On June 18 and 19, 2014, street-cleaning workers across Tunisia went on strike to press trade union demands related to their working conditions. Only one day earlier, workers at the Borj Chakir refuse collection center announced that they were ending a strike that lasted from June 9 to June 17. The strikes clearly had negative effects. Garbage piled up inside towns and an unhygienic environment developed, especially as the second strike coincided with the beginning of summer. This raised the question of how to strike a balance between rights and freedoms. The right to strike is a fundamental right of the trade union that is guaranteed in Article 35 of the new Tunisian Constitution. The right to a healthy environment is also a fundamental right that the state should ensure by providing the means to eliminate environmental pollution, as stipulated in Article 45 of the same Constitution.

Previous strikes by waste collectors had already brought about improvements in their employment conditions, especially in terms of giving them more job security. The strikes in June 2014 did not produce any agreements between the government and representatives of the workers after the dialogue between them broke down. However, they did bring to light a change in how the right to strike is treated – a development that qualifies the strikes as an important landmark in defining concepts of how, and under what conditions, this right might be exercised in the future.

A survey of the reactions of the various parties to the strikes shows that the environmental effects and the unpopularity of the strikes did not prevent the Conféderation Générale Tunisienne de Travail, the main Tunisian trade union organization, from embracing and defending the protest movement. The fact that the trade unionists upheld the cleaning workers' right to strike adds a dimension that goes beyond the workers' original sectoral demands. It further lays the basis for a rights perspective that is more comprehensive and that might be labeled as 'going on strike is a fundamental workers' right'. On the other side, the Tunisian government, which is grappling with managing the economic situation, saw the unpopularity of the cleaning workers' strike as a good opportunity to develop a new approach to strikes by public service workers. It portrayed the large number of strikes in quick succession as one of the reasons for the economic crisis.

The cleaning workers' strike was consequently transformed from merely a trade union action in one sector, into an implicit broader one regarding the right to strike. After the workers succeeded in asserting their right to strike, the way they exercised that right in a sensitive sector such as waste collection had the effect of stimulating debate about regulating the exercise of the right to strike.

The Right to Strike, Despite Objections

Article 8 of the Tunisian Constitution of June 1, 1959, decreed that trade union rights are guaranteed. However, this constitutional protection has not prevented successive Tunisian governments from restricting union activity, by prosecuting union activists on charges of obstructing the freedom to work under articles of the penal code.[1] The experiences of trade unionists under the First Republic prompted them to insist on a specific reference to the right to strike in the Constitution of the Second Republic. At the same time, there were so many strikes in the chaos of demands that occurred after the Tunisian Revolution of 2011, that a section of the political class was wary of endorsing a right to strike without restrictions on how that right can be used.

The first stage of the conflict produced a draft Constitution in which Article 27 stated that “the right to strike is guaranteed as long as it does not endanger people's lives and health”. It was obvious from the way the article was drafted that the right to strike was limited, and that the article could be interpreted in a way that would ban strikes by those who work in sectors that operate vital public services. However, national dialogue and the agreements that stemmed from it produced a formulation of the article that gave constitutional protection to the right to strike as a basic right, in line with the requirements of Article 8 of the International Covenant on Economic, Social and Cultural Rights.[2] Article 35 of the Tunisian Constitution therefore ended the argument over banning the right to strike. For the first time in Tunisian history, such a right was established as a basic right that is guaranteed by the Constitution and as a result, it cannot be subsequently banned or criminalized.

As public freedoms developed after the revolution, there was growing awareness of the importance of providing constitutional protection for the right to strike. At the same time, the succession of strikes that resulted from this awareness raised the question of how to limit the negative effects that the right to strike had had on the provision of vital public services. The weakness of the government had previously prevented the emergence of a system that would set limits on the right to strike. The strike by the cleaning workers, however, led to a qualitative shift in the government's approach, suggesting that it sought limits on the right to strike that would have to be observed.

Controls on the Right to Strike

The Tunisian government and the province of Tunis – at an earlier date – have vetted the existing legal system to find a mechanism that would allow public services to continue operating while their employees exercise their right to strike. On the occasion of the cleaning workers' strike in January 2014 and the strike by the workers at the refuse collection center, a decree was issued instructing workers to work. However, this did not achieve the intended result. It became clear that there needed to be controls that are acceptable to the workers, to ensure a minimum staffing level for public services when strikes occur.

Back to Work Tactics

At the time of the January strike and the Borj Chakir strike in June 2014, the governor of Tunis Abdel Razzak Khalifa and the Tunisian government, respectively, resorted to issuing nominal decrees instructing a number of the striking workers to return to  work to ensure that operations continued. This is a legal mechanism set out in Article 389 of the Labor Code, which links it to the workers of the company, thereby implicitly banning the use of other people to thwart their strike. It also specifies the procedures for conveying the back to work order – by individual decisions sent to the workers concerned, by putting up a notice in the workplace, or by an announcement in the media if all the striking workers are being mobilized. Issuing a back to work order notice has the effect of delegitimizing strike action by those who have been instructed to work. If the workers refuse to comply, such an order also makes them liable to criminal prosecution on charges that carry jail penalties ranging between one month and one year. The lawmakers have therefore laid out two types of consequences for refusing to comply with work orders. The first is an administrative one, whereby the decision to stop work is rendered illegitimate with possible disciplinary implications. The second is a criminal one, in the form of prison sentences.

In the case of the cleaning workers' strike, few workers heeded to the work order notices, and breaking the strike remained an unpopular measure among the workers. Although the back to work order is a procedure known in various jurisdictions, including in European countries, the idea of abandoning it as a solution and as a last resort requires giving serious consideration legislative reforms to ensure minimal staffing needs are met in vital services when strikes take place.

The Need to Ensure Minimum Staff Levels

During strikes that were announced after the revolution, it was apparent that some trade union officials were anxious of their own accord to ensure that public services continued. The Union of Journalists, for example, was careful during its strikes, including the one it called for on September 17, 2013, to ensure that the media kept working, to explain the nature of the strike and to state that it would not include news bulletins. When the judges went on strike, their professional association made sure that the strike would not obstruct the work of the judiciary and said that the judges on strike would continue to look into urgent matters, such as cases of people in detention and others. The unions of health workers have a long tradition of ensuring a minimal level of operations. They always exempt emergency departments and urgent cases. There is however a need in other sectors to clarify the concept of maintaining operations in public services, so that strikes do not become destructive instead of being a means for promoting workers' interests and social progress. Dialogue and consensus between the various sectors of society might prove to be the starting point needed for laying down guidelines to ensure that work continues in public utilities and vital workplaces when there are strikes, protecting both the right to strike and the rights of the community.

This article is an edited translation from Arabic.
 

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[1] Article 136 of the Tunisian Penal Code states: “Anyone who causes or tries to cause a work stoppage, either by an individual or a group, whether by violence, by threats or by hoaxes, or who causes or tries to cause a work stoppage to continue, shall be punished by three years' imprisonment and a fine of 27 dinars.”

[2] The International Covenant on Economic, Social and Cultural Rights (Article 8, 1(d)), ratified by the United Nations in December 1966.