Interim Report - Report No 396, October 2021

Case No 3210 (Algeria) - Complaint date: 26-APR-16 - Active

Allegations: The complainant organization alleges a campaign of harassment and intimidation of its officers and members by an enterprise in the energy sector, the refusal to implement court decisions in favour of reinstatement for unfairly dismissed workers, as well as the public authorities’ refusal to put an end to these violations of trade union rights

1. 78. The Committee last examined this case (submitted in 2016) at its October–November 2020 meeting, when it presented an interim report to the Governing Body [see 392nd report, approved by the Governing Body at its 340th Session (October–November 2020), paras 178 to 216]. 
2. 79. The Government provided its observations in a communication dated 16 February 2021.
3. 80. Algeria has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 81. In its previous examination of the case, the Committee made the following recommendations [see 392nd report, para. 216]:
   • (a) The Committee expects the Government to take all necessary steps to ensure the execution without further delay of court and labour inspectorate decisions concerning the reinstatement of SNATEG members without loss of pay. The Committee requests that the Government keep it informed of any new developments in this regard.
   • (b) The Committee also expects the Government to take all necessary steps to ensure that outstanding appeals are dealt with without further delay. The Committee requests the Government and the complainant to keep the Committee informed of any new developments regarding the status of the appeals.
   • (c) The Committee, noting with concern the indication that Ms Sarah Benmaiche, like her family, has been subjected to intimidation which has led her to withdraw from trade union action, urges the Government to inform it without delay of her professional situation, in particular whether she has been reinstated by the enterprise. Furthermore, the Committee requests the Government to indicate whether the Supreme Court has handed down its decision in the case of the dismissal of Mr Abdallah Boukhalfa and to clarify his employment situation.
   • (d) The Committee expects the Government to establish a harmonious and stable climate of industrial relations in which trade union leaders can carry out their activities to defend the interests of their members without fear of criminal prosecution and imprisonment.
   • (e) The Committee urges the Government to conduct an independent investigation to determine the circumstances that led to the administrative decision to dissolve SNATEG, despite evidence to the contrary presented to the authorities. Furthermore, the Committee, referring to the recommendations made by the Committee on the Application of Standards of the International Labour Conference in June 2019, expects the Government to review the decision to dissolve SNATEG without delay and urges it to keep the Committee informed of any action taken in this regard.
   • (f) The Committee expects the Government to ensure respect for freedom of association when the police intervenes during peaceful demonstrations.
   • (g) The Committee firmly urges the Government to implement its recommendations without delay in order to ensure an environment in the enterprise in which trade union rights are respected and guaranteed for all trade union organizations, and 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.

