Rapport définitif - Rapport No. 401, Mars 2023

1. 56. The complaint is contained in a communication from the National Council of Higher Education Teachers of Algeria (CNES) dated 23 November 2021.
2. 57. The Government provided its observations in communications dated 31 January and 12 September 2022.
3. 58. 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 complainant’s allegations

1. 59. In a communication dated 23 November 2021, the CNES denounces acts of interference by the Government in the functioning of the trade union organization and harassment of its officers and members. The complainant alleges: (i) the manipulation of the justice system; (ii) the infiltration of the CNES by individuals with the aim of taking control of it, with the complicity of the Ministry of Justice; (iii) harassment of members of the CNES by the Ministry of Higher Education and Scientific Research (Ministry of Higher Education), in particular through repeated judicial harassment and disciplinary sanctions; and (iv) the complicity of the Ministry of Labour, Employment and Social Security (Ministry of Labour), which recognizes the faction composed of the infiltrators as representing the CNES.
2. 60. The complainant indicates that individuals belonging to 5 of the 38 existing union branches, with the complicity of political members occupying posts of responsibility in certain universities, organized a pseudo-congress in Constantine on 9 December 2016 in order to elect a new union executive committee. The complainant indicates that this pseudo-congress took place despite the absence of 14 of the 15 members of the union’s national executive committee, including the national coordinator, and the absence of 18 of the 21 members of the congress preparatory committee. According to the complainant, most of the individuals in question had just joined the CNES and were not members of either the national council or the national executive committee.
3. 61. The complainant indicates that its national council met on 16 December 2016 to denounce the Constantine pseudo-congress and to fix the date of 12 January 2017 for holding its own congress. Most of the union branches (33 out of 38) took part in the national council of 16 December in the presence of a judicial officer. Moreover, the national council and the 33 union branches published press releases denouncing the Constantine pseudo-congress. The complainant also deplores the fact that on the eve of the congress due to be held on 12 January 2017, it was notified of the refusal of the Ministry of Higher Education to let the union hold the congress on the premises of Université Alger 2 as initially authorized by the head of the university. The CNES was therefore obliged to hold its congress on its cramped premises at Université Alger 3. Furthermore, the complainant denounces the refusal of the Ministry of Labour to register the dossier which it submitted to notify the holding of the congress on 12 January 2017, on the pretext of an internal dispute within the union. Lastly, the complainant provides examples of correspondence received from the Ministry of Higher Education prohibiting it from carrying out its union activities, in particular the organization of national protest actions, until the internal dispute was resolved. However, the CNES indicates that despite the threat of sanctions by the Government, it informed the authorities that it would continue to carry out its activities.
4. 62. The complainant denounces the complaints lodged against its leaders by the organizers of the Constantine pseudo-congress. An initial complaint lodged with the labour court of Bir Mourad Raïs was rejected on the grounds that the plaintiff, Mr Abdelhafid Milat, the national coordinator elected by the Constantine pseudo-congress, was not competent to initiate legal proceedings (decision of 1 April 2018). The complainant claims that it was notified, without having been previously informed of the appeal, of a judicial decision of the Court of Appeal of Algiers of 10 June 2019 overturning the first-instance judgment and invalidating the congress held on 12 January 2017. The complainant indicates that it appealed against this decision but that the appeal was dismissed. The complainant raises questions regarding political interference in this matter. It draws attention to the fact that Mr Milat was appointed as vice-chairperson of the Independent National Election Authority, the body in charge of the presidential elections, which were rejected by the people. The complainant deplores the fact that despite the information that it submitted regarding the representatives of the executive committee elected in January 2017, the Ministry of Labour and the Ministry of Higher Education have since recognized Mr Milat’s faction as representing the CNES.
