Informe provisional - Informe núm. 378, Junio 2016

1. 775. The complaint is contained in communications from the Tunisian Labour Organization (OTT) dated 10 June 2014, June 2015 and 6 November 2015.
2. 776. The Government sent its observations in a communication dated 8 March 2016.
3. 777. 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. 778. In its communications of 10 June 2014, June 2015 and 6 November 2015 respectively, the OTT alleges that it has been subjected to intimidation and anti-union acts by the authorities since it was founded. The complainant denounces this situation which, it claims, constitutes a denial of the provisions of the National Constitution, in particular article 35 thereof, which enshrines trade union pluralism.
2. 779. The complainant denounces the Government’s refusal to implement Cabinet Circular No. 35 of 27 January 2014 authorizing the deduction of union dues for the OTT. The complainant states that this refusal has placed it in a difficult financial situation since it cannot cover its operating costs without the union dues of its members. It is only able to cope because of donations from its members. Even so, the water supply to the union headquarters was cut off recently because of an unpaid bill.
3. 780. The complainant denounces in particular hostile acts against it by a rival trade union federation, the Tunisian General Labour Union (UGTT). According to the complainant, the UGTT rejects trade union pluralism and has launched a smear campaign against the OTT and its members in the national media. Violent acts, such as those committed at the Place Mohamad Ali on 4 December 2013, have been wrongly attributed to OTT members. However, the complainant asserts that it is unable to respond to these attacks since it is denied access to the media.
4. 781. The hostile acts are especially noticeable in the education sector, where the minister received a reprimand from the Government for meeting the OTT general secretary. The organization’s posters have been torn up and OTT members have been subjected to physical and verbal abuse by UGTT representatives in schools in places such as Mahdia, Kairouan, Tataouine and Tunis. Furthermore, the regional primary education trade unions and education employees and officials in Mahdia have published hostile statements against the OTT and its members. Lastly, the regional education delegate in Mahdia was forced to resign on the grounds that he had met an OTT delegation. He was then replaced by a pro-UGTT delegate.
5. 782. According to the complainant, the Government is making no effort to find a solution to the UGTT’s hostile attitude and its refusal to accept trade union pluralism in the country. On the contrary, the complainant denounces the discriminatory treatment towards its members in the public service, particularly intimidation and measures depriving them of all the promotions and benefits to which they are entitled in law. The complainant further states that it has received numerous reports of acts preventing the members of its local and regional bodies from duly carrying out their activities (torn posters, physical violence, banned union meetings). The ministries responsible for various administrative departments have requested them not only to have no dealings with the OTT but also to ban its union bodies from carrying out their activities. Accordingly, OTT demands made to the relevant officials in various administrative departments in Tunisia have received no response.
6. 783. In its communication dated 6 November 2015, the complainant reports numerous abuses against its representatives in the form of transfers and false accusations. At the Société des transports de Tunisie [Tunisian Transport Company] (TRANSTU), the general secretary of the primary trade union council for TRANSTU employees in Beb Saadoun, Mr Mohamed Ali Thulaithi, and the general secretary of the primary trade union council for light-rail employees, Mr Majdi El-Abdali, were both summoned before a disciplinary board in November 2015, further to which they were suspended for engaging in trade union activities and deprived of all promotions or benefits to which they were entitled. The same anti-union treatment was also inflicted on the OTT’s representatives at the Central Bank of Tunisia, namely the general secretary of the primary trade union council for staff and managers of the Central Bank, Ms Najwa Khila Thab, and the deputy general secretary for media relations, Mr Kamal Kamoun, who were summoned before the disciplinary board and suspended for a month. In addition, the deputy general secretary, Mr Yassine Ben Ismaïl, was summoned before the disciplinary board and dismissed outright.
7. 784. Moreover, the Government knowingly adopted regulatory texts that were favourable to the UGTT. The organization quotes as an example Circular No. 34 of 17 January 2014 (a copy was sent with the complaint) concerning the deduction of trade union dues in government departments. The OTT objects to the provision that states that the trade union dues of public employees will be deducted and paid to the UGTT for six months after they leave that federation. However, such a provision creates a discriminatory situation for the new trade union federation which the employees wished to join since the federation would be deprived of their contributions for six months. The OTT states that it lodged an appeal against this circular with the administrative court of Tunis in February 2014 on grounds of abuse of power. The appeal was rejected by the administrative court in April 2014. The OTT also objects that during the appeal proceedings the court allowed the UGTT to submit a written report in response to the appeal whereas the OTT was not party to the proceedings in question.
