Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report. It also notes the comments of the International Trade Union Confederation (ITUC) dated 28 August 2007 concerning issues already examined by the Committee. Also, the ITUC condemns steps taken to obstruct the registration of trade unions, the arrest of trade unionists and reprisals against strikers … (in the course of the judicial procedures). In this respect, the Committee notes that the Government indicates, among other things, that no trade unionists have been harassed for the reason of their trade union activities. The Committee requests the Government to provide detailed information on the allegations of arrests and reprisals of teachers-trade unionists, following strike and to transmit copies of the relevant judicial decisions.

Article 2 of the Convention. Right to form organizations. The Committee observes that section 6 of Act No. 90-14 of 2 June 1990, as modified, limits the right to establish a trade union to persons who have been Algerian nationals for at least ten years. The Committee recalls that the right to organize must be guaranteed to workers and employers without distinction or discrimination whatsoever, with the exception of those categories contained in Article 9 of the Convention, and that foreign workers must also be able to establish organizations of their own choosing. The Committee requests the Government to take the necessary steps to ensure that section 6 of Act No. 90-14 conforms to the principles guaranteed by the Convention.

Articles 2 and 5. Right of workers to establish and join organizations of their own choosing without previous authorization and to establish and join federations and confederations. In its previous comments, the Committee requested the Government to keep it informed of measures taken to: (1) amend the legislative provisions preventing workers’ organizations from forming federations and confederations of their own choosing, irrespective of the sector to which they belong (see sections 2 and 4 of Act No. 90-14); and (2) consult the social partners in order to eliminate any difficulties which might arise in practice from the interpretation of certain legislative provisions on the formation of federations and confederations and particularly, in this case, which might hinder the recognition of the Algerian Confederation of Autonomous Trade Unions (CASA). In its reply, the Government states that Act No. 90-14 of 2 June 1990 is inspired by Convention No. 87 and that the labour legislation does not in any way restrict either the freedom to form a trade union organization or its activities. With regard to the aspects relating to the establishment of federations and confederations under section 4 of Act No. 90-14 of 2 June 1990, the Government states that it is aware of the need to clarify the wording of this provision by introducing a definition of the notions of federation (or union) and confederation, and indicates that the section concerned is under examination so that this concern can be dealt with. With regard to the specific case of CASA, the Government states that this organization has been invited to bring its statutes into line with the provisions of the legislation currently in force. The competent authority is currently awaiting a response from CASA founders. Moreover, the Committee observes that, in Case No. 2513 examined by the Committee on Freedom of Association (see 336th Report), the Government had specified that the joint application of sections 2 and 4 of Act No. 90-14 signifies that the coming together of two different sectors, as is true in the case of the membership of the National Air Navigation Trade Union in this confederation of public administration sector unions, does not comply with the aforementioned section 2 of the Act. The Committee asks the Government to take concrete steps to amend the legislative provisions preventing workers’ organizations from forming federations and confederations of their own choosing, irrespective of the sector to which they belong. The Committee asks the Government to keep it informed of any measures taken in this respect.

Article 3. Exercise of the right to strike. In its previous comments, the Committee also requested the Government to limit the scope of Legislative Decree No. 92-03 of 30 September 1992 (section 1 of which, 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: (i) obstruct the operation of establishments providing public services; or (ii) impede traffic or freedom of movement in public places or thoroughfares, under penalty of severe sanctions, including imprisonment for up to 20 years), through the adoption of legislative measures or regulations to ensure that this text may not in any event be applied to workers who have exercised the right to strike peacefully. While noting the Government’s comments on the reasons for adopting this Decree, the Committee notes that Ordinance No. 95-11 of 25 Ramadhan 1415 corresponding to 25 February 1995, amending and completing Ordinance No. 66‑156 of 8 June 1966 issuing the Penal Code, repeals, in its section 2, the abovementioned Legislative Decree No. 92-03 of 30 September 1992 concerning action taken to combat subversion and terrorism. The Committee notes that section 87bis of the Penal Code amended by the above Ordinance continues to define as subversive any act directed against the stability and normal functioning of institutions through any action intended to: (i) obstruct the operation of establishments providing public services; or (ii) impede traffic or freedom of movement in public places or thoroughfares, under penalty of sanctions including the death penalty, when the sanction provided for by law is life imprisonment. The Committee therefore reiterates its opinion that the very general wording of certain provisions involves a risk of infringing the right of workers’ organizations to organize their activities and to formulate their programmes in defence of the interests of their members particularly through strike action. The Committee asks the Government to take steps to amend the Penal Code (section 87bis) so as to ensure that this text may not in any event be applied to workers who have exercised the right to strike peacefully. The Committee asks the Government to keep it informed of any developments in this respect.

The Committee also requested the Government to amend section 43 of Act No. 90-02 of 6 February 1990, which bans strikes not only in essential services the interruption of which would endanger the life, personal safety or health of the population, but also where the strike is likely to give rise to a serious economic crisis, with collective disputes in such cases being subject to the conciliation and arbitration procedures provided for by the law. The Committee also requested the Government to amend section 48 of the same Act, which authorizes the Minister or the competent authority, where the strike persists or after the failure of mediation, to refer the dispute to the National Arbitration Commission, after consulting the employer and the workers’ representatives. The Committee notes the Government’s reply, according to which the expression “give rise to a serious economic crisis” set forth in section 43 of the Act is similar to the expression used by the Committee which refers to “strikes which, by reason of their scope and duration, could lead to a national crisis”. The Committee asks the Government to take steps to amend the legislation or adopt a regulatory text that would clarify this point along the lines indicated by the Government. Moreover, with regard to section 48 of the Act, the Government states that intervention is not made in a spirit of interference in the legal exercise of the right to strike, but in a spirit of conciliation of the two parties, and that this intervention only occurs when “required by pressing economic and social needs” and “after consulting the employer and the workers’ representatives”. The Committee reiterates that referral to arbitration to end a collective dispute is only acceptable if it is at the request of both parties and/or 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, or in the case of disputes in the public service involving public servants exercising authority in the name of the State. The Committee therefore urges the Government to amend its legislation in the manner indicated above so as to guarantee in full the right of workers’ organizations to organize their activities and to formulate their programmes without interference by the public authorities, in accordance with Article 3, and to keep it informed of any developments in this regard.