Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 367, Mars 2013

1. 113. The complaints are contained in communications from the Higher Education Teachers’ Union (SESS) dated 20 March 2012, from the National Autonomous Union of Public Administration Staff (SNAPAP) dated 5 July 2012, from the National Autonomous Union of Workers of the SONELGAZ Group and from the National Autonomous Union of Postal Workers (SNATP) dated 29 August and 11 November 2012.
2. 114. The Government sent partial observations in communications dated 21 August 2012, 27 February and 13 March 2013.
3. 115. 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. The complainants’ allegations

1. 116. In a communication dated 20 March 2012, the SESS denounces the authorities’ systematic practice of refusing to register the trade union organizations on the grounds of the non conformity of the statutes they submitted. The complainant indicates that, on 19 January 2012, it submitted an application stating its intention to establish a trade union organization as required by Algerian legislation, notably Act No. 90-14 of 2 June 1990, which sets out the modalities for the exercise of trade union rights. According to the complainant, the Government’s reply was received more than a month after the application for registration had been submitted. The SESS explains that the reply, which was dated 16 February 2012, while the envelope accompanying it was stamped 5 March 2012 (in other words, after the deadline of one month specified in the law), indicated that “an examination of the trade union’s statutes shows that they are inconsistent with the provisions of Act No. 90-14 of 2 June 1990, as amended and supplemented, which sets out the modalities for the exercise of trade union rights. In view of this fact, I invite you to align your statutes with this law.” The complainant points out that the content of this reply is the same, down to the letter, as the reply sent to the other trade union organizations that had also submitted an application. This demonstrates that the authorities systematically refuse to register trade union organizations on the grounds of the non-conformity of their statutes.
2. 117. Furthermore, the complainant is surprised by the fact that the letter from the administration was sent to the home of the national coordinator of the organization when the latter has its own address, as specified in its statutes.
3. 118. In communications dated 5 July 2012 and 27 February 2013, the SNAPAP associates itself with the complaint by explaining its own situation. The complainant also refers to the process for renewing its leadership, which allegedly took place in accordance with the legislation in force and under the supervision of a bailiff. The SNAPAP mentions organizing five regional conferences (in Alger, Bejaia, Laghouat, Oran and Oum el Bouaghi) between December 2010 and June 2011. Following these regional conferences, the SNAPAP’s fifth national conference was held on 29 and 30 December 2011. These activities were overseen by a bailiff appointed through an order issued by the presidents of the courts of the five regions. At the conclusion of these activities, a dossier containing all the relevant legal documents was submitted by the bailiff to the Ministry of Labour and Social Security, which acknowledged receipt thereof. According to the complainant, no reply from the Government was ever received, which in theory, means that by law, the conference and the decisions taken at its conclusion are considered to be legal.
4. 119. In communications dated 29 August 2012, the National Autonomous Union of Workers of the SONELGAZ Group and the SNATP denounce the authorities’ lack of reply more than one month after the bailiff submitted their respective dossiers stating their intention to establish a trade union on 14 June 2012. In communications dated 11 November 2012, the complainants indicate that they received a letter from the Ministry of Labour and Social Security dated 13 September 2012, requesting them to complete their dossier and to contact the Ministry to receive comments and observations on the statutes they had submitted. Moreover, that letter reportedly mentioned previous letters dated 31 July 2012, which corresponds to the deadline by which the Ministry had to provide a reply, that were never received. The National Autonomous Union of Workers of the SONELGAZ Group states that it complied with the request and provided the additional documents on 15 October 2012.
5. 120. All the complainants consider these recurrent difficulties in the registration process to be a clear indication of the Government’s opposition to the establishment of new trade unions, which constitutes a violation of Convention No. 87.