5. 63. Lastly, the complainant reports recurrent acts of harassment against its members since 2016, in particular physical aggression, dismissals and judicial proceedings, some of which have been reported to the International Labour Office by the Confederation of Algerian Unions (CSA), of which the CNES is a founder member. For example, the national coordinator of the CNES was convicted of defamation and slander for denouncing the facts of the present case, and given a suspended sentence of three months’ imprisonment and a fine, as well as being required to pay damages of 300,000 Algerian dinars (US$2,215).
6. 64. The complainant deplores the fact that none of the three authorities to which it had recourse in this matter – namely, the Ministry of Labour, the Ministry of Higher Education and the Ministry of Justice – has taken any action in response to its requests.

B. The Government’s reply

1. 65. The Government provided its observations in communications dated 31 January and 12 September 2022. The Government recalls that the CNES is a trade union organization which has been registered since January 1992, in accordance with the provisions of Act No. 90-14 of 2 June 1990 concerning procedures for the exercise of the right to organize. It observes that there has been an internal dispute within the CNES since 2016, resulting in the holding of two congresses, namely: (i) the first congress held in Constantine on 8, 9 and 10 December 2016, the documents for which sent to the Ministry of Labour indicate the election of a new national coordinator, namely Mr Abdelhafid Milat; and (ii) the second congress held on 12 and 13 January 2017 in Algiers, the documents for which sent to the Ministry indicate the election of Mr Azzi Abdelmalek as national coordinator of the union.
2. 66. The Government indicates that, in view of this situation and in accordance with the provisions of Act No. 90-14 of 2 June 1990, in particular section 15 thereof, which prohibits any legal or physical person from interfering in the internal functioning of trade unions, the two parties were invited to the Ministry of Labour to be informed that internal union disputes are a matter for the competent courts, in accordance with the legislation in force. A communication to this effect, dated 1 March 2018, was sent to each of the opposing factions.
3. 67. According to the Government, it was against this background that on 12 October 2017 Mr Milat brought the dispute before the labour division of the Court of Bir Mourad Raïs, lodging an appeal against Mr Abdelmalek Azzi and Mr Abdelmalek Rahmani, and calling for the invalidation of the congress held in Algiers on 12 January 2017. The court ruled, in a judgment of 1 April 2018 (No. 08047/18), that Mr Milat was not competent to act as plaintiff. Availing himself of his right of appeal, Mr Milat lodged an appeal on 24 July 2018 with the Court of Algiers. On 17 December 2018, the labour division of the Court of Algiers handed down an in absentia final ruling (No. 05018/18), further to both parties’ failure to appear, overturning the first-instance judgment and deeming the congress held in Algiers on 12 January 2017 to be null and void. On 20 January 2019, Mr Azzi brought a motion in the Court of Algiers to oppose the ruling of 17 December 2018. By a ruling of 10 June 2019 (No. 00478), the Court of Algiers upheld the final ruling of 17 December 2018, overturning the first-instance judgment of the Court of Bir Mourad Raïs and invalidating the congress held on 12 January 2017 in Algiers, with all attendant consequences.
4. 68. The Government indicates that, in view of the above and in light of the court decisions, Mr Milat was recognized as national coordinator of the CNES by the competent courts. The Government recalls that the parties to the internal union dispute availed themselves of their right of appeal vis-à-vis the judicial authorities. It categorically rejects the complainant’s allegations that interference occurred.
5. 69. The Government indicates that since the court decisions handed down in this matter, the CNES has consolidated and reinforced its presence and participation in consultation and social dialogue with the Ministry of Higher Education on the various dossiers concerning, in particular, terms of employment and working conditions and training programmes and plans. Moreover, the Government states that the CNES held its 6th Congress on 14 November 2019, further to which Mr Abdelhafid Milat was re-elected as national coordinator.
6. 70. According to the Government, Mr Abdelmalek Azzi has made use of all resources guaranteed by law to assert his rights, and his unfounded allegations are tantamount to defamation, which could result in judicial proceedings being brought by the persons and institutions cited in his communication.
