Legal Protection of Trade Union Freedom in Algerian Legislation (An Analytical Study in Light of Law No. 23-02)

 

Prepared by the researche  : Ali Latreche – University Ahmed Draia, Adrar, Algeria

DAC Democratic Arabic Center GmbH

Arabic journal for Translation studies : Fourteenth Issue – January 2026

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin

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ORCID iD : 0009-0008-3536-4126

Published online	Accepted	Received
30/01/2026	05/12/2026	03/08/2025

: 10.63939/ajts.mx8za063

Cite this article as: Latreche, A. (2026). Legal Protection of Trade Union Freedom in Algerian Legislation (An Analytical Study in Light of Law No. 23-02). Arabic Journal for Translation Studies, 5(14), 203-237. https://doi.org/10.63939/ajts.mx8za063

Abstract

The study concludes that Algerian Law No. 23-02 of 2 May 2023 establishes a balanced legal framework governing trade union activity in both the public and private sectors. The legislator sought to reconcile the protection of trade unionists with the need to preserve order and discipline within workplaces. To this end, the law provides strong safeguards against employer abuse and administrative arbitrariness, while preventing the misuse of trade union status. Key protections include extending legal protection to all unionized workers regardless of representativeness, an absolute prohibition on sanctions based on union activity or membership, restrictions on transferring trade union delegates, equality in disciplinary procedures, and enhanced safeguards in cases of dismissal or termination for certain union representatives. At the same time, the law imposes limits on trade union conduct, exposing unionists to sanctions where they engage in unlawful work stoppages, disrupt institutional activity, or resort to violence, threats, or coercion. In the public sector, trade unionists are regarded as the weaker party, and severe disciplinary measures are subject to strict procedural guarantees, including prior binding review by joint committees and access to judicial remedies with compensation. In the economic sector, labor inspectors play a central mediating role between workers and employers. Overall, the law combines protective, regulatory, and penal mechanisms to ensure both the freedom and proper regulation of trade union activity.

Keywords: Trade Union, Employment, Algerian Legislation, Inspector, Freedom

© 2026, Latreche, licensee Democratic Arabic Center. This article is published under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), which permits non-commercial use of the material, appropriate credit, and indication if changes in the material were made. You can copy and redistribute the material in any medium or format as well as remix, transform, and build upon the material, provided the original work is properly cited.

Introduction

The Constitution constitutes the supreme legal and political instrument of the State, representing the fundamental source from which all laws, regulations, and administrative directives enacted by state authorities emanate, whether such authorities are central, decentralized, deconcentrated, or operating within the framework of administrative deconcentration. It forms the cornerstone of the State’s entire legal and institutional order. Furthermore, even international treaties ratified by the legislative authority must conform to the Constitution, subject to constitutional review exercised by the Constitutional Court.

The Constitution also guarantees the fundamental rights and freedoms of both natural and legal persons across all spheres, including the social, economic, political, cultural, and security domains. It establishes the legal safeguards necessary to protect these rights and freedoms from any form of arbitrariness or violation, in the form of mandatory rules from which no derogation is permissible under any circumstances. This, in turn, reinforces the principles of the supremacy of the Constitution and the rule of law over all persons, while also strengthening the principle of equality before the law and before all laws, regulations, and administrative acts issued by the aforementioned authorities. Accordingly, the Constitution constitutes the highest source from which the State derives the legitimacy of its laws, regulations, and directives.

Article 69 of the amended Algerian Constitution of 2020 provides that “the right to form trade unions is guaranteed and shall be exercised freely within the framework of the law.” Similarly, most constitutions worldwide, as well as international labour instruments and national labour legislation, recognize freedom of trade union activity. However, the scope of its exercise and the modalities of its regulation vary from one State to another, depending on the trade union labour law in force in each country.

Within this framework, the present study examines Algerian Trade Union Labour Law No. 23-02, published in Official Gazette No. 29 of 2 May 2023, through an analysis of the legal rules that ensure the protection of workers affiliated with trade union organizations. It also addresses the limits of trade union freedom and the liabilities arising therefrom, whether borne by the trade union as a legal person endowed with legal personality or by the natural persons affiliated with it, whether operating in the economic sector or within the public administrative sector.

However, both the national reality and the comparative international context demonstrate that trade union organizations have, on numerous occasions, adversely affected economic and political public order, which has, in turn, consistently produced negative repercussions on social public order. This raises the question of the extent to which the Algerian legislator has succeeded in enacting legislation capable of striking a balance between, on the one hand, the protection of the rights and freedoms of trade unionists and trade union organizations, and, on the other hand, the safeguarding of public order in its various dimensions ?

In order to address this research question, the present study adopts a methodological structure divided into four main axes:

• Protective rules and legal safeguards governing the exercise of the right to trade union activity;
• Legal protection of trade unionists against the employer’s disciplinary authority;
• Criminal provisions regulating trade union activity;
• Limits of trade union freedom.

As for the methodologies adopted, they are as follows:

• The Analytical Method

           The analytical method was employed to deconstruct the legal text governing Algerian trade union activity, namely Law No. 23-02, into its constituent elements. This approach facilitates the identification of the legislator’s underlying objectives through a profound and systematic interpretation of its legal rules, rather than a superficial one, by examining the wording of the provisions, their legislative context, and the purposes sought by the legislator. Such an approach aims to enhance legal certainty and preserve public order without undermining the protection of the rights and freedoms of trade unionists and trade union organizations. Furthermore, this method enables the interconnection of these legal rules in order to reveal areas of coherence or potential conflict among them, serving as a mechanism for evaluation and critical assessment. Upon identifying shortcomings and legal gaps, the study ultimately advances scientifically grounded recommendations.

• The Deductive Method

     The importance of this method lies in the transition from general legal rules to specific cases and practical applications. It is employed by applying the general legal provisions of Algerian Trade Union Labour Law No. 23-02 to empirical reality, in order to deduce legislative rulings and align trade union practice with the applicable legal framework, whether in the economic sector or within the public administration. This approach enables the derivation of conclusions relating to trade union rights and freedoms on the basis of the general principles underpinning the legal rules of Trade Union Law No. 23-02.

❖ The Inductive Method

The significance of this method lies in moving from specific instances derived from the rules of trade union law and from the practical reality of trade unionists and trade union organizations in both the public and private sectors—regarding rights and freedoms on the one hand, and the preservation of public order on the other—towards a broader evaluation of the extent to which trade union law rules succeed in achieving their intended objectives. Ultimately, this approach allows for the formulation of recommendations aimed at addressing gaps in certain legal provisions and amending others, thereby highlighting the social dimension of trade union law. In this sense, the inductive method complements the analytical and deductive methods previously employed.

