Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Algérie (Ratification: 1962)

Autre commentaire sur C087

Observation

Demande directe

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the observations received from the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations received on 29 September and 9 October 2020 of the General and Autonomous Confederation of Workers in Algeria (CGATA) and the National Autonomous Union of Public Administration Personnel (SNAPAP), supported by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) and Public Services International (PSI). The aforementioned organizations complain of the closure of the CGATA headquarters in Algiers, the persecution of hundreds of union members in numerous wilayas, and the arrest, detention and the convictions by the courts against the following trade union delegates: (i) Mr Kaddour Chouicha, Coordinator of the Higher Education Teachers’ Union (SESS); (ii) Ms Lalia Djaddour, Member of the National Committee of Women Workers and National Secretary of SNAPAP; and (iii) Mr Maaza Belkacem, Member of the National Federation of Justice Sector Workers.

The Committee also notes the observations received on 30 September 2020 from the Trade Union Confederation of Productive Workers (COSYFOP), supported by the IUF, PSI and IndustriALL Global Union. COSYFOP complains of the following incidents, which occurred in 2020: (i) the establishment of a clone COSYFOP bureau by a general assembly not attended by representatives of affiliated unions and whose supposedly elected representatives have never been members of the Confederation; (ii) the closure under seal of COSYFOP headquarters on 21 February 2020; (iii) a government campaign against organizations affiliated with COSYFOP; (iv) judicial harassment against the following trade union delegates: Mr Raouf Mellal, President of COSYFOP; Mr Hamza Kherroubi, President of the National Union of Personal-Care Workers (SNAS); Mr Ayoub Merine, President of the National Federation of Social Security Fund Workers; Mr Benzine Slimane, Member of the Board of COSYFOP; Mr Nasser Hamitouche, COSYFOP Delegate, wilaya of Alger; Ms Tym Kadri, President of the Education Sector Staff Federation; Mr Omar Harid, General Secretary of the wilaya of Guelma office of COSYFOP; and Mr Mohamed Essalih Bensdira, President of the COSYFOP National Committee for the Unemployed; (v) the observations submitted by COSYFOP on the draft amendment to Act No. 90-14 were ignored by the Government.

The Committee previously noted the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, relating to legislative matters, most of which are already being examined by the Committee, and denouncing the persistence of violations of the Convention in practice. In particular, the ITUC alleges that the authorities are still making use of discretionary power to refuse the registration of certain unions. The Committee also noted the observations of the International Organisation of Employers (IOE), received on 30 August and 1 September 2019, containing the Employers’ statements made before the 2019 Committee on the Application of Standards of the International Labour Conference. Lastly, the Committee noted the observations of COSYFOP, received on 28 August, 11 October and 13 November 2019 concerning serious obstacles to its freedom to organize its activities and making proposals for the current legislative reform in relation to the application of the Convention.

Given the seriousness of the alleged acts, the Committee urges the Government to provide its comments in reply to the observations which it refers to above, insofar as not already addressed in the Government’s November 2020 reply which the Committee refers to below, and, in particular, to provide detailed information concerning the allegations of closure of union premises and the arrest and conviction of trade union delegates, as well as those of the COSYFOP concerning the difficulties encountered in establishing an affiliated union in an engineering and construction enterprise.

The Committee notes the following information provided by the Government in November 2020 in reply to certain comments: (i) the Government reports on the situation with regard to the registration of trade unions. The Committee refers to this information below; (ii) the Government indicates that the arrest of Mr Chouicha, Coordinator of the SESS, was not linked to his trade union activities but to activities disruptive to public order by the dissemination of destabilizing political pamphlets encouraging civil disobedience; he was subsequently released; (iii) the Government refers to the case of Mr Mellal, President of COSYFOP, recalling a decision handed down by the Supreme Court in October 2019 upholding his dismissal for professional misconduct. According to the Government, Mr Mellal practices a liberal profession and lost his credibility as a trade union representative because of his statements calling for political change by violence. The Committee observes that the professional situation of Mr Mellal was examined by the Committee on Freedom of Association, which made a number of recommendations (see 392nd Report, October 2020, Case No. 3210).