7. 71. In conclusion, the Government requests the Committee to close the case.

C. The Committee’s conclusions

1. 72. The Committee observes that the present case is concerned with allegations of interference by the authorities in the functioning of the CNES and acts of harassment against its members.
2. 73. The Committee notes, according to the information provided, the following sequence of events: (i) the CNES is a trade union organization which has been registered since January 1992; (ii) in 2016 the CNES experienced an internal dispute resulting in two congresses being held. The first congress was held in Constantine on 8, 9 and 10 December 2016; the documents relating to it which were sent to the Ministry of Labour, Employment and Social Security (Ministry of Labour) indicate the election of a new national coordinator, namely Mr Abdelhafid Milat. The second congress was held in Algiers on 12 and 13 January 2017; the documents relating to it which were sent to the Ministry indicate the election of Mr Abdelmalek Azzi as national coordinator; (iii) in view of the internal dispute, the Ministry of Higher Education and Scientific Research (Ministry of Higher Education), by a letter of 19 February 2017, informed the CNES executive committee headed by Mr Azzi that, further to a communication from the Ministry of Labour dated 16 February 2017, it was requesting the CNES to cease its activities until the dispute was resolved through the available legal channels; (iv) the Ministry of Labour requested the two opposing factions, in a communication of 1 March 2018, to cease their activities until the dispute was resolved through the available legal channels pursuant to the Code of Civil and Administrative Procedure; (v) Mr Milat brought the dispute before the labour division of the Court of Bir Mourad Raïs in October 2017, in the form of an appeal against Mr Abdelmalek Azzi and Mr Abdelmalek Rahmani (former national coordinator of the CNES) and calling for the invalidation of the congress held in Algiers on 12 January 2017. The court ruled, in a judgment of 1 April 2018 (No. 08047/18), that Mr Milat was not competent to act as plaintiff; (vi) Mr Milat appealed in the Court of Algiers against the judgment of 24 July 2018 of the Court of Bir Mourad Raïs. On 17 December 2018, the labour division of the Court of Algiers issued an in absentia final ruling (No. 05018/18), further to both parties’ failure to appear. The ruling overturns the first-instance judgment and deems the congress held in Algiers on 12 January 2017 to be null and void; (vii) on 20 January 2019, Mr Azzi brought a motion in the Court of Algiers against the ruling of 17 December 2018. By a ruling of 10 June 2019 (No. 00478), the Court of Algiers upheld the final ruling of 17 December 2018 overturning the first-instance judgment of the Court of Bir Mourad Raïs and invalidating the congress held on 12 January 2017 in Algiers, with all attendant consequences; and (viii) further to the court decisions, Mr Milat was recognized as national coordinator of the CNES by the competent authorities, in particular the Ministry of Higher Education and the Ministry of Labour.
3. 74. The Committee observes that, in the present case, the holding of the two congresses of the CNES appears to stem from a dispute within the trade union. As a preliminary point, the Committee is not competent to make recommendations on internal dissensions within a trade union organization, so long as the government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization. Conflicts within a trade union should be resolved by its members, and when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbitrator, and not by the administrative authority [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1613, 1611 and 1620].
4. 75. The Committee observes that the members of the executive committee elected by the congress held on 9 December in Constantine are presented by the complainant as having concluded a political agreement with the authorities. The complainant adds that the Constantine congress was organized by 5 out of the 38 branches comprising the trade union, and was held in the absence of 14 of the 15 members of the union’s national executive committee, including the national coordinator (Mr Abdelmalek Rahmani), and also in the absence of 18 of the 21 members of the congress preparatory committee. The Committee notes that the CNES national executive committee and the 33 union branches met on 16 December 2016 to denounce the holding of the Constantine congress through press releases and to confirm the date of 12 January 2017 for holding the union’s ordinary congress. This meeting of the union council was certified by a judicial officer and the record was sent to the Government. The Committee notes that this latter congress was held in Algiers with the participation of the vast majority of union branches (33 out of 38) and of the members of the national executive committee, including the outgoing national coordinator.