B. The Government’s reply

1. 82. The Government provided documented responses to the Committee’s recommendations in a communication dated 16 February 2021. With regard to the reinstatement of SNATEG members following court or labour inspectorate decisions (recommendation a), the Government indicates that the Committee on the Application of Standards of the International Labour Conference cited 86 cases of dismissal and that information on all of these cases was provided to the Committee at the Conference in June 2019, and then in October and November 2019. The Government provides the following information concerning the trade union leaders who, according to the complainant, have still not been reinstated: (i) Mr Abdelkader Kouafi, Secretary-General of the union, was dismissed for abandoning his post and convicted of slander; (ii) the dismissal of Mr Benarfa Wahid, Chairperson of the eastern national committee, was confirmed by the ruling of Tebessa Court in July 2019, and then at appeal; (iii) the dismissal with compensation of Mr Araf Imad, Chairperson of the southern national committee, was confirmed by a decision of the Biskra Court of May 2019; (iv) Mr Djeha Makhfi, Chairperson of the MPVE union section, was dismissed for professional misconduct after appearing before a disciplinary council; he has not brought any action appealing for his reinstatement; (v) the dismissal for professional misconduct of Mr Benhadad Zakaria, member of the national committee, was confirmed by a ruling of the Mila Court in November 2018; (vi) the dismissal for professional misconduct of Mr Slimani Mohamed Amine Zakaria, Chairperson of the national committee for young workers, was confirmed by a ruling of the Mila Court of December 2018; (vii) the dismissal of Mr Chertioua Tarek, Chairperson of the communications committee, was confirmed by a ruling of the Mila Court of November 2018; (viii) the dismissal for professional misconduct of Mr Mekki Mohamed, member of the national committee, was confirmed by a ruling of the El Attaf Court of December 2018; (ix) Mr Guebli Samir, Chairperson of the central national committee, was dismissed for abandoning his post and has not brought any legal action in this regard; (x) the dismissal for abuse of trust of Mr Meziani Moussa, President of the National Federation of Gas and Electricity Distribution Workers, was confirmed by a ruling of the Bouira Court in April 2018, and then at appeal.
2. 83. Regarding the Committee’s recommendations with respect to the situation of Ms Sarah Benmaiche, member of the union’s Women’s Committee, the Government indicates that it appears, from the information provided, that she was dismissed for third-degree professional misconduct (verbal abuse, insults, rude remarks against the hierarchy) after having appeared before a joint commission that hears disciplinary matters in the presence of two representatives of the enterprise and two representatives of the workers. According to the Government, she has not brought any action against the enterprise, and the procedure for assignment to another place of work has not been successful due to her disciplinary history. Finally, with regard to the situation of Mr Abdallah Boukhalfa, the Government indicates that he has been reinstated in his job and is continuing his work at the enterprise.
3. 84. Concerning the allegations by the complainant organization that the majority of the workers reinstated at the enterprise were obliged to resign from membership of SNATEG and join another trade union operating at the enterprise, the Government indicates that labour legislation guarantees workers the freedom to organize themselves in workers’ organizations, and to join or to resign from union organizations, which are voluntary acts.
4. 85. In response to the recommendations concerning the need to establish a harmonious and stable climate of industrial relations in which trade union leaders can carry out their activities to defend the interests of their members without fear of criminal prosecution and imprisonment (recommendation d), the Government states that labour legislation fully guarantees workers and union representatives a calm and peaceful climate that allows them to freely carry out their union activities for the purpose of defending their members’ material and moral interests. In addition, the Government recalls that labour legislation recognizes labour parties and grants them the right to negotiate conditions of work and employment at the level of the enterprise or above. Furthermore, representative trade unions are consulted about economic and social development plans through tripartite and bipartite consultation. Finally, the Government declares that it wishes to examine, with the social partners, how to improve the right to organize, and the means and modalities that would help everyone take on the duties recognized by law.
5. 86. With regard to the Committee’s recommendations concerning the administrative decision to dissolve SNATEG (recommendation e), the Government reiterates that the voluntary dissolution of that union complies with the legal provisions in force and its statutes. According to the official record of the court bailiff dated 7 October 2017, the voluntary dissolution was raised unanimously by the members of the general assembly. The Government recalls that the voluntary dissolution of trade union organizations is established in the provisions of Act No. 90-14 of 2 June 1990 on the arrangements for the right to organize, notably its article 28, which provides that the dissolution of a trade union organization may be voluntary or decided through judicial proceedings, and its article 29, which provides that voluntary dissolution is decided by the members of the trade union organization or their regularly designated delegates and in accordance with the statutory provisions. The Government reiterates that its position is based on the principles of non-interference and recalls that no person may impede the freedom and will of the members of SNATEG to dissolve the union, in accordance with the law and its statutes. The Government questions the insistence of the Committee concerning the voluntary dissolution of SNATEG.
6. 87. Regarding the need to ensure respect for freedom of association when the police intervene during peaceful demonstrations (recommendation f), the Government states that public demonstrations are covered by a legal and regulatory instrument that guarantees demonstrators the exercise of their right to express their opinions, as well as the protection of citizens’ property and freedom. Furthermore, the public authorities have introduced training for law enforcement agents, in addition to their basic training, on respect for the right of citizens to peaceful demonstration. Finally, the Government observes that peaceful demonstrations take place without reports of harm to demonstrators and public road users.
7. 88. In conclusion, the Government declares its determination to resolve all the workers’ cases identified by the Committee, in accordance with labour legislation and regulations. It indicates that it is continuing efforts to strengthen freedom of association and the effectiveness of the provisions that protect against anti-union discrimination and ensure the free functioning of trade union organizations. Finally, the Government is committed to continuing efforts to amend the legal provision regulating labour relations in order to bring it into line with the provisions of international labour Conventions, in particular the provisions of Convention No. 87.