1. Protective Rules and Safeguards Governing the Exercise of the Trade Union Right

Articles 125 to 132 of Trade Union Law No. 23-02 in Algeria deal with trade union activities and give special protection to the right to form a union. The lawmaker took a balanced approach to regulating this protection so that workers who are members of trade unions can’t break the law or do other things that are against the rules at work, and employers can’t go too far, either formally or informally, against workers who are members of trade unions. The lawmaker also wanted to make sure that certain protections were available in certain situations to protect the right to unionize.

Accordingly, pursuant to these provisions, the protection of the exercise of the trade union right will be analyzed by focusing on the following:

• 1 Rules governing the protection of trade union practices within employing entities
• 2 Limits regulating trade union practice within employing entities

I.1. Rules Governing the Protection of Trade Union Practices within Employing Entities

The Algerian legislator established general rules for the protection of trade union practices within employing entities pursuant to Law No. 23-02 relating to trade union activities. These rules are as follows:

• Legal protection is guaranteed to all workers who are members of trade union organizations, whether or not such organizations are representative¹.
• It is absolutely prohibited for the employer to impose any sanction on workers for reasons related to trade union activity or trade union affiliation.
• As a general rule, the employer is prohibited from changing the position of the trade union delegate or transferring them to another workplace; however, an exception is permitted where justified by legitimate operational necessity.
• The trade union organization alone is competent to deal with violations of a trade union nature, in accordance with the statutes and internal regulations of the trade union organization.
• As a general rule, there shall be no discrimination in disciplinary procedures between unionized and non-unionized workers in matters related to work.
• As a legal exception, there exists protective differentiation in disciplinary procedures relating to dismissal or unfair termination in favor of:
• Trade union delegates
• The authorized trade union representative of a non-representative trade union organization²
• Representatives elected directly by the body of workers for the purposes of collective bargaining and the prevention and settlement of collective labor disputes
• Members of the trade union council of the employing entity

This exception is embodied in the protection provided by Articles 132 and 137 of Law No. 23-02 relating to trade union activities. Under these provisions, where an employer decides to dismiss or remove a worker with trade union affiliation due to the commission of serious misconduct, the employer must, prior to initiating any such procedure, notify by registered letter with acknowledgment of receipt each of the following:

• The unionized worker concerned, for information
• The trade union organization to which the worker subject to dismissal or termination belongs, for information
• The territorially competent labor inspector, such notification constituting a formal referral for the initiation of an investigation into the matter

The employer must attach to the registered letter with acknowledgment of receipt the following:

• All documents evidencing the serious misconduct committed by the worker benefiting from the protection provided by Law No. 23-02 relating to trade union activities
• A detailed account of all facts justifying the dismissal or termination
• A detailed account of all circumstances surrounding the facts justifying the dismissal or termination

I.2. Limits Regulating Trade Union Practice Within Employing Entities

The Algerian legislator established regulations governing trade union practice within employing entities pursuant to Law No. 23-02 relating to trade union activities. Accordingly, the following individuals:

• Trade union delegates
• The authorized trade union representative of a non-representative trade union organization
• Representatives elected directly by the body of workers for the purposes of collective bargaining and the prevention and settlement of collective labor disputes
• Members of the trade union council of the employing entity

are subject to labor law, all rules governing operation and discipline within the employing entity, and Law No. 23-02 relating to trade union activities. They are therefore obliged to comply with all provisions and rules contained therein. In this regard, the following constitute infringements of freedom of work:

• Unlawful demands, such as:
• Calls to cease work by unlawful means outside the framework of the law governing strikes
• Calls to create collective disputes between workers and the employing entity
• Calls to abstain from certain work-related activities in a manner that disrupts the activity of the employing entity
• All forms of threats, which constitute an infringement of freedom of work
• All forms of violence, such as insults and coercive maneuvering, which constitute an infringement of freedom of work

Anyone who commits such acts is not protected by trade union law and is subject to immediate disciplinary sanctions by the employer, as well as criminal prosecution.

1. Legal Protection of Trade Unionists against Employer’s Disciplinary Authority

Through Law No. 23-02 relating to trade union activities, the Algerian legislator has conferred special protection on trade unionists against the employer’s disciplinary authority, whether in the economic sector or within public institutions and bodies. The legislator has thus provided members of trade union organizations with various protective mechanisms and procedures to guard against abuses of authority involving violations of the provisions of Law No. 23-02, or the imposition of disciplinary sanctions that are disproportionate to the act committed by the trade unionist subject to discipline.

Accordingly, the legal protection afforded to trade unionists against the employer’s disciplinary authority will be examined through the following subsection:

• 1 Protection of civil servants and public agents in public institutions
• 2 Protection of wage-earning workers in the economic sector

II.1. Protection of Civil Servants and Public Agents in Public Institutions

A trade unionist does work for the trade union organization they belong to while also doing their paid work for their administrative body. This is true no matter what their grade, position, or relationship with the administration (agent, contractual worker, or civil servant). While engaging in trade union activities, that person may face disciplinary action from the appointing authority. Administrative punishments can be as severe as the third or fourth degree, or even firing someone from their job. These punishments may be based on work-related issues rather than trade union activity.

In these situations, the Algerian government has given special protection to trade unionists who work for the government through Law No. 23-02, which deals with trade union activity. This is to protect trade union freedom and to settle any disagreements that may arise between the government and civil servants, contract workers, or public agents. This protection is shown in both ways and means. This section will therefore talk about the following needs:

• Requirement One: Protective procedures for the trade unionist in relation to the administrative authority
• Requirement Two: Trade union procedures in relation to the administrative authority

II.1.1. Protective Procedures for Trade Unionist in Relation to Administrative Authority

It is rare for a relationship of cooperation to arise between the public employer and trade union organizations. In some instances, unlawful relationships of mutual interest may develop between the administrative authority of public administrations and employees affiliated with representative trade unions within those administrations, ultimately resulting in the loss of the rights of workers affiliated with the same union and adversely affecting their lawful freedoms guaranteed by the Constitution and by trade union and labor legislation. In other instances, strained relations may arise, transforming cooperation into hostility, with each party acting against the other in ways that negatively affect administrative development and public service delivery.

Given that, in such situations, the legislator views the trade unionist civil servant as the weaker party in comparison with the public employer, who holds numerous powers and may abuse them, such as through unlawful disciplinary sanctions, unlawful transfers, unlawful suspension from work, or unlawful dismissal, the Algerian legislator imposed, through certain mandatory provisions of Trade Union Law No. 23-02, protective procedures for the trade unionist civil servant in relation to the appointing authority represented by the public employer.