5. 76. The Committee also notes with concern the complainant’s allegation that this congress had to be held on its cramped premises at Université Alger 3, following the last-minute refusal by the Ministry of Higher Education to allow the congress to be held on the premises of Université Alger 2 as initially planned.
6. 77. The Committee notes the Government’s reply that the parties to the internal dispute have availed themselves of their right of appeal to the judicial authorities, and further to the court decisions handed down in this matter the Ministry of Higher Education and the Ministry of Labour have recognized the executive committee led by Mr Milat as the mouthpiece of the CNES. The Government states that the CNES has since held its 6th Congress, on 14 November 2019, as a result of which Mr Milat was re-elected as national coordinator.
7. 78. The Committee observes that according to the CNES by-laws (provided by the complainant), the ordinary session of the union congress is held every three years (section 56) and any extraordinary session of the congress must be convened by at least two thirds of the 15 members of the union’s national council or further to the resignation of at least two thirds of the members of the national executive committee (section 57). The information at the Committee’s disposal does not reveal whether the Constantine congress of 9 December 2016 was convened according to the above-mentioned procedures laid down in the union constitution.
8. 79. The committee notes that the internal conflict within the CNES has been settled by the judiciary which annulled the congress of January 2017 and rendered its effects null and void. It notes that the Court of Algiers, in its ruling of June 6, 2019, relied on the chronology of the congresses to conclude the validity of the congress held on 9 December 2016 in Constantine and thereby invalidating the congress of 12 January 2017 in Algiers. The Court also relied on the absence of judicial recourse against the holding of the Constantine congress on the part of the members of the presumed dissolved office.
9. 80. The Committee observes that it does not have sufficient elements in the Government's reply and the ruling of the Court of Appeal to determine to what extent the question of non-compliance with the CNES by-laws was taken into consideration in order to conclude that the congress held in Constantine was valid and to annul the election of the National Bureau led by Mr Azzi. In this regard, the Committee wishes to recall its constant view that the regulation of procedures and methods for the election of trade union officials is primarily to be governed by the trade unions rules themselves, and that the fundamental idea of Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which should govern the administration of their organizations and the elections which are held therein [see Compilation, para. 592] and requests the Government to ensure that this is respected.
10. 81. Moreover, the Committee notes that the information provided reveals that the Ministry of Higher Education, on the recommendation of the Ministry of Labour, asked the executive committee led by Mr Azzi to suspend its activities and to have recourse to the judicial authorities to resolve the dispute in progress, pursuant to the Code of Civil and Administrative Procedure. The Committee notes the Government’s indication that a similar letter had been sent to the executive committee led by Mr Milat. In this regard, the Committee is of the view that the appeals brought before the judicial authorities should not constitute grounds for paralysing the executive committees which are presumed to have been elected and the activities which they wish to conduct in the interests of their members.
11. 82. The Committee notes the allegations of recurrent acts of harassment against members of the CNES since 2016, in particular physical aggression, dismissals and judicial proceedings. The complainant cites the example of the conviction of Mr Azzi on 26 October 2017 for denouncing the facts related in the present case, and the imposition on him of a suspended sentence of three months’ imprisonment for defamation and slander plus a fine, as well as the requirement to pay damages of 300,000 Algerian dinars (US$2,215) for injury caused. The Committee recalls in general terms that trade union officers should not be subjected to retaliatory measures for having exercised the rights deriving from the ILO instruments on freedom of association. The Committee trusts that the Government will ensure respect of this freedom of association right.
12. 83. Furthermore, in the absence of more detailed information from the complainant regarding the nature of the acts of harassment and anti-union discrimination, the Committee will not pursue its examination of these allegations but recalls that it considers that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Compilation, para. 1117].