8. 785. Moreover, the complainant denounces several attempts to murder its general secretary, Mr Lasaad Abid. On one occasion, Mr Abid received a booby-trapped package which immediately caused skin inflammation on contact. The OTT reported these incidents to the judicial authorities and an investigation is in progress.
9. 786. The OTT asserts that it has made requests for a meeting with the head of government with a view to resolving these problems but the latter has always refused such meetings. The OTT’s requests for meetings have also been refused by the Minister for Social Affairs. The Government’s position invites scrutiny and is evidence of its pro-UGTT stance. The OTT denounces the fact that, despite its official request, it was excluded from the Tunisian delegation to the 103rd Session (June 2015) of the International Labour Conference. Despite the fact that there are other trade union federations in the country, the Government only invited the UGTT as representative of the workers at the Conference.
10. 787. Lastly, the complainant denounces the fact that the Government’s current refusal to take account of its existence and its grievances means that the OTT is absent from all negotiations between the workers and the administration. The only workers’ organization accepted by the Government is the UGTT. Hence the OTT, like several other national trade union federations, was not involved in the negotiation and signing in January 2013 of the social contract between the Government, the UGTT and the Tunisian Confederation of Industry, Trade and Handicrafts (UTICA). Nor was the OTT involved in the dialogue that culminated in the conclusion of the agreement of 7 January 2014 between the Government and the UGTT concerning employment mechanism No. 16 (which deals with the regularization of construction workers and labourers); however, this agreement has been rejected by the majority of workers in the sector, since such workers are often in an employment relationship which contains features of temporary work and outsourcing (known as al-mounawata) and most of them are represented by the OTT.
11. 788. However, the UGTT no longer makes any secret of its hostility towards trade union pluralism and even claims that it derives its legitimacy as sole negotiator for the workers of the social contract which it alone negotiated and signed with the Government. The Government’s silence is an avowal of impotence in the face of the proven capacity of the UGTT to mobilize its members and disrupt the economic activity of the country.
12. 789. The complainant declares that its existence is under serious threat and asks the Committee to urge the Government to recognize trade union pluralism in practice and to stop all forms of intimidation and anti-union acts against its members by acting with strict neutrality towards all trade union federations in the country. The complainant requests ILO assistance to determine the reality of the trade union situation in the country and to find solutions to the problems that it reports.
13. 790. Lastly, the complainant calls for a revision of the labour laws to bring them into conformity with international labour Conventions. It states that the Government should set this process in motion by creating the Higher National Council for Social Dialogue, with the inclusive participation of five representatives of the workers and three representatives of the employers’ organizations.

B. The Government’s reply

1. 791. In its communication dated 8 March 2016, the Government states that the OTT benefits from the check-off system for trade union dues in respect of public employees who are members for 2016, in accordance with Circular No. 2 of 4 January 2016. Other trade union organizations, namely the Tunisian General Confederation of Labour (CGTT) and the Workers’ Union of Tunisia (UTT) have also enjoyed this facility.
2. 792. As regards the lack of recognition of trade union pluralism, the Government states that this belongs to the sphere of inter-union relations and therefore it cannot be held responsible for the situation.
3. 793. As regards the allegations concerning the Government’s refusal to negotiate with the OTT, the Government points out that the legal existence of a trade union body does not necessarily mean that it enjoys all rights and benefits deriving from trade union law, since the legislator can regulate its access to rights and benefits and impose limits and restrictions. Hence it is within the legislative framework that the rules governing collective bargaining are established with a view to regulating labour relations. The Government refers to section 38 of the Labour Code, under which collective bargaining, as a benefit deriving from the right to organize, is subject to the condition that the trade union or trade union organization be “the most representative”, a proviso that the Committee on Freedom of Association authorizes States to establish in their legislation on collective bargaining. Hence the capacity of the employers’ or workers’ organizations to engage in collective bargaining in the public and private sectors is subject to the principle of trade union representativeness, which requires the organizations concerned to be the most representative. The Government observes that the OTT accepts this principle in its complaint.