This will be examined through the following branches:

• 1.1.1 Protective procedures in relation to the appointing authority
• 1.1.2 Protective procedures relating to joint committees

II.1.1.1. Protective procedures in relation to the appointing authority

With the enactment of Law No. 23-02 on trade union activities, the Algerian legislator granted special protection to every trade union member belonging to any institution or public administration. This protection is manifested in distinguishing such individuals from other civil servants or public agents in the field of disciplinary sanctions. Accordingly, no public administration may impose:

• A third-degree disciplinary sanction
• A fourth-degree disciplinary sanction
• Dismissal of a civil servant for abandonment of post
• Termination of the contract of a contractual agent

regardless of the rank or position of the trade union member within the administrative body, unless the appointing authority, depending on the case, first submits a reasoned notification addressed to:

• The joint administrative committee
• The joint consultative disciplinary committee

in order to obtain its prior binding opinion within a period of fifteen (15) days from the date of notification, pursuant to Articles 143 and 144 of Law No. 23-02. It is explicitly understood from Article 143, and not merely implicitly, that the decision or opinion issued by this committee concerning the trade union member subject to disciplinary proceedings is binding rather than consultative. In other words, it is binding upon the appointing authority, which may not, under any circumstances, issue a decision that contradicts it.

Whether the appointing authority within the administrative body decides to exonerate the trade union member concerned after receiving the decision of the joint committee, or decides to impose a third- or fourth-degree sanction, dismissal, or termination of contract, it is obliged to:

• Notify the trade union member concerned of the decision taken against him or her within eight (8) days from the date of signing the decision.
• Provide the trade union member concerned with a copy or extract of the decision of the joint committee, in order to verify the conformity of the decision of the appointing authority with that of the joint committee, as the legislator, in protection of trade union freedom, bound the appointing authority to the content of that committee’s decision.
• Notify the trade union organization to which the trade union member belongs of the decision taken against him or her within eight (8) days from the date of signing the decision.

II.1.1.2. Protective procedures of the joint committees

After the appointing authority sends its reasoned notification concerning the trade union member subject to disciplinary proceedings to the joint committee, as the case may be:

• The joint administrative committee
• The joint consultative disciplinary committee

The latter undertakes the following procedures:

• Examination of the disciplinary file of the trade union member subject to sanction.
• Verification of the legality of the reasoning underlying the sanction set out in the notification of the appointing authority, particularly with regard to its proportionality to the act committed by the trade union member concerned, especially where the sanction may result in dismissal, removal from office, or termination of the employment contract.
• Summoning the trade union member concerned to appear before the joint committee at least eight (8)³ working days in advance. However, the legislator did not specify the entity responsible for sending the summons—whether it is the committee or the administration to which the individual belongs—nor did it clarify the procedures for such notification, whether through a judicial officer, postal service, telephone, or electronic means. This gap is noted in order to prevent the trade union member concerned from being unable to appear before the joint committee on the grounds of not having received any summons. On the other hand, it also aims to prevent any potential collusion between the committee and the appointing authority. Precision in such matters constitutes a path toward fairness and the construction of lawful institutions.

Given that referral to the joint committee arises solely due to trade union membership and the Algerian legislator’s intent to protect trade union freedom, it would have been more appropriate to send a copy of the summons to the trade union organization to which the individual belongs, as it is better positioned to ensure the delegate’s attendance and to strengthen the relationship between trade union organizations and administrations.

• Granting the trade union member subject to sanction access to his or her disciplinary file.
• Allowing the trade union member to submit written and oral observations regarding the grounds for the sanction advanced by the appointing authority. The legislator did not offer a choice between written or oral submissions but required both, unless the individual refuses, in which case such refusal is recorded in the minutes of the committee and forms part of the reasoning of the committee’s decision.
• Allowing the trade union member subject to summons and sanction to be assisted by a person of his or her choosing. The legislator did not specify the affiliation of the defense representative, leaving the choice entirely to the trade union member, who is best placed to assess the persuasive capacity of the person selected.
• Ultimately, the joint committee deliberates on the sanction to be imposed on the trade union member and adopts its decision unanimously.
• Transmission of the committee’s decision to the appointing authority of the administrative body to which the trade union member concerned belongs. The appointing authority is bound to comply with this decision as a matter of obligation, not merely consultation, before issuing its final decision.

II.1.2. Trade Union Procedures in Confronting Administrative Authority

The Algerian legislator, pursuant to Trade Union Law No. 23-02, also enabled a trade union member who has been subjected to an administrative sanction, as well as the trade union organization to which he belongs, to take all lawful means and procedures whenever it is deemed that an administrative injustice has occurred due to trade union affiliation. This will be examined through the following two branches:

• 1.2.1 Measures taken by the trade union member subjected to administrative sanction
• 1.2.2 Measures and procedures taken by the trade union organization

II.1.2.1. Measures Taken by Trade Union Member Subjected to Administrative Sanction

Where the appointing authority of the administrative entity, acting on the basis of the decision of the joint committee⁴, as the case may be, decides to sanction a trade union member administratively affiliated with it by imposing:

• A third-degree disciplinary sanction
• A fourth-degree disciplinary sanction
• Dismissal of a civil servant for abandonment of post
• Termination of contract for a contractual agent

And the person concerned considers such sanction to be arbitrary, on the grounds that its true or underlying reasons are related to:

• Trade union activity
• Trade union affiliation
• The trade union organization itself

the Algerian legislator, pursuant to Article 144 of Law No. 23-02, granted the administratively sanctioned trade union member the right to resort to other means to obtain his rights. These means consist of notifying the territorially competent labor inspector after exhausting all appeal and grievance procedures provided for under labor law. Pursuant to the final paragraph of Article 145 of Trade Union Law No. 23-02, the labor inspector shall then:

• Conduct an investigation based on the subject matter of the notification.
• Draw up an inspection report setting out the results of the investigation and deliver copies thereof to:
  • The trade union member concerned by the third- or fourth-degree sanction, dismissal, or termination
  • The appointing authority of the employing entity
  • The trade union organization to which the sanctioned member belongs

The trade union member concerned may also bring an action before the competent judiciary in the event that the public administration violates the provisions of Trade Union Law No. 23-02. Upon establishing the existence of such violation or violations, the competent court shall rule within a period of thirty (30) working days by a judgment enforceable immediately, notwithstanding any appeal, ordering:

• Annulment of the decision of dismissal, removal, or termination of the employment contract.
• Obligation upon the appointing authority to reinstate the trade union member concerned by dismissal, removal, or termination, in the same workplace and in the same position, or in another equivalent position with the same remuneration and compatible with his qualifications.
• Any delay in the enforcement of the judicial ruling ordering reinstatement shall give rise to a coercive fine imposed on the appointing authority, the amount of which shall not be less than the guaranteed minimum monthly wage for each day of delay in enforcement⁵, starting from the date on which the appointing authority is notified by a judicial officer.
• Compensation for the damage suffered by the trade union member as a result of the appointing authority’s violation of the provisions of Law No. 23-02, which shall be mandatory rather than optional where the person concerned claims compensation for the material and moral damage sustained.

