Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received in 2013 and 2014, as well as those received on 1 September 2015. The Committee notes that these observations mainly concern legislative issues that have already been raised by the Committee, but also acts of intimidation and threats made through anonymous calls to the Tunisian General Labour Union (UGTT) and its leaders. While noting the reply that the Government provided in 2014 on certain legislative issues, the Committee urges the Government to provide its comments on the serious allegations of threats against the UGTT and to indicate any measures taken to protect its leaders so that the union can carry out its activities without hindrance. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Articles 2 and 3 of the Convention. Legislative amendments. The Committee previously expressed the hope that in the framework of the legislative reforms that were to accompany the adoption of a new Constitution, the issues that had been raised in its comments for many years would be taken into account. The Committee notes that, in its 2014 and 2015 reports, the Government indicates that the new Tunisian Constitution, adopted on 26 January 2014, establishes the right to organize and that it is now exploring the possibility of bringing certain provisions of the Labour Code into conformity with the Convention. In this regard, while noting the explanations provided on certain provisions that had been addressed in its comments, the Committee is bound to remind the Government of the need to amend the following provisions of the Labour Code to give full effect to the Convention.

Right of workers, without distinction whatsoever, to establish and join organizations. The Committee previously requested the Government to take the necessary measures to amend section 242 of the Labour Code, which provides that minors aged 16 years and over may belong to trade unions, if there is no opposition from their parent or guardian. The Committee notes that the Government once again reiterates that the protection put in place is prompted by legal considerations relating to the exercise of authority by the parent or guardian, in accordance with section 93bis of the Code of Obligations and Contracts. The Government also reiterates that section 242 of the Labour Code has not been challenged by the representative organization of workers. The Committee is bound to recall once again that any distinction on the basis of age with regard to trade union membership is contrary to Article 2 of the Convention. The Committee therefore once again requests the Government to take the necessary measures to amend section 242 of the Labour Code to ensure that minors who have reached the statutory minimum age for admission to employment (16 years under section 53 of the Labour Code) are able to exercise their trade union rights without authorization from their parent or guardian.

Right of organizations to elect their representatives in full freedom. The Committee previously requested the Government to take the necessary measures to amend section 251 of the Labour Code so as to guarantee the right of workers’ organizations to elect their representatives in full freedom, including from among foreign workers at least after a reasonable period of residence in the country. It notes the Government’s reiteration that this is by no means a restriction on the right to organize of foreign nationals, who may freely join trade unions and exercise all the related rights. The Government nevertheless confirms that foreign nationals may not hold office in trade unions. The Committee is bound to recall that, in accordance with Article 3 of the Convention, national legislation must allow foreign workers access to the functions of trade union leadership, at least after a reasonable period of residence in the receiving country, and it once again requests the Government to take the necessary measures to amend section 251 of the Labour Code as indicated above.

Right of workers’ organizations to organize their activities and formulate their programmes. The Committee previously requested the Government to take the necessary measures to amend sections 376bis(2), 376ter, 381ter, 387 and 388 of the Labour Code. The Committee notes the Government’s reiteration that the provisions in question are intended to allow employers to be informed of strikes and to engage in conciliation procedures with a view to preventing the dispute, and that the penalties set forth seek to prevent any anarchical recourse to strike action, which might jeopardize the future of the enterprise, the social climate or the interests of the country. With regard to the penalties to which strikers are liable in the event of an illegal strike, the Government indicates that it is for the court to assess the severity of the offences committed and that it has full discretion to hand down a simple fine instead of a prison sentence. The Committee requests the Government to review these provisions in consultation with the social partners concerned with a view to their possible amendment and to report any measures taken in this regard.

With regard to section 376bis(2) of the Labour Code, the Government specifies that during the consultations conducted in 1994 and 1996 on the Labour Code reform, the representative organizations of employers and workers indicated that they wished to maintain this provision which, in their opinion, would allow the umbrella organization to always be informed prior to any strike or lockout, with a view to a more effective settlement of the dispute. The Government adds that the first-level trade unions often insist on the intervention of an umbrella organization to consolidate the exercise of the right to strike. In this regard, the Committee considers it useful to recall that the requirement to obtain the approval of a higher-level trade union organization prior to a strike would not in itself constitute a restriction on the freedom of the trade unions concerned to organize their activities if this requirement was the result of the free choice of the trade unions concerned, for example if it was set out in the statutes of the umbrella organization to which these trade unions freely adhered. However, the Committee is of the opinion that the existence of such a requirement in the national legislation, as in the present case, constitutes a violation of Article 3 of the Convention. The Committee therefore urges the Government to take the necessary measures to amend section 376bis(2) of the Labour Code to bring it into line with the principle recalled above.

With regard to its previous comments on section 381ter of the Labour Code, the Committee notes the Government’s reply indicating that the definition of essential services contained in this section, which takes up that of the ILO supervisory bodies, and the consensual approach used to determine minimum services with the social partners, have always made it possible to avoid the recourse to arbitration that is provided for. The Committee requests the Government to indicate whether the decree provided for by this section of the Labour Code has been adopted.

Right of workers’ organizations to organize their activities and formulate their programmes without interference from the public authorities. With regard to the determination of the representativeness of the trade unions and the development, for this purpose, of objective criteria to determine the representativeness of the social partners in accordance with section 39 of the Labour Code, the Committee notes the information on the technical assistance provided by the Office in this regard, and particularly the organization of a tripartite technical meeting on trade union representativeness held in January 2014. The Committee further notes the Government’s indication that a national tripartite committee chaired by the Minister of Social Affairs has met on several occasions to discuss this issue and that the Office continues to provide assistance through the preparation of a comparative study. The Committee trusts that this technical assistance will promptly lead to the determination, in the framework of inclusive tripartite consultations, of objective criteria for trade union representativeness, and it encourages the Government to continue providing detailed information on this subject.