed and expeditious manner so as to allow for an effective examination by the Committee. The Committee expects that the Government will take all necessary measures to find a rapid solution to this case in accordance with the principles of freedom of association and that it will provide detailed information on progress made in this direction without delay.