II.1.2.2. Measures and Procedures Taken by the Trade Union Organization

A trade union organization to which a unionized worker belongs may also bring a legal action before the competent court where the worker has been subjected to an unlawful disciplinary measure leading to dismissal, termination of contract, or the imposition of a third- or fourth-degree sanction⁶. This is particularly applicable in cases where the public administration has violated the provisions of Trade Union Law No. 23-02. Once the competent court has ascertained the existence of the legal violation or violations, it shall rule on the trade union organization’s claim within thirty (30) working days by a judgment enforceable with immediate effect, notwithstanding any appeal, ordering:

• The annulment of the decision of dismissal, removal, or termination of the contractual relationship.
• The obligation of the appointing authority to reinstate the unionized worker concerned by the dismissal, removal, or termination, with reinstatement to the same workplace and the same position, or to another position equivalent in remuneration and compatible with the worker’s qualifications.
• Any delay in the execution of the judicial decision relating to reinstatement shall result in a coercive fine imposed on the appointing authority, the amount of which shall not be less than the guaranteed minimum monthly wage for each day of delay in executing the judgment⁷, calculated from the date on which the appointing authority is notified by a judicial officer.
• Compensation for the harm suffered by the unionized worker concerned and by the trade union organization to which they belong as a result of the appointing authority’s violation of the provisions of Law No. 23-02, such compensation being mandatory rather than discretionary where claimed by the trade union organization.

II.2. Protection of Unionized Wage Workers in the Economic Sector

The Algerian legislator, through Trade Union Law No. 23-02 and labor law, also granted special protection to wage workers in the economic sector who are members of workers’ trade unions. This will be examined through the following two requirements:

• 2.1 Protection by the Labor Inspector for Unionized Wage Workers in the Economic Sector
• 2.2 Protection under Labor Law for Unionized Wage Workers in the Economic Sector

II.2.1. Protection by Labor Inspector for Unionized Wage Workers in Economic Sector

The territorially competent labor inspector constitutes a pivotal link between the employer and workers, and between the employer and members of trade union organizations, in order to ensure the continuity of work, achieves economic development, and prevent labor disputes and strikes. Accordingly, the Algerian legislator, pursuant to Article 133 of Law No. 23-02, granted every unionized worker who has been subjected to injustice by the employer due to their trade union affiliation or activity the right to submit a written petition to the territorially competent labor inspector. Through this petition, the worker must substantiate their allegations with evidence and facts demonstrating the connection between the employer’s decision concerning them and their trade union⁸ affiliation or activity; otherwise, the territorially competent labor inspector shall consider the petition to be legally unfounded.

Within this requirement, attention will be devoted to the following branches:

• 2.1.1 The Decision of the Territorially Competent Labor Inspector on the Unionized Worker’s Petition
• 2.1.2 The Decision of the Labor Inspector on the Employer’s Justification Letter for the Dismissal of the Unionized Worker
• 2.1.3 Procedures for Investigating the Relationship between Dismissal and Trade Union Affiliation or Activity

II.2.1.1. The Decision of the Regionally Competent Labor Inspector on the Trade Union Worker’s Petition

After receiving the petition submitted by the trade union worker, the regionally competent labor inspector verifies the substance of the claimant’s allegations, particularly the relationship between the employer’s decision and the worker’s trade union activity or affiliation. The inspector ultimately reaches one of the two decisions provided for in Articles 133 to 144 of Law No. 23-02 relating to trade union activity. This will be addressed as follows:

• 2.1.1.1 The decision establishing the lack of grounds for the allegations of the aggrieved trade union worker
• 2.1.1.2 The decision establishing the validity of the allegations of the aggrieved trade union worker

II.2.1.1.1. The Decision Establishing the Lack of Grounds for the Allegations of the Aggrieved Trade Union Worker

• After the submission of a written petition by the trade union worker to the regionally competent labor inspector, through which the worker substantiates his allegations by means of evidence and facts linking the employer’s decision concerning him to his trade union affiliation or activity, the inspector undertakes an investigation. This investigation may lead to the refutation of all evidence and allegations, ultimately resulting in a decision that the allegations of the aggrieved trade union worker are unfounded.
• The regionally competent labor inspector notifies, in writing, the decision establishing the lack of grounds for the allegations of the aggrieved trade union worker to:
  • The trade union worker concerned by the grievance petition;
  • The trade union organization to which the trade union worker concerned by the grievance petition belongs.

The legislator specified, in the second paragraph of Article 134, that the notification period is fifteen (15) working days from the date of the decision establishing the lack of grounds. However, the legal loophole here lies in the absence of any specification of the time limits for the investigation itself, namely the period extending from the date of submission of the written petition by the trade union worker to the regionally competent labor inspector until the date on which the latter determines the results of the investigation. This lack of specification may open wide the door to negative administrative bureaucracy.

II.2.1.1.2. The Decision Establishing the Validity of the Allegations of the Aggrieved Trade Union Worker

• After the submission of a written petition by the trade union worker to the regionally competent labor inspector, through which the worker substantiates his allegations by means of evidence and facts linking the employer’s decision concerning him to his trade union affiliation or activity, the inspector undertakes an investigation that may lead to the confirmation of such evidence and allegations, ultimately resulting in a decision establishing the validity of the allegations of the aggrieved trade union worker.
• The regionally competent labor inspector issues a formal notice to the employer concerned by the unlawful decision taken against the aggrieved trade union worker, requiring the annulment of the unlawful decision within a period not exceeding eight (8) days.
• In the event that the employer concerned fails to comply with the decision of the regionally competent labor inspector and does not annul the unlawful decision within the eight-day period, the inspector proceeds to:
  • Draw up a report of violation against the employer;
  • Draw up a report of non-compliance with the formal notice, copies of which are delivered as follows:
• One copy to the trade union worker concerned by the unlawful decision due to its connection with his trade union affiliation or activity;
• One copy to the trade union organization to which the trade union worker concerned by the unlawful decision belongs.

