Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the Government’s report.

The Committee recalls firstly that its last comment related to the following four issues:

n  section 8 of Act No. 90-14 of 2 June 1990 concerning the registration of trade union organizations and, more precisely, its general application in practice and in particular in the case of the Algerian Confederation of Autonomous Trade Unions (CASA);

n  section 1, in conjunction with sections 3, 4 and 5, of Legislative Decree No. 92-03 of 30 September 1992, defining as subversive certain activities, and its possible repercussions on the exercise of the right to strike;

n  sections 43 and 48 of Act No. 90-02 of 6 February 1990 providing, on the one hand, for the prohibition of strikes on grounds of a serious economic crisis and, on the other, for compulsory arbitration to bring an end to a collective dispute; and

n  the reform of the conditions of service of the public service.

Articles 2 and 5 of the Convention. Right of workers, without previous authorization, to establish and join organizations of their own choosing and to establish federations and confederations. The Committee notes that the Government’s comments on the provisions of Act No. 90-14 are confined to indicating that it gives full effect to the Convention and that the laws governing freedom of association contain no provisions limiting, in any way, the exercise of the right to organize. The Government indicates, among other points, that no prior authorization is required under Act No. 90-14 for the establishment of a trade union organization and that this Act applies in identical terms to all salaried employees irrespective of their sector. The Government adds that the Act provides for penal sanctions against any hindrance of the free exercise of the right to organize. The Committee nevertheless recalls that, in its previous comments, the International Confederation of Free Trade Unions (ICFTU) contended that, in practice, the authorities prevent the registration of certain trade unions by refusing to issue a receipt of registration; the ICFTU referred in this respect to the case of CASA. At that time, the Government had already indicated that Act No. 90-14 required no authorization for the establishment of a trade union organization and that, with regard to the case of CASA, unions could conduct their activities within the framework of the envisaged confederation without awaiting the legal opinion of the Ministry of Labour and Social Security. The Committee, however, noted that the Government’s reply in Case No. 2153 examined by the Committee on Freedom of Association referred to its refusals of the application for registration of two confederations, including CASA (see 327th Report, paragraphs 140-161).

The Committee therefore recalls that questions arise not in relation to the provisions of Act No. 90-14 themselves, but concerning their application in practice. In this respect, it once again draws the Government’s attention to the fact that national regulations governing the constitution of occupational organizations are not in themselves incompatible with the provisions of the Convention, provided that they do not impair the guarantees granted by the Convention, and particularly that they are not equivalent in practice to a requirement for previous authorization for the establishment of trade union organizations, which is prohibited by Article 2 (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 68 and 69). The Committee also notes that the Government recognized in the case examined by the Committee on Freedom of Association that difficulties might arise in the interpretation of the provisions respecting the right of the social partners to establish federations and confederations. In these conditions, the Committee once again requests the Government to provide clarifications on the application in practice of section 8 of Act No. 90-14, and particularly on the following aspects: the grounds on which registration may be refused, the related provisions, and their practical implications for the existence and functioning of an occupational organization and the right of appeal of such organizations against a refusal of their registration or the absence of acknowledgement of registration within the prescribed time limit. Finally, the Committee requests the Government to provide precise information on the manner in which the issue of the registration of CASA has finally been resolved.

Article 3. Right of organizations to organize their activities and formulate their programmes without any interference from the public authorities. Noting with regret that the Government has not provided any information with regard to Legislative Decree No. 92-03 of 30 September 1992, the Committee recalls that section 1 of this Decree, read together with sections 3, 4 and 5, defines as "subversive acts" offences directed, in particular, against the stability and normal functioning of institutions through any action intended to: (1) obstruct the operation of establishments providing public services; or (2) impede traffic or freedom of movement in public places or thoroughfares, under penalty of severe sanctions including imprisonment for up to 20 years. In the past, the Government had indicated that this Decree, issued under special circumstances, was not intended to cover the right to strike or freedom of association and that it had never been applied to workers exercising the right to strike peacefully. The Committee recognized in this respect that the great majority of the provisions of the Decree do not lie within the scope of the protection afforded by the Convention. However, the very general wording of certain provisions, and particularly of those referred to above, implies a risk of violation of the right of workers’ organizations to organize their activities and formulate their programmes to defend the interests of their members, including through recourse to strike action. The Committee therefore requests the Government to limit the scope of the Legislative Decree through the adoption of legislative measures or regulations which have the effect of ensuring that this text may not in any event be applied to workers who have exercised the right to strike peacefully. The Committee also requests the Government to keep it informed of any cases in which this Decree has been applied in the context of a strike.

Also noting with regret that the Government has not supplied any information on Legislative Decree No. 90-02 of 6 February 1990, the Committee recalls that section 43 of this Decree bans strikes not only in essential services the interruption of which would endanger the life, personal safety or health of the population, which the Committee has always considered admissible, but also where the effect of the strike is likely to engender a serious economic crisis, with collective disputes in such cases being subject to the conciliation and arbitration procedures provided for by the law. Furthermore, section 48 authorizes the Minister or the competent authority, where the strike persists and after the failure of mediation, to refer a collective dispute to the arbitration commission, after consultation of the employer and the workers’ representatives. In previous reports, the Government contended that cases are only referred to the arbitration commission in the event of urgent economic and social necessity. The Committee wishes to emphasize once again that referral to arbitration in order to end a collective dispute should be allowed only if both parties so request and/or only in the event of a strike in essential services in the strict sense of the term, or in the case of a strike the extent and duration of which are likely to give rise to a serious national crisis. It therefore requests the Government to indicate the measures adopted or envisaged to amend the legislation as indicated above with a view to fully guaranteeing the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities, in accordance with Article 3. The Committee also requests the Government to provide information on the manner in which sections 43 and 48 have been applied in practice.

Finally, the Committee reiterates its request to the Government concerning the progress made in the work of the National Commission for the Reform of State Institutions and requests it to provide any documentation on this subject, including any draft legislation respecting the conditions of service of the public service.