Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee takes note of the Government’s report. It notes with regret however that some provisions of the Labour Code continue to be inconsistent with the Convention despite the comments the Committee has been making for many years.

The Committee notes the comments of 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) referring, inter alia, to the risk for abuse of the right to strike, cases of assault and of violence used against strikers, harassment and intimidation of members of a magistrates’ association and a journalists’ union. The Committee notes the communication of the Government (received during the Committee’s session) which replies to the ICFTU’s comments. The Committee will examine the ICFTU’s comments and the Government’s reply at its next session.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee notes that the Government’s report does not reply to the Committee’s previous comments concerning the determination, in section 242 of the Labour Code, of 16 years as the minimum age for joining a trade union, unless the father or guardian expresses opposition. The Committee reminds the Government that the minimum age for joining a trade union should be the same as the age for admission to employment, and that there should be no requirement for parental authorization. It again asks the Government to take the necessary steps to have section 242 amended accordingly.

Article 3. Right of workers’ organizations to organize their administration and activities. 1. For many years, the Committee has been stressing that to require a base-level union to obtain the approval of the central workers’ confederation before declaring a strike, as required by section 376bis(2) of the Labour Code, is inconsistent with the Convention. The Government indicates in its report that the abovementioned provisions have caused no problems in practice and have prompted no observations or complaints on the part of the central workers’ organization. It adds that central organizations are responsible for approving strikes and are free to incorporate provisions in their statutes or rules specifying the practical arrangements for the strike. The Committee is bound to point out once again that to require by law the prior approval of the central workers’ union is an impediment to the base organizations’ free choice as to exercise of the right to strike. A restriction of this kind can be envisaged only where it is incorporated voluntarily in the statutes of the trade unions concerned and not imposed by law. The Committee urges the Government to take the necessary steps to repeal section 376bis(2) of the Labour Code so as to ensure that  workers’ organizations, irrespective of their level, may organize their activities in full freedom with a view to furthering and defending the interests of their members, in accordance with Article 3 of the Convention.

2. In earlier observations, the Committee noted that: (a) the imposition of the penalties set forth in section 388 of the Labour Code, under which any person who has participated in an unlawful strike is liable to a sentence of imprisonment of from three to eight months and a fine of from 100 to 500 dinars, depends on how serious the court finds the violations to be; (b) under section 387 of the Labour Code, any strike called in breach of the provisions on conciliation and mediation, notice, and mandatory approval by the central organization – see paragraph 1 above – is unlawful; and (c) section 53 of the Penal Code, by allowing the courts to impose a lesser penalty than the minimum established in section 388 or to commute a prison sentence into a fine, fails to secure proportionality of penalties. The Committee observes that in its report, the Government merely reiterates that the nature of the penalty is at the discretion of the court and depends on the seriousness of the violation. The Committee notes with regret that there has been no progress on these matters. It observes that the penalty for participating in an unlawful strike is likely to be disproportionate to the seriousness of the offence, and urges the Government to take the necessary steps to amend sections 387 and 388 of the Labour Code to bring them into line with Article 3 of the Convention.

3. With regard to section 376ter of the Labour Code requiring the notice of strike action to state the duration of the strike, the Committee has pointed out on several occasions that to require workers and their organizations to specify the length of the strike was liable to restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee notes that in reply the Government merely states that the provision in question was discussed in a tripartite committee and that the representatives of the occupational organizations concerned raised no objections. The Committee urges the Government to amend its legislation to ensure that workers’ organizations are not required by law to specify the duration of a strike.

4. With regard to essential services, a list of which is set by decree pursuant to section 381ter of the Labour Code, the Committee again points out that this Article of the Convention allows the prime minister to refer a dispute to arbitration only where it involves an essential service in the strict sense. The Committee requests the Government to indicate whether the abovementioned decree has now been adopted and, if so, to send the list of essential services with its next report.

5. Finally, in its previous comments, the Committee drew the Government’s attention to the need to amend section 251 of the Labour Code under which foreigners are eligible for administrative or executive posts in a trade union provided that they have the approval of the Secretary of State for Youth, Sport and Social Affairs. The Committee notes that, here too, the Government merely states that the requirement has prompted no particular comments from the occupational organizations. The Committee points out once again that to impose such conditions on foreigners amounts to interference by the public authorities in the internal affairs of a trade union, which is inconsistent with Article 3 of the Convention. The Committee urges the Government to take the necessary steps to amend section 251 so as to ensure that workers’ organizations have the right to elect their representatives in full freedom, including from among foreign workers or at least those who have completed a reasonable period of residence in the host country.