Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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 on 1 September 2018. It requests the Government to respond in this respect. Recalling the serious allegations previously received from the ITUC concerning intimidation and threats made through anonymous calls to the Tunisian General Labour Union (UGTT) and its leaders, and in the absence of a reply on this matter, the Committee urges the Government to indicate without delay any investigation launched and any measures taken for the protection of the UGTT leaders so that the trade union can conduct its activities without any obstacles.

Articles 2 and 3 of the Convention. Legislative amendments. In its previous comments, the Committee noted the Government’s indication that it was exploring the possibility of bringing certain provisions of the Labour Code into conformity with the Convention, as requested by the Committee. In this regard, the Committee notes with regret that the Government essentially provides explanations already supplied in its previous reports in response to the recommendations to make amendments. The Committee is therefore bound to reiterate its recommendations and urges the Government to take all the necessary steps in this regard 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 only prompted by legal considerations relating to the exercise of authority by the parent or guardian, in accordance with section 93 bis of the Code of Obligations and Contracts. The Government 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 involving parental consent with regard to trade union membership when minors have attained the age of employment 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 host country, and it once again requests the Government to take the necessary steps 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 asked the Government to amend sections 376 bis(2), 376 ter, 381 ter, 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 avoid any anarchical recourse to strike action, which might jeopardize the future of the enterprise, the social climate or the interests of the country. As regards 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 seriousness 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 provide information on any measures taken in this regard.

With regard to section 376 bis(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 constitution 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 steps to amend section 376 bis(2) of the Labour Code to bring it into line with the principle recalled above.

With regard to its previous comments on section 381 ter 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, has always made it possible to avoid the recourse to arbitration that is provided for. The Committee once again 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. The Committee notes the adoption of Act No. 2017-54 of 24 July 2017 establishing the National Council for Social Dialogue and its mandate and mode of operation. The Committee also notes the Government’s indication that, in order to facilitate the nomination of the members of the Council, the Ministry of Labour is taking steps towards adopting a decree establishing criteria for trade union representativeness at the national level. These criteria include: (i) the number of union members up to the end of 2017; (ii) the date of the last electoral congress; (iii) the sectoral structures and their nature; and (iv) the local and regional structures. The Government adds that it will inform the Office of the adoption of this decree, which will make it possible to designate the most representative organization at the national level which will be represented within the National Council for Social Dialogue. While noting this tangible progress towards determining criteria for trade union representativeness which it has been requesting the Government to do for a number of years, the Committee nevertheless emphasizes that its comments also emphasized the need for the Government to engage in inclusive tripartite consultations in this regard, namely in a context which encompasses all the organizations concerned by this issue. The Committee also notes that, under section 8 of Act No. 2017-54, the general assembly of the Council is composed of an equal number of representatives from the Government, the most representative workers’ and employers’ organizations in both the agricultural and non-agricultural sectors. The Committee understands this to mean that social partnerships will involve most representative trade unions and organizations of employers in the country, according to the results of elections to be held on the basis of the criteria for representativeness adopted in the government decree. The Committee requests the Government to provide details of any new developments in this regard, to indicate the tripartite consultations held regarding the criteria for representativeness, to send a copy of the government decree when it has been adopted, and to provide information, if applicable, on the composition of the National Council for Social Dialogue.