C. The Committee’s conclusions

1. 89. The Committee recalls that the present case concerns allegations that the enterprise SONELGAZ (hereafter, the enterprise) has refused to allow an officially registered trade union to carry out its activities, has undertaken a campaign of harassment against the union’s officers and members, has dismissed the majority of the union’s members, and that the public authorities have refused to put an end to the violations of trade union rights and enforce court rulings in the union’s favour, and have registered the trade union’s dissolution despite evidence to the contrary.
2. 90. In its previous consideration of the case, the Committee referred to a list of union members (members of its National Board, national committees, national federations and trade union branches in the wilayas) who, according to the complainant, were wrongfully dismissed by the enterprise in 2017, but have not been reinstated, despite court or labour inspectorate decisions in their favour. The Committee notes that the Government has provided the following information on the situation of the trade unionists concerned: (i) Mr Kouafi Abdelkader, Secretary-General of SNATEG (the Government had previously declared that he was not a member of staff at the enterprise), was dismissed for abandoning his post (according to the complainant organization, he benefits from the decision of the Blida Court of 19 December 2019 ordering his reinstatement); (ii) the dismissal of Mr Benarfa Wahid, Chairperson of the eastern national committee, was confirmed by a ruling of the Tebessa Court in July 2019, and then at appeal (according to the complainant organization, he benefits from the decision of the Tebessa Court of 31 December 2018 ordering his reinstatement); (iii) the dismissal with compensation of Mr Araf Imad, Chairperson of the southern national committee, was confirmed by a decision of the Biskra Court of May 2019 (according to the complainant organization, he benefits from the decision of the Biskra Court of 17 February 2019 ordering his reinstatement); (iv) Mr Djeha Makhfi, Chairperson of the MPVE union section, was dismissed for professional misconduct after appearing before a disciplinary committee. He has not brought legal action against the dismissal decision (according to the complainant organization, he benefits from the decision of the Constantine Court of 22 January 2019 ordering his reinstatement); (v) the dismissal for professional misconduct of Mr Benhadad Zakaria, member of the national committee, was confirmed by a decision of the Mila Court in November 2018 (according to the complainant organization, he benefits from the decision of the Mila Court of 15 November 2017 ordering his reinstatement); (vi) the dismissal for professional misconduct of Mr Slimani Mohamed Amine Zakaria, Chairperson of the national committee for young workers, was confirmed by a decision of the Mila Court of December 2018 (according to the complainant organization, he benefits from the decision of the Mila Court of 15 November 2017 ordering his reinstatement); (vii) the dismissal of Mr Chertioua Tarek, Chairperson of the communications committee, was confirmed by a ruling of the Mila Court of November 2018 (according to the complainant organization, he benefits from the decision of the Mila Court of 15 November 2017 ordering his reinstatement); (viii) the dismissal for professional misconduct of Mr Mekki Mohamed, member of the national committee, was confirmed by a decision of the El Attaf Court of December 2018; (ix) Mr Guebli Samir, Chairperson of the central national committee, was dismissed for abandoning his post and has not brought legal action against the dismissal decision; (x) the dismissal for abuse of trust of Mr Meziani Moussa, President of the National Federation of Gas and Electricity Distribution Workers, was confirmed by a decision of the Bouira Court in April 2018, and then at appeal; (xi) Ms Sarah Benmaiche, member of the Women’s Committee, was dismissed for professional misconduct and has not brought legal action against the dismissal decision (according to the complainant organization, Ms Benmaiche benefits from a court decision noting harassment against her and ordering her reinstatement, without providing the date of that decision); (xii) Mr Abdallah Boukhalfa has been reinstated in his job.
3. 91. While taking note of this information, the Committee recalls that the complaint originally referred to the leaders and members of the abovementioned trade unions as having benefited from court or labour inspectorate decisions ordering their reinstatement due to wrongful dismissal. The information provided by the Government, however, seems to refer to decisions of courts of the first instance or of appeal that run counter to the unionists’ claims. The Committee possesses divergent information on this matter, and it is difficult for it to establish with certainty the link between the reinstatement decisions to which the complainant organization refers, and which the Committee recalls above, and the decisions confirming dismissals to which the Government refers, all taken between 2018 and 2019. Furthermore, given the summary nature of the decisions provided by the Government, it is difficult for the Committee to observe whether the anti-union nature of these dismissals was taken into account by the courts involved. Given the divergent accounts, at this stage, the Committee must limit itself to requesting the Government to provide additional information on the situation of Kouafi Abdelkader, Benarfa Wahid, Araf Imad, Djeha Makhfi, Benhadad Zakaria, Slimani Mohamed Amine Zakaria, Chertioua Tarek and Sarah Benmaiche, in view of the information on the court decisions ordering their reinstatement, which is not consistent with the statements of the Government. The Committee requests the complainant organizations to inform it, as appropriate, of any recourse against the court decisions mentioned by the Government and their outcome.
