Informe provisional - Informe núm. 370, Octubre 2013

Caso núm. 2994 (Túnez) - Fecha de presentación de la queja:: 04-JUN-12 - Cerrado

Allegations: The complainant organization denounces acts of interference in its internal affairs, the withholding of the dues paid by its members and its exclusion from tripartite consultations held with a view to drawing up a national social contract. Furthermore, it denounces acts of anti-union discrimination carried out against its members by the airline TUNIS AIR

1. 721. The complaint is contained in a communication from the Tunisian General Confederation of Labour (CGTT) dated 4 June 2012.
2. 722. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case twice. At its June 2013 meeting [see 368th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 723. Tunisia 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. The complainant’s allegations

1. 724. In a communication dated 4 June 2012, the CGTT indicates that, although the legal recognition of the organization was obtained on 1 February 2011, the majority of its affiliated trade unions are being denied their right to carry out their activities freely in enterprises. The complainant regrets that, despite the fact that Tunisia has ratified Convention No. 135, the authorities have not yet issued a decree allowing the free exercise of trade union rights in enterprises and, in particular, recognizing trade union pluralism with a view to protecting all workers’ representatives. The complainant also denounces the anti-union violence to which many activists have fallen victim in all economic sectors (health, banking, transport, energy etc.). The complainant regrets that the labour inspection services are unable to ensure respect for trade union rights in enterprises.
2. 725. By way of an example of the anti-union acts to which activists are subjected, the complainant refers to the situation within the national airline, TUNIS AIR. In accordance with the legislation in force, the CGTT had given notice of strike action for 22 and 23 May 2012 a fortnight before the strike was due to begin, despite the fact that article 376bis of the Labour Code requires a minimum of ten days’ notice. The authorities ignored the notice of strike action, which constitutes a violation of article 380 of the Labour Code, which requires them to convene the Central Conciliation Committee in order to find an amicable solution to the collective conflict that has given rise to the notice of strike action. The situation subsequently escalated and the strike lasted until 24 May 2012. According to the complainant, the strike was denounced in the national media by both the leadership of the airline and by the Minister for Social Affairs. Leaders of the CGTT were suspended and had legal proceedings initiated against them. The following leaders were affected: Belgacem Aouina, Adnane Jemaiel, Faouzi Belam, Imed Hannachi, Walid Ben Abdellatif and Nabil Ayed. Furthermore, the complainant alleges that it is the target of a media smear campaign.
3. 726. Moreover, the complainant denounces the Government’s refusal to establish objective criteria for trade union representativeness at the enterprise, sectoral and national levels, which runs counter to the provisions of the Labour Code. In this connection, the complainant recalls that, according to article 39 of the Labour Code, which refers to collective agreements, “in the event of a conflict over the representativeness of one or more organizations, a decree from the Minister for Social Affairs, issued following consultations with the National Social Dialogue Committee, shall determine which of these organizations ...”. However, according to the complainant, the Committee referred to in article 335 of the Labour Code never met.
4. 727. The complainant denounces the fact that the Government is prepared to use this situation to justify the exclusivity of the representativeness of another umbrella organization, namely the Tunisian General Labour Union (UGTT), during tripartite consultations. The complainant, which claims to suffer as a result of this situation, is of the opinion that the National Social Dialogue Committee would be the appropriate forum for addressing the new situation of trade union pluralism, which has been a reality since Spring 2011. By way of an example of its exclusion from all tripartite consultations, the CGTT denounces its exclusion from the national consultations organized by the Ministry of Social Affairs with a view to drawing up a national social contract, which was signed in January 2013.
5. 728. Lastly, the complainant denounces serious acts of interference in its affairs. Recalling that the principles of freedom of association require the public authorities to exercise restraint when it comes to the internal workings of trade unions, the complainant regrets that the Government, acting through the Minister for Social Affairs, saw fit to intervene in the national media to enquire about the situation inside the CGTT by making insinuations about how many members it actually had and by mentioning a possible case before the courts. Furthermore, the complainant states that the union dues of its members in the public sector for the year 2012 have been withheld for no apparent reason, despite the fact that it received the dues for the year 2011 by virtue of a circular from the Prime Minister dated 13 August 2011. In addition, the CGTT has still not received the sum to which it is entitled from the Public Fund for Economic Development, like the other trade union and employers’ organizations.

