Informe provisional - Informe núm. 376, Octubre 2015

1. 992. The Committee examined this case, in the absence of a response from the Government, at its October 2013 meeting and presented an interim report to the Governing Body [see 370th Report, paras 721–739, approved by the Governing Body at its 310th Session].
2. 993. The Government sent some information in a communication dated 26 November 2013.
3. 994. 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. 995. At its October 2013 meeting, the Committee made the following recommendations [see 370th Report, para. 739]:
   • (a) The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case. The Committee urges the Government to be more cooperative in the future.
   • (b) The Committee requests the Government to send its observations on the strike that took place from 22 to 24 May 2012 in the company TUNIS AIR without delay; to indicate, in particular, the reasons for the suspension of the leaders of the CGTT following the strike (namely Belgacem Aouina, Adnane Jemaiel, Faouzi Belam, Imed Hannachi, Walid Ben Abdellatif and Nabil Ayed); and to report on the situation regarding the legal proceedings initiated and, in particular, on any decisions taken in these cases.
   • (c) The Committee requests the Government to send, without delay, its observations on the allegations made by the CGTT concerning the union dues of its members in the public sector for the year 2012, which they allegedly never received.
   • (d) Recalling that it is important for the determination of the representativeness of trade unions for the purposes of collective bargaining at all levels to be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse, the Committee finds itself obliged to reiterate the recommendation that it made in 2010 in a previous case, which requested the Government to take all necessary measures to set these criteria in consultation with the social partners, and to keep it informed of any developments in that regard. The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.

B. The Government’s reply

1. 996. The Government sent some information in response to the Committee’s recommendations in a communication dated 26 November 2013. As regards recommendation (b) concerning the strike that took place from 22 to 24 May 2012 in the company TUNIS AIR, the Government states that, according to the company’s management, a notice of strike had been issued for 22 and 23 May 2012 only. However, the strike continued until 24 May 2012 and thus became an illegal strike causing further serious damage to the company and its clients. As a result, the company had to compensate clients and provide them with accommodation in order to placate them. In the light of the impact of the strike on the company, the management penalized the strikers who had committed acts endangering aircraft safety (the technicians who refused to perform aircraft checks and those who confiscated documents that were crucial for such checks (CRM)). The disciplinary measures did not take into account the union membership of the workers concerned.
2. 997. The Government indicates that three out of the six persons described as leaders of the Tunisian General Confederation of Labour (CGTT) by the complainant organization are not actually trade union officials. With regard to Mr Belgacem Aouina, director of audit and secretary-general of the CGTT, the Government states that he was moved to another management position, as he could not perform his duties in a totally neutral and independent manner as a union leader.
3. 998. As regards the CGTT’s allegations concerning the union dues of its members in the public sector for 2012 that were allegedly withheld (recommendation (c)), the Government recalls that the union dues were paid to the CGTT by virtue of a circular from the head of government for 2011. As no circular had been issued for 2012, the public servants’ dues were not transmitted to the CGTT.
4. 999. As to the establishment of criteria for representative status (recommendation (d)), the Government indicates that trade union pluralism is provided for in the law under the Labour Code and various implementing texts. However, the criteria for representative status have not yet been set, and the Government wishes to do so in consultation with the social partners in a calm setting conducive to dialogue and cooperation. In the meantime, the Government has determined that the Tunisian General Labour Union (UGTT) and the Tunisian Union of Industry, Trade and Handicrafts (UTICA) are the most representative workers’ and employers’ organizations, based on the number of members. Moreover, the Government recalls that it signed a social contract with the UGTT and UTICA in January 2013 with a view to the establishment of national social dialogue council to ensure an ongoing, regular and comprehensive social dialogue. The council would also be responsible for determining the most representative trade union, in accordance with international labour standards.