B. The Government’s reply

1. 121. In communications dated 21 August 2012 and 27 February 2013, the Government provides explanations concerning the application for registration submitted by the SESS. It indicates that the reply to the SESS’s application was sent to the organization on 16 February 2012, by the deadline specified in the law. The Government indicates that Act No. 90-14 of 2 June 1990, which sets out the modalities for the exercise of trade union rights, and, in particular, section 21 thereof, lays down certain requirements for the statutes of trade union organizations that must be met, failing which they will be null and void.
2. 122. In the case of the SESS, the Government indicates that an examination of the statutes submitted by the organization uncovered an inaccuracy concerning the sectoral affiliation of the professional category mentioned therein, as well as a lack of precision regarding the way in which the leadership and administration of the trade union organization are elected and renewed. The Government states that the letter addressed to the trade union requested it to align the provisions of its statutes with the requirements of the law and that this in no way constituted a refusal to register it.
3. 123. Furthermore, the Government explains that the letter from the Ministry of Labour and Social Security was indeed sent to the home of the national coordinator of the trade union since the registered address of the trade union appearing in the document is not the same as the one that appears in the statutes. Moreover, the registered address of the SESS is that of the headquarters of another trade union organization, which is currently in such a state of inner turmoil that it would prevent the SESS from maintaining its autonomy and independence.
4. 124. The Government considers that, had the SESS contacted the authorities directly, it could have benefitted from the opinion of the administration and presented a complete dossier according to the law. The Government indicates that the leaders of the SESS were subsequently invited to complete the dossier in accordance with the administration’s observations, and recalls that the higher education sector is already represented by three trade union organizations.
5. 125. As concerns the National Autonomous Union of Workers of the SONELGAZ Group, the Government indicates that the administration responded to the application for registration of the trade union in a timely manner by requiring the disclosure of certain missing documents, including certificates of work of the founding members, in accordance with the legal requirements. The trade union provided the requested documents only on 25 December 2012. Meanwhile, working sessions were held with the administration and members of the trade union in order to amend the statutes of the union to conform to the requirements of the law on certain points relating to the guarantees of democratic elections and the renewal of the operations of bodies and organs. According to the Government, the amended statutes of the trade union were filed by the trade union on 13 January 2013.
6. 126. As concerns the SNATP, the Government indicates that some documents were also missing with the application for the declaration of establishment of the trade union. These documents were filed by the union in December 2012. A working session was held with the trade union in order to amend the statutes of the union to bring them in conformity with the law. A letter recalling the main points was subsequently sent to the union (attached to the Government’s communication).
7. 127. The Government states in conclusion that the process of records concerning the declaration of establishment of trade unions is conducted in accordance with the provisions of Act No. 90-14 of 2 June 1990, which sets out the modalities for the exercise of trade union rights and in compliance with the principles set by Convention No. 87. It indicates that three new unions have been registered in 2012. In a communication dated 13 March 2013, the Government provides its observations in relation to the SNAPAP case.