The purpose of delivering these copies is to enable the trade union worker harmed by the employer’s unlawful decision to resort to labor law by initiating individual dispute settlement procedures, pursuant to the second paragraph of Article 136 of Law No. 23-02 relating to trade union activities. Accordingly, and with reference to Article 135 of the same law, which allows a trade union worker in the economic sector who contests the decision of the regionally competent labor inspector establishing the lack of grounds for his petition—due to the absence or insufficiency of evidence or the lack of convincing probative value linking the employer’s decision to trade union affiliation or activity—to resort to labor law through individual dispute settlement procedures.

It may be observed that the Algerian legislator, pursuant to the second paragraph of Article 136 of Law No. 23-02 relating to trade union activities, has erred from several perspectives:

• In this case, the legislator has put the employer’s power above that of the regionally competent labor inspector, even though the latter’s decision is based on an investigation into the trade union worker’s claims of discriminatory behavior by the employer, which is what the employer’s decision was based on. The inspector only writes two reports: one about the employer breaking the law and the other about not following the formal notice. So, what is the point of a formal notice if the only thing that happens is a theoretical report? This is especially true if the person who was hurt only does this step.
• The legislator has equated substantiated allegations with unsubstantiated allegations made by trade union workers in their grievance petitions regarding the validity and lawfulness of the employer’s decision, thereby equating true and legitimate allegations with false allegations. Ultimately, even the holder of a genuine claim may fail to obtain his right if the employer does not comply with the formal notice issued by the competent labor inspector, in which case the inspector merely records non-compliance.
• This equivalence negatively affects trade union activity, trade union affiliation, and trade union freedom in the workplace.
• The consequence of the employer’s failure to comply with the formal notice of the regionally competent labor inspector should, more appropriately, be the consequence of non-compliance with decisions of the administration acting as an authority.
• It would have been more appropriate to open the way for fines or judicial proceedings in favor of the trade union worker harmed by the employer’s unlawful decisions taken on a discriminatory basis linked to trade union activity or affiliation.

The two aspects for which the legislator may be excused regarding this shortcoming are:

• That it was intentionally adopted in order to preserve the economic fabric and economic development, insofar as the employer’s discriminatory decision did not reach the level of dismissal from employment or termination of the employment contract; otherwise, deterrent measures would have been taken against the employer to dissuade him from a decision based on discrimination related to trade union affiliation or activity.
• The avoidance of premature recourse to judicial proceedings as long as other stages remain available under labor law, such as the stage of individual labor dispute settlement and the subsequent procedures that follow.

II.2.1.2. The labor inspector’s decision regarding the employer’s justification letter for the dismissal of a trade unionized worker

Pursuant to Articles 132 and 137 of Law No. 23-02 on trade union activities, an employer who has decided to dismiss or remove a worker with trade union affiliation on the grounds of the commission of a serious misconduct must, prior to initiating any such procedure, notify by registered letter with acknowledgment of receipt each of the following:

• The worker affiliated with a trade union, for information
• The trade union organization to which the worker concerned by the dismissal or removal procedures belongs, for information
• The territorially competent labor inspector, where such letter constitutes formal notification to the latter to initiate an investigation into the matter

The employer must attach to the registered letter with acknowledgment of receipt the following:

• All documents evidencing the serious misconduct committed by the worker benefiting from the protection afforded by Law No. 23-02 on trade union activities
• A detailed account of all facts justifying the dismissal or removal
• A detailed description of all circumstances surrounding the facts justifying the dismissal or removal

II.2.1.3. Procedures for investigating the relationship between dismissal and trade union affiliation or activity

Pursuant to Article 138 of Law No. 23-02 on trade union activities, the territorially competent labor inspector conducts an investigation into the dismissal or removal within a period of eight (8) days, starting from the first working day following notification by registered letter. On the basis of this investigation, the attached documents, and on-site inquiries, the inspector reaches one of the following determinations:

• A decision stating that the justification for dismissal is of a purely professional nature; or
• A decision establishing a link between the professional dismissal and trade union affiliation or activity.

In the event that the labor inspector determines the existence of a link between the professional dismissal and trade union affiliation or activity, the territorially competent labor inspector issues a formal notice to the employer concerned within eight (8) working days from the date of notification of such notice, requiring the employer to:

• Revoke the decision to dismiss the protected worker
• Reinstate the protected worker in his or her position
• Restore all rights of the protected worker

A copy of the same formal notice is delivered to:

• The protected worker
• The trade union organization to which the worker belongs

Pursuant to Article 140 of Law No. 23-02 on trade union activities, if the employer concerned fails to comply with the formal notice issued by the territorially competent labor inspector within the prescribed eight (8) days by revoking the dismissal decision and reinstating the protected worker, the inspector shall:

• Draw up a report of violation against the employer
• Draw up a report of non-compliance with the formal notice, copies of which shall be delivered as follows:
• One copy to the trade unionized worker concerned by the unlawful decision linked to his or her trade union affiliation or activity, within a period not exceeding three (3) working days from the date of preparation of the report, for use before the competent court
• One copy to the trade union organization to which the trade unionized worker concerned by the unlawful decision belongs, within a period not exceeding three (3) working days from the date of preparation of the report, for use before the competent court

The reason for giving these copies is to let the trade unionized worker who was hurt by the employer’s illegal decision, which was to fire them, go to the labor court for help. The trade union organization that the workers belong to can also take the same action because it has the right to protect its members, defend their rights, and represent them in court.

But according to Article 141 of Law No. 23-02 about trade union activities, the Algerian government says that a worker who was fired in violation of this law must try all other ways to settle the dispute before going to court. These include the procedures for preventing and settling individual disputes that are set out in labor law and in the founding document of the workers’ trade union organization to which the worker belongs.

This implicitly indicates a connection between trade union law and labor law, which benefits the internal stability of economic institutions. This is shown by the fact that all available ways to settle a dispute should be used before going to court. If a protected worker who has been fired or the trade union organization they belong to takes legal action against the employer for breaking Trade Union Law No. 23-02, which protects workers from being fired because of their union membership or activity, the court will decide within thirty (30) working days and issue a judgment that is immediately enforceable, even if there is an appeal:

• Annulment of the decision of dismissal or termination of the employment contract.
• Obligation upon the employer to reinstate the protected worker concerned by the dismissal or termination, in the same workplace and in the same position, or in another position with equivalent remuneration and compatible with his qualifications.
• Any delay in the enforcement of the judicial ruling ordering reinstatement shall give rise to a coercive fine imposed on the employer, the amount of which shall not be less than the guaranteed minimum monthly wage for each day of delay in enforcement⁹, starting from the date on which the employer is notified by a judicial officer.
• Retention of all acquired benefits as of the date of dismissal from employment, in particular entitlement to financial compensation not less than the remuneration, or the remaining unpaid portion thereof, due from the employer for the entire period during which the employment relationship was suspended until the date of effective reinstatement.