4. 794. As regards the allegations concerning the conclusion of the social contract, the Government affirms that these negotiations were conducted with a view to concluding an agreement that is only binding on the three parties concerned, namely the Government, the Tunisian General Labour Union (UGTT) and the Tunisian Federation of Industry, Trade and Handicrafts (UTICA). Indeed, these three parties were the only ones that expressed a wish to be bound by the social contract. The Government considered it important to give concrete expression to the rapprochement between the social partners and make progress towards concluding a social contract, in order to speed up the transition to democracy and promote social harmony in a period increasingly dominated by strikes and demands. Moreover, the Government recalls that the process in question was undertaken in collaboration with the ILO and the Governments of Belgium and Norway as part of a project to promote social dialogue in Tunisia.
5. 795. As regards the allegations concerning the existence of irregularities towards members and officers of the OTT (dismissals, discriminatory transfers, suspensions, denial of promotions), the Government indicates that it will forward to the Committee the information that it has requested from the parties concerned (administrative departments and enterprises).
6. 796. Lastly, as regards the OTT’s allegation concerning the impossibility of secondment for its members, the Government refers to chapter 59 of Act No. 112 of 12 December 1983, issuing the General Public Service Regulations and also to chapter 43 of Act No. 78 of 5 August 1985, issuing the General Regulations for employees of public agencies, public industrial and commercial undertakings, and companies whose capital belongs directly or entirely to the State or to local authorities, these being regulations that make no provision for staff secondment. Consequently, the OTT’s request for secondment of its members cannot be met because of the legislation in force.

C. The Committee’s conclusions

1. 797. The Committee notes that, in the present case, the complainant organization reports serious anti-union acts committed against it by the authorities and by a rival trade union federation ever since it was founded and also the Government’s refusal to include it in the process of collective bargaining in the public service.
2. 798. The Committee notes, firstly, the allegations of the OTT concerning the problems arising from the Government’s refusal to transfer to it the trade union dues of the public employees who are its members, to which it is entitled in accordance with Cabinet Circular No. 35 of 27 January 2014. The Committee notes with concern that this refusal has placed the OTT in a difficult financial situation, particularly as regards covering its operating costs. The Committee notes the statement that on 4 January 2016, the Government published Circular No. 2 concerning the deduction of trade union dues for 2016 for public employees to the benefit of several trade union organizations, including the OTT. This Cabinet circular to the various ministries authorizes them to check off the union dues for 2016 of the members of the three trade union federations referred to in the circular. The Committee welcomes the government circular authorizing the deduction of trade union dues for the OTT for 2016 under the check-off system in the public sector and invites the Government to hold consultations with all the trade union organizations concerned with a view to permanently establishing a system which ensures that all trade union organizations in the public sector can benefit from the deduction of their members’ union dues under the check-off system.
3. 799. The Committee notes the indication that the OTT filed an appeal for abuse of power against Cabinet Circular No. 34 of 17 January 2014, which it considers shows bias towards the UGTT regarding the deduction of its members’ union dues. The OTT objects to the provision which states that the trade union dues of public employees will be deducted and paid to the UGTT for six months after they leave that federation. According to the OTT, such a provision creates a discriminatory situation for the new trade union federation which the employees wished to join since the federation would be deprived of their contributions for six months. The Committee notes that the appeal lodged by the OTT with the administrative court of Tunis in February 2014 was rejected in April 2014. In general, the Committee considers that workers should have the possibility of opting for deductions from their wages under the check-off system to be paid to trade union organizations of their choice, even if they are not the most representative [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 477]. In the present case, the Committee observes that the provision established in Circular No. 34 concerning the UGTT to deduct the trade union dues of a public employee and pay them to a trade union for six months after the employee has left the union in question relates to section 254 of the Labour Code, according to which “any member of a trade union may, unless otherwise stipulated, relinquish his/her membership without prejudice to the union’s entitlement to the dues concerned for six months after the employee has left the union”. The Committee observes that Circular No. 35 concerning the OTT does not establish a similar provision. The Committee requests the Government to ensure, with a view to equal treatment for all trade unions, that all Cabinet circulars concerning the deduction of trade union dues of public employees give equal treatment to all persons in matters relating to the cancellation of union membership. The Committee urges the Government to provide detailed observations on this matter.