C. The Committee’s conclusions

1. 128. The Committee observes that, in the present case, the complainants’ allegations relate to the systematic refusal of the Ministry of Labour and Social Security to process the applications to register, submitted by the newly-established trade union organizations.
2. 129. The Committee takes note of the SESS’s statement to the effect that it submitted a dossier stating its intention to establish a trade union organization in January 2012, as required by Algerian legislation, notably Act No. 90-14 of 2 June 1990, which sets out the modalities for the exercise of trade union rights. The Committee notes the complainant’s statement to the effect that the Government’s reply was received more than a month after the application for registration had been submitted. According to the SESS, despite the fact that the letter from the authorities was dated 16 February 2012, the envelope accompanying it was stamped 5 March 2012, in other words, after the deadline of one month specified in the law (a copy of the letter and envelope has been provided by the complainant). The Committee observes that the letter from the Ministry of Labour and Social Security indicates that “an examination of the trade union’s statutes shows that they are inconsistent with the provisions of Act No. 90-14 of 2 June 1990, as amended and supplemented, which sets out the modalities for the exercise of trade union rights. In view of this fact, I invite you to align your statutes with this law.”
3. 130. The Committee takes note of the complainant’s statement to the effect that the content of this reply is the same, down to the letter, as the reply sent to the other trade union organizations that had also submitted a dossier stating their intention to establish a trade union. According to the complainant, this demonstrates that the authorities refuse to register trade union organizations as a matter of course on the grounds of the non-conformity of their statutes.
4. 131. Furthermore, the Committee notes that the SESS is surprised by the fact that the letter from the administration was sent to the home of the national coordinator of the organization when the latter has its own address, as specified in its statutes.
5. 132. The Committee takes note of the explanations provided by the Government, according to which its reply to the SESS’s application was sent to the organization on 16 February 2012, by the deadline specified in the law. The Government indicates that an examination of the statutes submitted by the organization uncovered an inaccuracy concerning the sectoral affiliation of the professional category mentioned therein, as well as a lack of precision regarding the way in which the leadership and administration of the trade union organization are elected and renewed. The Government recalls that Act No. 90-14 of 2 June 1990, which sets out the modalities for the exercise of trade union rights, lays down certain requirements for the statutes of trade union organizations that must be met, failing which they will be null and void. The Committee notes the Government’s statement to the effect that the letter addressed to the trade union requested it to align the provisions of its statutes with the requirements of the law and that this in no way constitutes a refusal to register it. The Government further states that, had the SESS contacted the authorities directly, it could have benefited from the opinion of the administration and presented a complete dossier according to the law.
6. 133. In addition, the Committee notes the Government’s explanation that the letter from the Ministry of Labour and Social Security was indeed sent to the home of the national coordinator of the trade union since the registered address of the trade union appearing in the document was not the same as the one that appeared in the statutes. Moreover, the registered address of the SESS is allegedly that of the headquarters of another trade union organization, which is currently in such a state of inner turmoil that it would prevent the SESS from maintaining its autonomy and independence.
7. 134. The Committee takes note of the information provided by the SNAPAP, which proceeded to renew its leadership in accordance with the legislation in force and under the supervision of a bailiff, in December 2011. The SNAPAP indicates that the activities of its fifth national conference were overseen by a bailiff and that, at the conclusion of these activities, a dossier containing all the relevant legal documents was submitted by the bailiff to the Ministry of Labour and Social Security, which acknowledged receipt thereof. However, it appears that no reply from the Government was ever received by the deadline of one month specified in the law. The Committee notes that the complainant takes this to mean that the conference and the decisions taken at its conclusion are considered to be legal. The Committee notes the Government’s observations in relation to the SNAPAP case.
8. 135. The Committee also takes note of the communications sent by the National Autonomous Union of Workers of the SONELGAZ Group and the SNATP, which denounce the authorities’ lack of reply more than one month after the bailiff submitted their respective dossiers stating their intention to establish a trade union in June 2012. The Committee notes that the complainants have received a letter from the Ministry of Labour and Social Security dated 13 September 2012, requesting them to complete their dossier (with certificates establishing the nationality of the founders, proof of employment and a legal document confirming the registered address of the organization) and to contact the Ministry to receive comments and observations that they should take into account. According to the complainants, the letter mentioned previous letters dated 31 July 2012, which corresponds to the deadline by which the Ministry had to provide a reply, that were never received. The Committee notes that the National Autonomous Union of Workers of the SONELGAZ Group also provides a copy of its reply dated October 2012, in which it complies with the request and provides the additional documents required.
9. 136. The Committee notes the Government’s indication that, with regard to the situation of the two unions mentioned above, the administration responded to their respective applications for registration in a timely manner by requiring the disclosure of certain missing documents, including certificates of work of the founding members, in accordance with the legal requirements. The Government also states that both unions have recently held working sessions with the administration to amend their statutes to conform to the requirements of the law on certain points relating to the election of instances and operation of organs. According to the Government, the amended statutes of the National Autonomous Union of Workers of the SONELGAZ Group were filed on 13 January 2013, and a letter from the administration recalling the modifications was sent to the SNATP on 21 February 2013 following a meeting held on 27 January 2013.
10. 137. At the outset, the Committee recalls with concern that it has already examined several complaints relating to obstacles to the establishment of trade union organizations in Algeria, notably the refusal of the authorities to register new trade unions. In this regard, in its examination of the most recent of these cases in June 2010, the Committee had recommended the Government to ensure the strict application of national law and of the principles concerning the right to form trade unions, and had expressed its expectation that the actions of the administration that were in contravention of Convention No. 87 would not recur in the future, [see Case No. 2701, 357th Report, para. 142].
11. 138. The Committee recalls that the right to official recognition through legal registration is an essential facet of the right to organize since that is the first step that workers’ or employers’ organizations must take in order to be able to function efficiently, and represent their members adequately. Furthermore, the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. Such authorization could concern the formation of the trade union organization itself, the need to obtain discretionary approval of the constitution or rules of the organization, or, again, authorization for taking steps prior to the establishment of the organization. This does not mean that the founders of an organization are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition. Even in cases where registration is optional but where such registration confers on the organization the basic rights enabling it to ‘further and defend the interests of its members’, the fact that the authority competent to effect registration has discretionary power to refuse this formality is not very different from cases in which previous authorization is required. Moreover, the Committee recalls that any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 295, 272 and 279].
12. 139. As regards the case of the SESS, the Committee requests the Government to indicate whether the organization has followed up on the requests for additional information made by the administration, and expects that the Government has been able to proceed with the trade union organization’s registration.
13. 140. Generally speaking, recalling that the applications for registration were filed more than one year ago in one case, the Committee can only express its concerns as regards what clearly constitutes lengthy delays to register trade unions and a violation of the right of workers to establish organizations of their own choosing. The Committee requests the Government to keep it informed of the outcome of the registration process of the National Autonomous Union of Workers of the SONELGAZ Group and the SNATP, and expects that they will be registered quickly and without further delay.
14. 141. The Committee expects that the Government will take all necessary measures in the future to ensure that the right to form trade unions is fully applied in accordance with national law, especially as regards deadlines, and with the principles of freedom of association recalled above.