The Algerian legislator did not, in Articles 141 and 142, refer to compensation for the damage suffered by the protected salaried worker as a result of the employer’s violation of the provisions of Law No. 23-02, in contrast to the express reference made in respect of civil servants, contractual employees of administrative institutions, or administrative agents. This omission may be considered an oversight; nevertheless, the right of the protected worker in the economic sector to claim compensation remains intact in the event that he seeks redress for the material and moral damage suffered as a result of the employer’s breach of legal provisions.

II.2.2. Protection Afforded by Labor Law to Unionized Salaried Workers in the Economic Sector

Pursuant to Article 135 of Law No. 23-02 relating to trade union activities, a unionized salaried worker in the economic sector who contests the decision of the territorially competent labor inspector refusing to register his complaint, due to the absence, insufficiency, or lack of persuasive evidentiary value of proof establishing a link between the employer’s decision and trade union affiliation or activity, may have recourse to labor law by resorting to individual dispute settlement procedures.

III. Penal Provisions Regulating Trade Union Activity

The Algerian legislator enacted a set of penal provisions addressing certain violations committed in breach of the mandatory rules of Law No. 23-02 relating to trade union activity. These violations are recorded by labor inspectors. Through an analysis of these punitive provisions, they may be classified as follows:

• 1 Sanctions Contributing to the Protection of Freedom of Trade Union Activity
• 2 Sanctions Contributing to the Regulation of Trade Union Activity

III.1. Sanctions Contributing to the Protection of Freedom of Trade Union Activity

Sanctions contributing to the protection of freedom of trade union activity are, for the most part, directed against the stronger party, namely the employer, whether in the public or private sector. This is because freedom of trade union activity is negatively affected by the practices of employers against trade union organizations, trade union branches, or trade union delegates.

Most of the sanctions contributing to the protection of freedom of trade union activity are embodied in five penalties:

First: Pursuant to Article 149 of this law, the legislator imposed a fine ranging from 100,000 to 200,000 Algerian dinars on anyone who commits the following acts:

• Interference in the management of a representative trade union organization by any act that undermines its independence.
• Combining the exercise of a trade union mandate with a mandate within the leadership bodies of a political party.
• Causing harm to a worker due to their trade union affiliation or activity, particularly in relation to:
• Recruitment
• Promotion
• Transfer
• Vocational training
• Social benefits
• Disciplinary procedures

The penalty is doubled in the event of recidivism.

Second: A fine ranging from 50,000 to 100,000 Algerian dinars is imposed on anyone who obstructs trade union freedom or the right to exercise trade union activity. In the event of recidivism, the offender is punished by imprisonment from thirty (30) days to six (6) months and a fine ranging from 100,000 to 200,000 Algerian dinars, or by one of these penalties, pursuant to Article 153 of Law No. 23-02 relating to trade union activity.

Third: Pursuant to Article 158 of Law No. 23-02 relating to trade union activity, a fine ranging from 100,000 to 200,000 Algerian dinars is imposed on anyone who obstructs the exercise of the trade union right through:

• Discriminatory practices
• Pressure
• Threats
• Any conduct hostile to the trade union organization

In the event of recidivism, the penalty is doubled.

Fourth: Pursuant to Article 156 of Law No. 23-02 relating to trade union activity, the legislator imposed a penalty of imprisonment from three (3) months to six (6) months and a fine ranging from 50,000 to 100,000 Algerian dinars on any person who obstructs the establishment or functioning of the leadership or administrative bodies of a trade union organization. In the event of recidivism, the penalty is doubled.

Fifth: Pursuant to Article 157 of Law No. 23-02 relating to trade union activity, the legislator imposed a fine ranging from 50,000 to 100,000 Algerian dinars on any employer who deducts trade union contributions from workers’ wages in order to pay them to the trade union organization to which they belong. In the event of recidivism, the penalty is doubled.

III.2. Sanctions Contributing to the Regulation of Trade Union Activity

As for the sanctions contributing to the regulation of trade union activity, the Algerian legislator provided for them under Law No. 23-02 relating to trade union activities, with the aim of regulating conduct that poses a significant risk to the economy, public security, or public order.

Most of these sanctions contributing to the regulation of trade union activity are embodied in five penalties:

First: Pursuant to Article 150 of the same law, the legislator imposed a fine ranging from twenty thousand (20,000) to fifty thousand (50,000) dinars for any affiliation with international, continental, or regional trade union organizations without notifying the competent administrative authorities within the time limits specified in Law No. 23-02.

Second: Imprisonment from three (3) months to six (6) months and a fine ranging from fifty thousand (50,000) to one hundred thousand (100,000) dinars, or either of these penalties, for any person who uses the revenues of the organization to achieve purposes contrary to the objectives of the trade union organization¹⁰, pursuant to Article 151 of the same Law No. 23-02.

Third: Imprisonment from six (6) months to one (1) year and a fine ranging from one hundred thousand (100,000) dinars to two hundred thousand (200,000) dinars in the event of accepting donations or bequests from foreign trade union organizations or bodies without prior approval from the competent administrative authorities, pursuant to Article 152 of the same Law No. 23-02.

Fourth: Pursuant to Article 155 of the same Law No. 23-02, the legislator imposed a penalty of imprisonment from three (3) months to six (6) months and a fine ranging from twenty thousand (20,000) to fifty thousand (50,000) dinars, or either of these penalties, on anyone who obstructs the enforcement of a judicial ruling¹¹ relating to:

• The suspension or freezing of the activity of a trade union organization;
• The dissolution of a trade union organization.

Fifth: Anyone who continues or contributes to the holding of meetings of a trade union organization that is subject to suspension or dissolution pursuant to a judicial ruling is subject, under Article 154 of the same Law No. 23-02, to imprisonment from three (3) months to six (6) months and a fine ranging from twenty thousand (20,000) to one hundred thousand (100,000) dinars, or either of these penalties.

1. Constraints On Trade Union Freedom

The Algerian government added fifteen articles to Law No. 23-02¹², which deals with trade union organization. These articles say that trade union freedom is protected by the Constitution in a way that doesn’t allow for violations, delays in the formation of trade union entities, or interference with their freedom of activity. It is okay to interfere with trade union activities in different ways as long as those activities are not against the law in Algeria or the laws that govern trade union organization.