4. 92. In addition, noting that the Government’s list does not refer to the situation of Mr Benzine Slimane, President of the National Federation of Security and Prevention Workers, who, according to the complainant organization, has still not been reinstated despite a court decision in his favour, the Committee requests the Government to provide information on his situation.
5. 93. Finally, although it seems that the majority of the cases on dismissal of SNATEG members have been resolved through reinstatement in the workplace, according to the successive lists provided by the Government, the Committee notes with concern that, ultimately, a particularly large number of SNATEG leaders and representatives have been dismissed by the enterprise, and in a context of conflict and harassment. In particular, the Committee wishes to recall that, especially at the initial stages of unionization in a workplace, dismissal of trade union representatives might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1131].
6. 94. In the present case, the Committee deeply deplores the situation of conflict between the enterprise and SNATEG since 2015, the disciplinary measures and mass dismissal of union members in 2017, and the uncertainty associated with different means of recourse against the dismissal decisions, yet also – as the Committee noted in its previous consideration – the numerous complaints brought against SNATEG leaders between 2017 and 2018, in some cases at the initiative of the public authorities themselves, have been detrimental to the conduct of union activities and also constitute intimidation that hinders the free exercise of freedom of association at the enterprise.
7. 95. During its previous consideration of the case, the Committee reviewed in detail the information provided by the complainant organization and the Government, which maintain diverging positions regarding the voluntary dissolution of SNATEG. In this regard, the Committee has noted that the Government maintained that the union’s dissolution was registered in an act of the court bailiff at a general assembly of the union held in October 2017, although the SNATEG statutes provide that its dissolution may only be decided by a national congress. Therefore, the general assembly mentioned by the Government does not appear to have been the competent body to decide to dissolve SNATEG, by virtue of the texts governing the functioning of the union. The Committee has also noted that the administrative authorities have decided to uphold the union’s dissolution, in spite of the records of the congress of SNATEG held in December 2017, at which all delegates from the wilayas voted for the non-dissolution of the union. The Committee asked the Government to conduct an independent inquiry to determine the circumstances that led to the administrative decision recognizing voluntary dissolution of SNATEG, despite evidence to the contrary presented to the authorities. Meanwhile, the Committee, with reference to the recommendations made by the Committee on the Application of Standards in June 2019, indicated that it expected the Government to review the decision to dissolve SNATEG without delay.
8. 96. The Committee notes with deep regret that the Government’s response is limited to reiterating that the voluntary dissolution of SNATEG conforms to the legal provisions in force and to the union’s statutes. According to the official record of the court bailiff dated 7 October 2017, voluntary dissolution was raised unanimously by the members of the general assembly. Furthermore, the Government reaffirms its position, which is based on the principle of non-interference. Noting the Government’s indication that it questions the Committee’s insistence concerning the dissolution of SNATEG, the Committee recalls that its mandate consists of determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions. However, it wishes to point out that the object of the special procedure on freedom of association is not to blame or punish anyone, but rather to engage in a constructive tripartite dialogue to promote respect for union rights in law and practice [see Compilation, paras 5 and 9]. The Committee’s conclusions following consideration of the information provided to it on the issue led it to request that the Government urgently conduct an independent inquiry to determine the circumstances that led to the administrative decision recognizing the voluntary dissolution of SNATEG. The Committee is bound to urgently reiterate its request and expects the Government to review the decision to dissolve SNATEG without delay. The Committee urges the Government to keep it informed of all action taken in this regard.
9. 97. In general, the Committee wishes to express its deep concern about the present case, which is characterized by the cumulative difficulties encountered by SNATEG leaders in the exercise of their legitimate union rights. During its successive examinations of this case, the Committee has noted that these difficulties include a campaign of repression against SNATEG leaders and members, mass dismissals and impunity regarding the enterprise’s refusal to enforce reinstatement decisions, the slow administration of justice, difficulties in applying the law which led to the status of a trade union leader being called into question, interference in trade union activities, judicial harassment, and acts of police violence and intimidation during peaceful demonstrations. These difficulties have harmed the conduct of activities of a legally registered union and also constitute intimidation hindering the free exercise of freedom of association at the enterprise. Consequently, the Committee once again urges the Government to implement its recommendations without delay in order to ensure an environment within the enterprise 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. Furthermore, the Committee encourages the Government to continue to train law enforcement officers on respect for the right of citizens to demonstrate peacefully, in addition to their basic training, and to include in the training the respect for freedom of association.
10. 98. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