The Committee notes that the high-level mission called for by the Committee on the Application of Standards in June 2018 visited Algiers in May 2019. The mission subsequently submitted a report containing its analysis of the pending issues relating to the application of the Convention, and made recommendations. The Committee notes that the acceptance of the mission and manner in which it took place are a positive signal of the will of the Government to make progress in addressing the issues that have been pending for many years. The Committee has benefited from the information gathered by the mission during the meetings that it held, and from its conclusions and recommendations, all of which contribute to a more empirical understanding of the legal and practical difficulties relating to the exercise of freedom of association in the country.

The Committee notes the discussion in the Conference Committee in June 2019 concerning the application of the Convention by Algeria. The Committee observes that, although the Conference Committee noted positively that the Government had accepted a high-level mission, it nevertheless expressed concern at the persistence of restrictions on the right of workers to establish and join trade union organizations, federations and confederations of their own choosing and the continued absence of tangible progress in bringing the legislation into compliance with the Convention. In its conclusions, the Conference Committee urged the Government to: (i) ensure that the registration of trade unions in law and in practice is in compliance with the Convention; (ii) process pending applications for the registration of free and independent trade unions, which have met the requirements set out by the law, and allow the free formation and functioning of trade unions; (iii) review the decision to dissolve the Autonomous National Union of Electricity and Gas Workers (SNATEGS); (iv) systematically and promptly provide trade union organizations with all necessary and detailed information to enable them to take corrective action or complete additional formalities for their registration; (v) amend section 4 of Act No. 90-14 in order to remove obstacles to the establishment by workers of organizations, federations and confederations of their own choosing, irrespective of the sector to which they belong; (vi) amend section 6 of Act No. 90-14 in order to recognize the right of all workers, without distinction whatsoever, to establish trade unions; (vii) take all appropriate measures to guarantee that, irrespective of trade union affiliation, the right to freedom of association can be exercised in normal conditions with respect for civil liberties and in a climate free of violence, pressure and threats; (viii) ensure impartial investigation and due process rights in order to guarantee the rule of law; (ix) reinstate employees of the Government terminated based on anti-union discrimination, where appropriate; and (x) ensure that the new draft Labour Code is adopted with no further delay and is in compliance with the text of the Convention. The Committee notes that, as requested, the Government subsequently provided in its report detailed information on the action taken on the recommendations of the Conference Committee.

Legislative issues

Amendment of the Act on the exercise of the right to organize and reform of the Labour Code. The Committee recalls that the Government has been referring since 2011 to the process of reforming the Labour Code with a view to responding to the Committee’s concerns relating to the application of the Convention. The Committee notes that the Government informed the high level mission of its intention to take a new initiative to respond rapidly to the comments calling for the amendment of sections 2, 4 and 6 of Act No. 90-14 on the exercise of the right to organize. This new initiative would consist of, during a first stage, revising the provisions referred to above and disassociating these amendments from the broader process of the revision of the whole of the Labour Code, which would be carried out during a second phase. However, the consultation procedures and time schedule remained to be determined. After noting from the meetings with workers’ and employers’ organizations that no discussions or consultations on the draft Labour Code had been held since 2017, the mission recommended the Government to engage without delay in the preparation of draft texts to amend the provisions of Act No. 90-14, in accordance with the Committee’s recommendations, and to pursue the work of bringing the draft Labour Code into conformity with the technical comments provided by the Office in 2015, all in consultation with all of the social partners. In June 2019, the Government confirmed to the Conference Committee that it wishes to update the text revising the Labour Code in light of the amendments proposed by the Office and in consultation with all the economic and social partners.