Article 69 of the Algerian Constitution of 2020 guarantees the right of workers and employers to join a union. According to Article 34 of the same Constitution, the constitutional legislator says that freedoms and rights can only be limited or taken away if there is a legal reason for it¹³, such as:

• The preservation of public security;
• The preservation of public order;
• The protection of national territorial integrity;
• The protection of the unity of the people and the unity of the nation;
• The preservation and protection of the constants of national identity¹⁴.

The constitutional legislator also set out the overall objectives sought through the protection of the fundamental rights and freedoms of citizens in Article 35 of the 2020 Constitution, which provides for the removal of all factual, legislative, regulatory, and bureaucratic obstacles in order to achieve¹⁵:

• Equality among all citizens;
• The openness of the Algerian citizen;
• The participation and inclusiveness of the citizen in political life;
• The participation and inclusiveness of the citizen in economic life;
• The participation and inclusiveness of the citizen in social life;
• The participation and inclusiveness of the citizen in cultural life.

Accordingly, within this chapter, attention will be devoted to the following subsections:

• 1 The legal freedoms granted to trade union organizations;
• 2 Unlawful activities under trade union law;
• 3 The legal termination of the activity of a trade union organization.

IV.1. Legal freedoms granted to trade union organizations

The legal freedoms granted to trade union organizations may be derived from the Algerian Constitution of 2020 and from the legal amendment governing trade union organization No. 23-02. These freedoms are essentially embodied in the following:

• Freedom to establish a trade union organization, regardless of its nature, pursuant to the legal amendment governing trade union organization No. 23-02¹⁶, is guaranteed to all persons, except where expressly excluded by a specific legal provision for the necessity of protecting security, national territorial unity, and the preservation of public order.
• Freedom to join trade union organizations.
• Freedom to withdraw from trade union organizations.
• Freedom to stand for elective positions within trade union organizations.
• Freedom of activity of trade union organizations, insofar as such activity does not contravene the 2020 Constitution or the legal amendment governing trade union organization No. 23-02. Accordingly, as a general rule, no person is permitted to interfere in the activities of trade union organizations pursuant to Article 8 of the legal amendment governing trade union organization No. 23-02.
• Freedom to enact and amend the statutes of any trade union organization in a manner that serves its objectives and does not conflict with the 2020 Constitution or the legal amendment governing trade union organization No. 23-02.
• Freedom to engage in cultural and economic activities, pursuant to the second paragraph of Article 15 of the legal amendment governing trade union organization No. 23-02, as a general rule¹⁷.
• Freedom of individual members of trade union organizations to join political parties, as indicated by the legislator at the end of the second paragraph of Article 12 of the legal amendment governing trade union organization No. 23-02, as a general rule.

Article 9 of the legal amendment governing trade union organization No. 23-02 was passed by the legislator to make sure that work runs smoothly, that people can do what they want, and that people can express their opinions within trade union organizations. This article says that no member can hold two leadership positions at the same time, one in a trade union organization in a given administration and the other in the same administration, because of incompatibility and conflict of interest.

It is against the law for an employer to punish trade union members in any way, either directly or indirectly, for exercising their rights and freedoms within the institution. This includes, among other things, pay, vacation time, hiring, promotions, training, moving around, transfers, stipends, internships, and all kinds of benefits. Article 10 of the legal amendment governing trade union organization No. 23-02 says that any disciplinary action related to trade union activity is also not allowed.

Also, it is against the law for an employer or a leader in an organization to make any threats, either directly or indirectly, against union members in order to stop or block union activity. Article 11 of the legal amendment governing trade union organization No. 23-02 says that this is okay. In these situations, people who feel threatened or hurt can use all the legal options available to them under labor law, individual and collective labor agreements, and the institution’s own rules. These options range from filing a complaint to going on limited strikes and even open-ended strikes. They can also take their case to the right court.

IV.2. Unlawful Activities under Trade Union Law

Criminal legality in Algerian legislation is based on the principle that there is no crime, no punishment, and no security measures except by virtue of a legal provision. From this perspective, the trade union legislator, through Law No. 23-02, identified the unlawful activities of trade union organizations and of the members of such organizations by means of mandatory legal rules. Moreover, in order to preclude any claim of ignorance, the legislator required the leadership of these organizations to incorporate such unlawful activities into their constituent statutes. Within this chapter, these issues will be addressed through the following requirements:

• 2.1 Unlawful activities of trade union organizations
• 2.2 Unlawful activities of members of trade union organizations
• 2.3 Mandatory inclusion of unlawful activities

IV.2.1. Unlawful Activities of Trade Union Organizations

Unlawful activities of trade union organizations may be inferred from the Algerian Constitution of 2020 and from the legislative amendment to trade union organization under Law No. 23-02, particularly from the content of Articles 12, 13, 14, and 15. From these provisions, the following may be derived:

• The illegality of trade union organizations engaging in political activities, where the penalty for such practice may reach the dissolution of the trade union organization.
• The prohibition on the trade union organization’s explicit or implicit¹⁸ affiliation with any political party, association, or grouping holding political views or objectives, whether within or outside the country.
• The prohibition on the trade union organization’s explicit or implicit affiliation with any pressure group or association, whether within or outside the country.
• The prohibition on the trade union organization’s receipt of any financial support or privilege from political parties or political organizations, regardless of the motive¹⁹.
• The prohibition on any explicit or implicit association between the name of the trade union organization and the names of political parties or associations20.
• The prohibition on any explicit or implicit linkage between the activities of the trade union organization and the activities of political parties or associations²¹.
• The prohibition on any explicit or implicit linkage between the objectives of the trade union organization and the objectives of political parties or associations²².

IV.2.2. Unlawful Activities of Members of Trade Union Organizations

Even though the Algerian government had strict rules about how trade unions and political parties could work together, members of trade unions were not subject to these rules. In general, they are allowed to be members of both a political party and a trade union. The end of the second paragraph of Article 12 of Law No. 23-02’s amendment to trade union organization makes it clear that trade union members are free to join political parties. But there is an exception for people who hold both a leadership position in a trade union and a leadership position in a political party.

