Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Tunisia (Ratification: 1957)

The Committee notes the comments dated 4 August 2011 from the International Trade Union Confederation (ITUC) concerning the application of the Convention.

The Committee is also informed of the establishment of the Tunisian General Confederation of Labour (CGTT), for which it had been requesting recognition, as did the Committee on Freedom of Association (Case No. 2672), for several years.

The Committee also notes that a constituent assembly was elected on 23 October 2011 with the mandate, inter alia, to draw up a new Constitution. In this context, the Committee hopes that, as part of the legislative reform movement which should accompany the adoption of a new Constitution, the issues which have been the subject of its comments for many years will be taken into account in order to ensure that the Tunisian legislation is in full conformity with the Convention.

In this regard, the Committee recalls that these questions concerned the following points.

Article 2 of the Convention:

• -the need to ensure that magistrates enjoy the guarantees afforded by the Convention;
• -the need to amend section 242 of the Labour Code in order to guarantee that the minimum age for joining a trade union is the same as the age for admission to employment as determined in the Labour Code (16 years in accordance with section 53 of the Labour Code).

Article 3:

• -the question of determining the representativeness of trade unions in the higher education sector;
• -the need to amend section 251 of the Labour Code so as to ensure that workers’ organizations have the right to elect their representatives in full freedom, including from among foreign workers, at least after a reasonable period of residence in the country;
• -the need to repeal section 376bis of the Labour Code so as to guarantee that workers’ organizations, irrespective of their level, can organize their activities in full freedom with a view to furthering and defending the interests of their members;
• -the need to amend section 376ter of the Labour Code so as to remove any legal requirement to specify the duration of a strike so as to guarantee that workers’ organizations can call a strike of unlimited duration if they so wish;
• -the possibility of deleting the last subsection of section 381ter of the Labour Code, which provides that the list of essential services shall be fixed by decree; the Committee considers that it would not be desirable – or even possible – to attempt to draw up a complete and fixed list of services which can be considered as essential (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159);
• -the need to amend section 387 of the Labour Code taking account of the principle whereby sanctions for strike action should be possible only where the prohibitions breached are in conformity with the Convention (see General Survey, op. cit., paragraph 177); however, the requirement to obtain the approval of the trade union federation before declaring a strike, under the terms of section 376bis of the Labour Code, is not in conformity with Article 3 of the Convention;
• -the need to review the penalties laid down by section 388 of the Labour Code, under which any person who has participated in an unlawful strike is liable to a sentence of imprisonment; in this regard, the Committee recalls that no criminal penalty should be imposed against a worker for having carried out a peaceful strike and, therefore, measures of imprisonment should not be imposed on any account; that such penalties can be envisaged only where, during a strike, violence against persons or property or other serious criminal offences of rights have been committed, and can be imposed pursuant to legislation punishing such acts, especially the Penal Code.

The Committee requests the Government to provide information in its next report on progress made with regard to bringing the national legislation, especially the Labour Code, into conformity with the provisions of the Convention. It reminds the Government that it may avail itself of technical assistance from the Office with regard to these issues.