The Committee notes the supplementary information provided by the Government indicating that the preliminary draft Bill to amend and supplement Act No. 90-14 has been prepared and submitted for their views to 47 workers’ and employers’ organizations and 27 ministerial departments. According to the Government, this preliminary draft Bill amends all the provisions on which the Committee has been commenting. Furthermore, the Government indicates that it was able to benefit from the Office’s technical comments in February 2020 and that the latest version of the preliminary draft Bill takes due account thereof. The Government reports that the draft Bill is currently being discussed by the General Secretariat of the Government with a view to its adoption by the Government Council and then the Council of Ministers, prior to its transmission to Parliament. Furthermore, the Government refers to a new version of the Labour Code which includes the Office’s 2015 comments. It indicates that the new text will be submitted for consultation with the economic and social partners and that the final version will then be submitted to the authorities with competence for its approval and enactment. The Committee welcomes the Government’s indication that its comments have been taken into account in the text to amend Act No. 90-14 and that the new version, as well as the new version of the draft text revising the Labour Code have taken into account the Office’s technical comments. With regard to the amendments to Act No. 90-14, the Committee refers to its comments below. In relation to the Labour Code, the Committee refers to the comments contained in its direct request. The Committee expects that the Government will take all the necessary measures to complete, without delay, the legislative reform called for by the Committee with a view to giving full effect to the provisions of the Convention and that it will rapidly be in a position to report progress in this regard.

Article 2 of the Convention. Right to establish trade union organizations. The Committee recalls that its previous comments related to section 6 of Act No. 90-14, which restricts the right to establish a trade union organization to persons who are originally of Algerian nationality or who acquired Algerian nationality at least ten years earlier. The Committee notes the Government’s indication that the Bill includes an amendment to section 6 which removes the nationality requirement, which will permit foreign workers and employers to establish organizations and, under condition of three years’ residence and in accordance with the terms and conditions established in the statutes, to become members of the executive and administrative bodies of trade unions. The Committee trusts that section 6 of Act No. 90-14 will be amended soon so that the right to establish a trade union organization and to take up positions in the management or administration thereof is recognized for all workers, irrespective of nationality.

Article 5. Right to establish federations and confederations. The Committee recalls its previous comments relating to sections 2 and 4 of Act No. 90 14, which, read jointly, have the effect of restricting the establishment of federations and confederations in an occupation, branch or sector of activity. The Committee previously noted the Government’s indication that section 4 of the Act would be amended to include a definition of federations and confederations. The Committee notes that, in its report, the Government merely indicates that the draft text revising Act No. 90-14 clarifies the concepts of central organizations, federations and confederations with a view to permitting their establishment irrespective of the sectors covered by their member unions. The Committee welcomes the Government’s indication that the most recent amendment to section 4 of the Act will allow trade union organizations to establish federations, unions and confederations irrespective of the occupation, branch or sector to which they belong. The Committee trusts that section 4 of Act No. 90-14 will be amended soon in order to remove any obstacles to the establishment of federations and confederations by workers’ organizations, irrespective of their sector.

Article 3. Restrictions on access to trade union office. Finally, the Committee notes the observation made by the high-level mission concerning the application of section 2 of Act No. 90-14, which could in practice limit the full enjoyment and exercise of freedom of association. According to the mission, the use of the term “salaried employees” in section 2 of Act No. 90-14 could have the consequence in practice of limiting access to trade union office. The discussions held by the mission revealed that the dismissal of a trade union leader (or a founder member of an organization awaiting approval) in a specific enterprise or administrative body resulted in the loss of the status of salaried employee, and consequently de jure of the status of trade union officer under the terms of section 2 of Act No. 90-14. The mission observed that this situation was liable to prejudice the freedom of action of the organization and its right to elect its representatives in full freedom. In this regard, the Committee recalls that it considers that the requirement to belong to an occupation or to an enterprise in order to be able to hold trade union office is a requirement that infringes the right of organizations to draw up their constitutions and to elect their representatives in full freedom. It prevents trade unions from being able to elect qualified persons (such as full-time union officers or pensioners) or deprives them of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. There is also a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 102). In light of the above, the Committee requested the Government to consult the social partners urgently on the measures to be taken to amend the requirements resulting from the application of section 2 of Act No. 90-14 so that trade union office in an enterprise or establishment is no longer restricted to persons employed by the enterprise or establishment, or to remove the requirement to belong to the occupation or to be an employee for at least a reasonable proportion of trade union officers. In the supplementary information provided, the Government indicates that genuine representation of workers before the employer, particularly through the union branch, which is democratically elected by members, is valuable not only because of its experience in the enterprise in question but also because it is familiar with the organization and culture of the enterprise. According to the Government, the definition of the term “worker” is linked with the matter of remuneration, paid in exchange for the effort made by the worker. This definition creates an employment relationship and a legal bond giving rise to rights and obligations for both parties to the employment relationship. Lastly, recalling that no trade union organization has raised the question of trade union representation, the Government indicates that the matter of the appointment by trade union organizations of persons from outside “employer bodies” could be envisaged under certain conditions and that a consultation on that issue will be held with the social and economic partners. The Committee expects that the Government will initiate without delay consultations with the social partners with regard to the granting of authorization for trade union representation to persons from outside the enterprise or establishment. It recalls the need to amend the requirements resulting from the application of section 2 of Act No. 90-14 so that trade union office in an enterprise or establishment is no longer restricted to persons employed by the enterprise or establishment in question, or to remove the requirement to belong to the occupation or to be an employee for at least a reasonable proportion of trade union officers.