The Committee’s recommendations

1. 99. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Given the divergent information provided in this regard, at this stage, the Committee must limit itself to requesting the Government to provide additional information on the situation of Kouafi Abdelkader, Benarfa Wahid, Araf Imad, Djeha Makhfi, Benhadad Zakaria, Slimani Mohamed Amine Zakaria, Chertioua Tarek and Sarah Benmaiche, in view of the information on the court decisions ordering their reinstatement, which is not consistent with the information provided by the Government. The Committee requests the complainant organizations to inform it, as appropriate, of any recourse against the court decisions mentioned by the Government and their outcome.
   • (b) The Committee requests the Government to provide information on the situation of Mr Benzine Slimane, President of the National Federation of Security and Prevention Workers, who, according to the complainant organization, has still not been reinstated despite a court decision in his favour.
   • (c) The Committee is bound to urge the Government once again to conduct an independent inquiry to determine the circumstances that led to the administrative decision to dissolve SNATEG. Furthermore, the Committee expects the Government to review the decision to dissolve SNATEG without delay and urges it to keep the Committee informed of any action taken in that regard.
   • (d) The Committee again firmly urges the Government to implement its recommendations without delay in order to ensure an environment at the enterprise in which trade union rights are respected and guaranteed for all trade union organizations, and 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.
   • (e) The Committee encourages the Government to continue to train law enforcement officers on respect for the right of citizens to demonstrate peacefully, in addition to their basic training, and to include in the training the respect for freedom of association.
   • (f) The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.