Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee. It also notes the comments from the International Trade Union Confederation (ITUC) dated 31 July 2012, referring to issues of a legislative nature already raised by the Committee, as well as to infringements of trade union rights in practice, specifically obstacles to journalists’ trade union activities. The Committee requests the Government to provide its observations in reply to the ITUC’s comments.

In its last observation, the Committee noted the election of a Constituent Assembly on 23 October 2011, with the mandate, inter alia, to draw up a new Constitution, and hoped that, as part of the legislative reform movement that should accompany the adoption of a new Constitution, the issues which had been the subject of its comments for many years would be taken into account. In this respect, the Committee notes with regret that the Government does not refer in its report to the progress made in amending the legislation. It therefore feels bound to reiterate the comments it has been making for a number of years.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. As regards the request for information concerning the way in which the Government ensures that magistrates enjoy the guarantees afforded by the Convention, the Committee notes that, according to the Government, magistrates established an independent trade union grouping more than 1,200 magistrates within the judiciary on 18 March 2011; the magistrates of administrative courts have initiated a process to establish their own trade union.

As regards its request concerning the need to amend section 242 of the Labour Code, which stipulates that minors aged 16 years and over may belong to trade unions, if there is no opposition from their father or guardian, the Committee notes the Government’s statement that, as the age of majority was reduced from 20 to 18 years in 2010, this is only an issue for minors aged between 16 and 18 years; the protection put in place is prompted by legal considerations connected to the parent’s or guardian’s exercise of authority in accordance with section 93bis of the Code of obligations and contracts. The Government also points out that the provisions of section 242 of the Labour Code have not given rise to any objections or problems in practice. Recalling the need to guarantee that minors having reached the statutory minimum age for employment (16 years according to section 53 of the Labour Code) should be able to exercise their trade union rights without authorization from their parent or guardian, the Committee urges the Government to amend section 242 of the Labour Code in this respect.

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes without interference from the public authorities. As regards the question of determining the representativeness of trade unions in the higher education sector, the Committee notes that, in the context of Case No. 2592 of the Committee on Freedom of Association (358th Report), the Government stated that it had taken steps to develop objective criteria to determine the representativeness of the social partners pursuant to section 39 of the Labour Code. The Government had indicated that in the event of disputes concerning trade union representativeness, it was the number of members which determined representativeness for the purposes of collective bargaining in the absence of pre established criteria. The Committee requests the Government to provide information on the steps it states it has taken and their outcome.

Right of organizations to elect their representatives in full freedom. As regards its observation on the need to amend section 251 of the Labour Code so as to guarantee 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 Committee notes the Government’s indication that section 263 of the Labour Code enshrines the principle of equal treatment between foreign and national workers and that approval by the public authorities of the appointment or election of foreign workers to an administrative or managerial position within a trade union is merely an administrative control of their eligibility, ascertaining that the foreign worker has lived for a reasonable length of time in the country. The Government points out, moreover, that there has never been recourse to this requirement and that the employers’ and workers’ organizations have never made comments concerning its application. Notwithstanding this fact, the Committee feels bound to request the Government once again to amend section 251 of the Labour Code to ensure that the principle recalled above be respected both in law and in practice.

Right of workers’ organizations to organize their activities and formulate their programmes. The Committee recalls that it has been making comments for a number of years on certain restrictions to the right to strike, which include: approval of the central workers’ confederation before declaring a strike (section 376bis(2) of the Labour Code); compulsory indication of the duration of the strike in the strike notification (section 376ter of the Labour Code); determination of the list of essential services by decree (section 381ter of the Labour Code); and the possibility of imposing penalties in the event of an unlawful strike (sections 387–388 of the Labour Code). The Committee notes the Government’s statement in its report to the effect that: section 376bis(2) of the Labour Code does not raise any problems in practice and the workers’ organizations have not made any observations on its application; no time limits are established in section 376ter of the Labour Code, and the organizers of the strike are entirely free to choose the duration of the strike and to continue it as they wish; the decree referred to in the last paragraph of section 381ter has not yet been adopted; the imposition of penalties provided for under section 388 of the Labour Code is contingent upon the court’s assessment and the level of severity of the offences. The Committee requests the Government to take the necessary measures in the near future to amend these sections of the Labour Code to guarantee respect of the principles of freedom of association to which it has been referring for many years.

The Committee requests the Government to provide information in its next report on progress made in amending the legislation. It reminds the Government that it may avail itself of technical assistance from the Office with regard to these issues.