4. 800. The Committee notes with concern the allegations regarding discriminatory treatment towards representatives of the OTT in the public service and in public undertakings, including intimidation or the denial of promotions to which they are entitled in law. The Committee notes the list of OTT representatives who, according to the complainant, were subjected to discriminatory penalties in the sectors of banking (Yassin Ben Ismail, Najwa Khila Ben Thabet and Kamal Kamoun), education (Samir El-Zawari and Imad Belkassem), agriculture (Saber Eliyadi) and transport (Mohamed Ali Thulaithi and Madji El-Abdali). The penalties range from suspension of the worker for a specified period to permanent dismissal. The Committee recalls that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct. Furthermore, in no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination [see Digest, op. cit., paras 804 and 808]. Noting the Government’s statement that it has asked the administrative departments and enterprises concerned to provide it with information on the irregularities described, the Committee expects the Government to send information as soon as possible on the various measures that have affected the abovementioned OTT members and officers. The Committee urges the Government to take the necessary steps to expedite the investigations relating to the cases of permanent dismissal of trade unionists and, should these dismissals prove to have been on anti-union grounds, to ensure the reinstatement of the trade unionists with the payment of all outstanding wages. If reinstatement is not possible for objective and compelling reasons, adequate compensation must be awarded as reparation for all injury suffered and to prevent any recurrence of such acts in the future.
5. 801. In more general terms, the Committee notes with concern allegations relating to anti-union violence towards OTT members and the impossibility for OTT local and regional bodies to function properly (torn posters, physical violence, banned union meetings). The Committee requests the Government to expedite investigations of the administrative departments concerned on the basis of the allegations and, if necessary, to take urgent corrective measures and send its observations in this respect.
6. 802. The Committee notes the complainant’s allegation that the Government’s current refusal to take account of its constitution and demands has resulted in the OTT being absent from all negotiations between the workers and the administration. Hence the OTT, like several other national trade union federations, was not involved in the negotiation and signing in January 2013 of the social contract between the Government, the UGTT and UTICA. The Committee notes that, according to the Government, these negotiations were conducted with a view to concluding an agreement that is only binding on the three parties concerned, namely the Government, the UGTT and UTICA, since in fact only these three parties expressed a wish to be bound by the social contract. The Government adds that it was important to give concrete expression to the rapprochement between the social partners and make progress towards concluding a social contract, in order to speed up the transition to democracy and to promote social harmony in a period increasingly dominated by strikes and demands.
7. 803. The OTT also complains that it was not involved in the dialogue that resulted in the conclusion of the agreement of 7 January 2014, between the Government and the UGTT concerning employment mechanism No. 16, despite the fact that, according to the OTT, it represents the majority of workers who are in an employment relationship containing features of temporary work and outsourcing (al-mounawata). The Committee requests the Government to provide detailed observations on this matter and recalls the importance of consulting all trade union organizations concerned on matters affecting their interests or those of their members.
8. 804. As regards the OTT’s allegations concerning the Government’s refusal to register it as part of the Worker delegation to the 103rd Session (June 2014) of the International Labour Conference, the Committee recalls that the question of representation at the Conference comes within the competence of the Credentials Committee and that no objection or complaint was lodged with the Credentials Committee in June 2014 with regard to the composition of the Worker delegation of Tunisia.
9. 805. The Committee notes the complainant’s allegations concerning hostile acts against it by the UGTT, including a smear campaign against the OTT in the national media and intimidation of its members, particularly in the education sector. In general terms, the Committee considers that a matter involving no dispute between the government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves [see Digest, op. cit., para. 1113]. The Committee requests the Government to ensure that comments or acts by the authorities do not result in obstruction of the exercise of trade union rights by the OTT or its members.
10. 806. Lastly, noting with deep concern the allegations relating to several attempts to murder OTT general secretary Mr Lasaad Abid, the Committee requests the Government to keep it informed of the outcome of the investigation.
11. 807. The Committee considers that a number of issues raised in the present case might be resolved more effectively in an environment where every trade union organization could conduct its activities without obstruction and where any privileges granted to certain organizations vis-à-vis others are based on clearly established representativeness. The Committee observes that the Government itself refers to the legislation in force relating to collective bargaining, particularly the need to acquire the status of most representative organization. The Committee therefore once again reiterates its long-standing recommendation to the Government to take all necessary steps to lay down clear and pre-established criteria for determining trade union representativeness, in consultation with the social partners, and to keep it informed of any progress made on this matter. The Committee expects all the organizations concerned to be consulted in this respect and reminds the Government once again that it may avail itself of ILO technical assistance, if it so wishes.