Registration of trade unions in practice

The Committee recalls that it has been commenting for many years on the issue of the particularly long delays, sometimes amounting to several years, in the processing of applications for the registration of trade unions or the refusal by the authorities to register certain independent trade unions without giving reasons.

The Committee notes that the Government informed the high-level mission, as well as the Conference Committee, of the recent initiative by the Ministry of Labour to update the files on the establishment of unions and to invite organizations which wish to register or for which the applications are under examination to meet with the Ministry to bring up to date the administrative documents, and particularly those relating to their occupational situation. According to the Government’s report and the supplementary information provided, this initiative resulted in the registration of 138 representative organizations (91 workers’ organizations and 47 employers’ organizations) by the month of March 2020.

The Committee also notes the following information provided by the Government concerning the registration of unions referred to in its previous comments: (i) the Autonomous National Union of Cleaning and Sanitation Workers (SNATNA) and the National Union of Mobilis Workers (SNTM) have been registered; (ii) the Autonomous Algerian Union of Transport Workers (SAATT) and the Autonomous Union of Attorneys of Algeria (SAAVA) have not yet responded to the communications from the Ministry requesting them to update their applications for registration. Efforts by the public authorities to contact these unions have been unsuccessful; (iii) the Government reports that the Higher Education Teachers Solidarity Union (SESS) was registered in February 2020; (iv) the processing of the files for the establishment of the Autonomous National Union of Paper and Packaging Manufacture and Transformation Workers (SNATFTPE), the Autonomous National Union of Wood and Derivative Manufacturing Workers (SNATMBD) and the Autonomous National Union of EUREST Workers of Algeria (SNATE) are the territorial responsibility of the wilaya or commune. According to the Government, efforts by the public authorities to contact these unions have been unsuccessful; (v) the file for the establishment of the Algerian Union of Employees of the Public Administration (SAFAP) is pending due to a dispute concerning a disagreement between the founding members relating to the presidency of the organization; a conciliation attempt is under way, however, and the Government will keep the Office informed on progress in this case; (vi) the Government reiterates that the General and Autonomous Confederation of Workers of Algeria (CGATA) has not provided documents concerning its establishment in accordance with the provisions of the Act as it is not composed of any legally established union, as required by the law, which requires any confederation to be established by a group of legally registered or established unions; and (vii) according to the Government, persons unrelated to the Trade Union Confederation of Productive Workers (COSYFOP) obtained possession of the registration receipt of the organization without the presence of any member or affiliate. However, the Government admits that the COSYFOP is composed of three legally constituted unions.

The Government adds that, to give effect to the recommendations of the Conference Committee, exchanges of communications and meetings with the representatives of unions seeking registration are now recorded in reports co-signed by the applicants. Finally, the Government indicates that it is currently engaged in the preparation of a manual on the procedures for the registration of unions.

The Committee welcomes the follow-up information provided by the Government and requests it to continue providing updated information on the processing of applications for the registration of trade unions. The Committee refers below to the specific situation of certain unions.