B. The Committee’s conclusions

1. 729. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case. The Committee urges the Government to be more cooperative in the future.
2. 730. Under these circumstances, in accordance with the applicable rule of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to submit a report on the substance of the case without the information it hoped to receive from the Government.
3. 731. The Committee reminds the Government that the purpose of the whole procedure established by the ILO for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them [see First Report of the Committee, para. 31].
4. 732. The Committee notes that, in the present case, the allegations made by the complainant, the CGTT, refer to acts of interference in its affairs carried out by the authorities; to its exclusion from all national tripartite consultations; and to the anti-union acts committed by certain enterprises against its leaders without these being punished by the labour inspection authorities.
5. 733. Firstly, the Committee notes that the last case it examined concerning Tunisia in March 2010 also mentioned the situation of the CGTT and, in particular, the authorities’ refusal to register it [see 356th Report, Case No. 2672, paras 1263–1280]. On that occasion, while regretting the time that had elapsed since the submission of the initial request for registration, the Committee had requested the authorities to recognize the legal personality of the CGTT quickly, as soon as it had completed the formalities prescribed in the Labour Code. The Committee had also requested the Government to keep it informed of developments in the process of setting objective and pre-established criteria for determining the representativeness of the social partners in accordance with article 39 of the Labour Code, which was supposedly under way. The Committee notes with regret that the CGTT still seems to face difficulties in carrying out its trade union activities, despite the fact that it was registered more than two years ago.
6. 734. The Committee notes that, according to the complainant, despite the fact that it obtained legal recognition in February 2011, the majority of its affiliated trade unions are being denied their right to carry out their activities freely in enterprises. The Committee notes with concern the general allegations concerning the anti-union violence to which many activists have allegedly fallen victim in all economic sectors (health, banking, transport, energy etc.). It takes particular note of the situation that arose within the national airline, TUNIS AIR, where, following the submission of a notice of strike action, which, in violation of the Labour Code, was ignored, despite the fact that article 380 of the Labour Code requires the public authorities to assemble the Central Conciliation Committee in order to find an amicable solution to the collective conflict that has given rise to the notice of strike action, the strike that took place was allegedly denounced in the national media by both the leadership of the airline and by the authorities. Leaders of the CGTT, namely Belgacem Aouina, Adnane Jemaiel, Faouzi Belam, Imed Hannachi, Walid Ben Abdellatif and Nabil Ayed, were allegedly suspended and had legal proceedings initiated against them.
7. 735. The Committee wishes to recall that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests, and that no one should be penalized for carrying out or attempting to carry out a legitimate strike. In that regard, the responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 521, 628 and 660]. The Committee requests the Government to send its observations on the strike that took place from 22 to 24 May 2012 in the company TUNIS AIR without delay; to indicate, in particular, the reasons for the suspension of the leaders of the CGTT following the strike; and to report on the situation regarding the legal proceedings initiated and, in particular, on any decisions taken in these cases.
8. 736. The Committee also notes with concern the allegations made by the complainant concerning acts of interference in its affairs, in particular the statements made by the Government in the national media concerning the situation inside the CGTT. In this regard, the Committee is of the opinion that the right of organizations to carry out their activities freely and to formulate their programmes requires the public authorities to refrain from commenting on or intervening in the workings of these organizations, which is in the interests of the normal development of the trade union movement and harmonious professional relations.
9. 737. Taking note of the complainant’s allegations concerning the union dues of its members in the public sector for the year 2012, which, for no apparent reason, they allegedly never received, despite the fact that it had received the dues for the year 2011 by virtue of a circular from the Prime Minister dated 13 August 2011, the Committee requests the Government to send its observations on that matter without delay. On that point, the Committee recalls that it considers that the dues deducted from the wages of public officials do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay [see Digest, op. cit., para. 479].
10. 738. Lastly, the Committee notes with concern that, according to the complainant’s allegations, the Government has still not established objective criteria for trade union representativeness at the enterprise, sectoral and national levels. The complainant, which claims to suffer as a result of this situation, denounces the fact that this situation has led to its exclusion from the national consultations organized by the Ministry of Social Affairs with a view to drawing up a national social contract, which was signed in January 2013. The Committee recalls that it is not called upon to rule on the representativeness of a given trade union structure, be it at the enterprise, sectoral or national level. However, the Committee is of the opinion that it is important for the determination of the representativeness of trade unions for the purposes of collective bargaining at all levels to be based on objective and pre-established criteria, so as to avoid any opportunity for partiality or abuse. The Committee recalls that, in a previous case examined in March 2010, it had already requested the Government to take all necessary measures to set these criteria in consultation with the social partners. The Committee notes with concern that no progress seems to have been made in that regard. The Committee finds itself obliged to reiterate its previous recommendation and to request the Government to keep it informed of any developments in that regard. The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.

The Committee’s recommendations

1. 739. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case. The Committee urges the Government to be more cooperative in the future.
   • (b) The Committee requests the Government to send its observations on the strike that took place from 22 to 24 May 2012 in the company TUNIS AIR without delay; to indicate, in particular, the reasons for the suspension of the leaders of the CGTT following the strike (namely Belgacem Aouina, Adnane Jemaiel, Faouzi Belam, Imed Hannachi, Walid Ben Abdellatif and Nabil Ayed); and to report on the situation regarding the legal proceedings initiated and, in particular, on any decisions taken in these cases.
   • (c) The Committee requests the Government to send, without delay, its observations on the allegations made by the CGTT concerning the union dues of its members in the public sector for the year 2012, which they allegedly never received.
   • (d) Recalling that it is important for the determination of the representativeness of trade unions for the purposes of collective bargaining at all levels to be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse, the Committee finds itself obliged to reiterate the recommendation that it made in 2010 in a previous case, which requested the Government to take all necessary measures to set these criteria in consultation with the social partners, and to keep it informed of any developments in that regard. The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.