C. The Committee’s conclusions

1. 1000. The Committee recalls that, in the present case, the allegations of the CGTT refer to acts of interference in its affairs carried out by the authorities; to its exclusion from all national tripartite consultations; and to anti-union acts committed by certain enterprises against its leaders.
2. 1001. When it first examined this case (October 2013), the Committee noted with regret that the CGTT seemed to face difficulties in carrying out its activities more than two years after its registration by the authorities. The Committee noted with concern the allegations made by the complainant organization concerning acts of interference in its affairs, particularly hostile statements made by the Government in the national media against it, and the withholding of the union dues of its members in the public sector for 2012 for no apparent reason, despite the fact that it had received the dues for 2011. The Committee notes that the Government merely indicates that union dues are paid by virtue of a circular from the head of government and that, as such a circular was not issued for 2012, the public servants’ dues were not transmitted to the CGTT. Furthermore, according to the Government, the airline TUNIS AIR was therefore not obliged to deduct the union dues of the public servants who were members of the CGTT. In this regard, the Committee wishes to express its concern at the fact that the system for the collection of public servants’ union dues for the CGTT, which was set up in 2011 following the union’s registration by the authorities, was unilaterally cancelled one year later, without consultation of the organization concerned. Under these circumstances, the Committee urges the Government to restore the system for the collection of union dues of CGTT members in the public sector, in order to avoid any discrimination and to prevent any impact on the freedom of workers to form or join trade unions.
3. 1002. The Committee takes note of the information provided in relation to the strike that took place from 22 to 24 May 2012 at the company TUNIS AIR. The Government states that, according to the company’s management, a notice of strike had been issued for 22 and 23 May 2012 only. However, the strike is alleged to have continued until 24 May 2012 and thus became an illegal strike causing further serious damage to the company and its clients. The company is alleged to have penalized the strikers who had committed acts that allegedly endangered aircraft safety. According to the Government, the disciplinary actions did not take into account the union membership of the workers concerned. In this regard, the Committee wishes to recall that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests, and no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 521 and 660]. While acknowledging that the obligation to give prior notice to the employer before calling a strike may be considered acceptable, the Committee must nevertheless express its concern at the imposition of a limit on the duration of a strike which, due to its nature as a last resort for the defence of workers’ interests, cannot be predetermined.
4. 1003. The Government indicates that three out of the six persons described as leaders of the CGTT by the complainant organization who were penalized following the strike are not actually trade union officials. In this regard, the Committee urges the Government to provide further information so that the complainant organization may respond to this assertion. More generally, the Committee requests the Government to review together with the CGTT the situation of the union leaders who were allegedly suspended in violation of the principles recalled above and, where appropriate, to ensure that they are provided with appropriate compensation. The Committee requests the Government to keep it informed in this regard.
5. 1004. With regard to the transfer of Mr Belgacem Aouina, director of audit and secretary general of the CGTT, the Government states that he was moved from auditing to another management position, as he could not perform his duties in a totally neutral and independent manner as a union leader. The Committee expresses its concern at this type of generalization. It requests the Government and the complainant organization to provide further information regarding the transfer of Mr Aouina and to indicate whether he has appealed the decision to transfer him and the outcome, if any. In the meantime, the Committee wishes to recall that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties with full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799].
6. 1005. Lastly, the Committee takes note of the information provided by the Government that the criteria for the representative status of trade unions have not yet been set. The Government explains that it wishes to do so in consultation with the social partners in a calm setting conducive to dialogue and cooperation. In the meantime, the Government has determined that the UGTT and UTICA are the most representative workers’ and employers’ organizations, based on the number of members. Moreover, the Government recalls that it signed a social contract with the UGTT and UTICA in January 2013 with a view to the establishment of national social dialogue council to ensure an ongoing, regular and comprehensive social dialogue. The council would also be responsible for determining the most representative trade union, in accordance with international labour standards.
7. 1006. The Committee considers that a number of issues that have been raised in this case may be settled more effectively in an environment where each trade union may carry out its activities without hindrance and where privileges potentially given to certain organizations vis-à-vis others are based on representative status that is clearly established. The Committee therefore once again reiterates to the Government its long standing recommendation to take all necessary measures to set clear and pre-established criteria for trade union representation in consultation with the social partners, and to keep it informed of any progress in this regard. The Committee expects all the organizations concerned to be consulted in this regard and once again reminds the Government that it may avail itself of the technical assistance of the Office if it so desires.
8. 1007. The Committee expects the Government to take all necessary measures to respond urgently and thoroughly to its recommendations and, in the event that, in the present case, the allegations refer to problems in a particular enterprise, the Committee urges the Government to make efforts to obtain the comments of the enterprise, via the employers’ organization concerned, so that the Committee may examine the case in full knowledge of the facts.