The Committee notes the points indicated below that the high-level mission raised concerning the registration of unions and which it considers to be particularly pertinent. In the first place, the mission observed that the legislative provisions setting out the conditions for the establishment of federations and confederations of unions covering different sectors appear to be interpreted in an inconsistent and very restrictive manner according to the organizations concerned. The mission accordingly noted the case of a confederation that was not provided with a receipt on the grounds that it groups together affiliates from several sectors while, in another case, it noted the registration of an employers’ organization in February 2019 which has affiliates from four different sectors. The mission was also informed of the case of a trade union confederation with affiliates in several sectors. The mission therefore recommended that the Government adopt a consistent position in practice and to accept the possibility for organizations to be composed of affiliates from different occupations, branches and sectors, in line with the Committee’s comments concerning the application of sections 2 and 4 of Act No. 90-14. The mission also therefore requested that the Government register any organizations in this situation which apply for registration. The Committee also notes that the mission observed inconsistencies in the content of the communications denying registration. In most cases, the administration’s communication merely indicates that “the application to certify the establishment of the organization does not meet the conditions set out by Act No. 90-14 of 2 June 1990 on the exercise of the right to organize and it requests the applicant to abide by that Act”, without other comments. The mission therefore encouraged the Government to systematically and rapidly provide the organizations with all the necessary information to enable them to take corrective measures or to fulfil additional formalities for their registration.

In general, while welcoming the efforts made by the Government to clarify the manner in which the administration processes applications for the registration of unions, the Committee is nevertheless concerned by the fact that the registration of most of the federations and unions referred to in its comments, and particularly the CGATA, SAAVA and SAATT, remain pending. The Committee also notes the explanations provided on the denial of registration by the administration for the Confederation of Algerian Unions (CSA), COSYFOP and SAFAP, the representatives of which were able to meet with the high-level mission. The Committee notes that, taking into account the information provided both by the organizations themselves and by the authorities, the mission recommended the Government to proceed on an urgent basis with the registration of the CGATA, CSA and SAFAP.

The Committee notes with regret that the Government confines itself essentially to providing in its report and the supplementary information provided in 2020 the same explanations that it had previously furnished on the rejection of the applications for registration in the case of the organizations referred to above, most of which are based on a reading of the legislative provisions which, as recalled above by the Committee, are not in conformity with the Convention. The Government should also take into account the process of the amendment of these provisions which it has commenced in order to give effect to the Convention. The Committee therefore expects that the Government will take due account of the elements recalled above in reconsidering on an urgent basis the applications for the registration of the CGATA, CSA and COSYFOP. It also refers to the recommendations of the high-level mission and calls on the Government to register the SAFAP as soon as the internal dispute to which it refers is resolved. It expects the Government to be able to report, without further delay, tangible progress in the positive processing of these applications for registration which, in certain cases, have been pending for several years. The Committee also once again encourages the Government to provide systematically and rapidly to the organizations for which registration is denied by the administration all the necessary information to enable them to take corrective measures and to fulfil the additional formalities required for their registration.

With regard to the situation of the Autonomous National Union of Electricity and Gas Workers (SNATEG), the observations of which, received in July 2018, reported numerous obstacles to its freedom to organize its activities, the Committee recalls that SNATEG presented a complaint to the Committee on Freedom of Association, which once again ruled on the merits of the case (see 392nd Report, October 2020, Case No. 3210) and formulated recommendations including calling on the Government to conduct an independent investigation to determine the circumstances that led to the administrative decision recognizing voluntary dissolution of SNATEG, despite evidence presented by the union that no such voluntary dissolution had occurred. Referring to the recommendations made by the Conference Committee in June 2019, the Committee on Freedom of Association requested the Government to review the decision to dissolve SNATEG without delay. Lastly, that Committee urged the Government to implement its recommendations without delay in order to ensure an environment in the industrial energy enterprise concerned in which trade union rights are respected and guaranteed for all trade union organizations, and in which workers are able to join the union of their choice, elect their representatives and exercise their trade union rights without fear of reprisals and intimidation. The Committee requests the Government to indicate the measures taken to give effect to the recommendations of the Committee on Freedom of Association in this regard.

In general, in view of the measures that it is taking to address the legal and practical issues raised in relation to the implementation of the Convention, the Committee trusts that the Government will continue to avail itself of the technical assistance of the Office.

The Committee is raising other matters in a request addressed directly to the Government that reiterates the content of its direct request adopted in 2019.

[The Government is asked to reply in full to the present comments in 2022.]