Because of the sensitive nature of their roles, such as founding members and leaders²³, the Algerian government put certain trade union members under a set of rules. According to the 2020 Constitution and the legislative change to trade union organization under Law No. 23-02, the Algerian government made the following requirements for founding or leadership members of trade union organizations:

• The obligation of founding and leadership members to maintain neutrality with regard to the political orientations of natural persons, regardless of their orientation or objectives, on all occasions, particularly during electoral events.
• The obligation of founding and leadership members to maintain neutrality with regard to the political orientations of political parties, regardless of their orientation or objectives, on all occasions, particularly during electoral events.
• The prohibition on combining a leadership mandate within a political party with a leadership mandate within a trade union organization. This prohibition is intended to prevent negative influence on the trade union organization, which could otherwise be diverted to serve political party programs and objectives, and to prevent adverse effects on the protection and defense of the rights of the organization’s members, which could create an atmosphere of hostility and

animosity detrimental to institutional activity.

IV.2.3. Mandatory Inclusion of Unlawful Activities

In order to prevent certain individuals²⁴—particularly those with a limited level of education—from invoking ignorance of trade union law, the Algerian legislator provided, through the first and second paragraphs of Article 15 of the amended Trade Union Law No. 23-02, for the mandatory codification of unlawful activities committed by members of trade union organizations as natural persons, as well as by the trade union organization as a legal person, within the following instruments:

• The statutes of the organization
• The code of ethics of the organization
• The internal regulations of the organization

Members of the leadership of trade union organizations may further reinforce the discharge of their civil or criminal liability for any unlawful activities by issuing awareness-raising notices and publications as a preliminary measure prior to initiating disciplinary procedures pursuant to the organization’s code of ethics, which is generally provided for in the statutes of the trade union organization.

IV.3. Legal Termination of the Activity of the Trade Union Organization

The legislative authority passed Trade Union Law No. 23-02, which was published in Official Gazette No. 19 on May 2, 2023. The goal of this law is to regulate all trade union activities in order to keep public order. The executive branch, on the other hand, makes sure that this law is carried out legally and without breaking any of its mandatory rules, also in the interest of public order. However, the leadership of workers’ or employers’ trade unions may act in ways that break the law and go against the rules of this law, which could put the employer at risk of service delivery or production problems and possibly even disrupt public order. In these situations, the judicial authority steps in to fix the problem with public order, which could mean putting the trade union organization on hold or even shutting it down. The following two requirements will take care of this:

• 3.1 Suspension of the Activity of the Trade Union Organization
• 3.2 Dissolution of the Trade Union Organization

IV.3.1. Suspension of the Activity of the Trade Union Organization

Through Trade Union Law No. 23-02, the Algerian government made it clear that all trade union activities, whether formal or informal²⁵, are free and independent. So, even before they are set up, trade union groups are connected to the courts because the list of founding members is kept in a register stamped and certified by the right court. Furthermore, even if a trade union organization does something that goes against the Constitution or the trade union law mentioned above, no government body has the power to stop it from doing its work. The organization that gave it accreditation can’t even stop it from doing business. At first, the administration only has the power to send a formal notice telling the organization to stop doing anything illegal. If the organization doesn’t stop doing what it’s doing or fix the problems that were reported within the time limit, the administration will file a reasoned action with the appropriate judicial authorities asking for the organization’s activities to be stopped²⁶.

As stated in the second paragraph of Article 63, the judicial authority must make a decision on the suspension action that is immediately enforceable, regardless of whether or not there is an appeal. The judicial ruling on suspension may lead to either the acceptance or rejection of the request; in both scenarios, the competent judge delivers an enforceable judgment, regardless of the reasons presented by the challenging party, whether it be the relevant administration or the trade union organization facing suspension.

The cases specified by the Algerian legislator that justify the suspension of the activity of a trade union organization are as follows:

• Engaging in activities other than those provided for in Trade Union Law No. 23-02.
• Engaging in activities other than those provided for in the organization’s statutes.
• Failure to comply with the legislative provisions of Trade Union Law No. 23-02.
• Failure to comply with the regulatory provisions²⁷ forming part of the trade union legal framework.
• Failure to comply with the provisions set out in the organization’s statutes.
• Failure to comply with the provisions set out in the organization’s internal regulations.
• Failure to request prior authorizations from the competent administrative authorities.
• Failure to notify the competent administrative authorities²⁸ of amendments to the organization’s statutes.
• Failure to notify the competent administrative authorities of amendments to the organization’s internal regulations.

The Algerian legislator did not provide, under Trade Union Law No. 23-01, for the possibility of initiating public criminal proceedings with regard to the suspension of the activity of trade union organizations as legal persons.

IV.3.2. Dissolution of the Trade Union Organization

The dissolution of a trade union organization signifies the termination of its legal personality, by virtue of which its leadership had represented it before employing bodies, the competent administrative authorities, judicial bodies, and other entities at both the national and international levels. Some legal doctrine holds that its name continues to subsist after dissolution until the final liquidation of its financial resources, both movable and immovable. In view of the multiplicity of grounds for dissolution, this section will be examined through the following branches:

• 3.2.1 The concept of dissolving a trade union organization
• 3.2.2 Grounds for judicial dissolution of a trade union organization
• 3.2.3 Grounds for non-judicial dissolution of a trade union organization
• 3.2.4 Consequences relating to the devolution of the assets of the dissolved trade union organization

IV.3.2.1. the Concept of Dissolving a Trade Union Organization

The dissolution of a trade union organization constitutes a suspensive measure affecting all its activities, acts, affiliations, representations, powers, and all its former attributes. Nothing remains thereof except the continued use of its name until the completion of the liquidation of its financial estate, both movable and immovable. This measure may be voluntary, by the will of its members, or compulsory, through the intervention of the judicial authority as a general rule, or exceptionally through the intervention of the administrative authority.

IV.3.2.2. Grounds for Judicial Dissolution of a Trade Union Organization

Pursuant to Articles 64 and 65 of Law No. 23-02 relating to trade union activity, a trade union organization may be dissolved either voluntarily or judicially. Voluntary dissolution is carried out in accordance with the substantive and procedural rules governing dissolution as set forth in the organization’s basic statute. Judicial dissolution, on the other hand, is effected through an action brought by the competent administrative authorities where the trade union organization subject to dissolution has engaged in any of the following acts:

• Violation of the objectives established for the creation of trade unions as set forth in Law No. 23-02 relating to trade union activity;
• Violation of the provisions of Law No. 23-02 governing the relationship between the organization and political parties²⁹;
• Failure of the trade union organization to engage in any effective activity related to the objectives of its establishment for a period of three (3) years;
• Incitement to violence;
• Engagement in threats;
• Any unlawful act accompanied by a violation or attempted violation of workers’ rights;
• Refusal to comply with judicial authorities;
• Refusal to enforce judicial rulings³⁰;
• Unlawful strike, particularly where it is detrimental to the functioning or continuity of public service;
• Repetition of the same violations that were the subject of a judicial ruling suspending the activity of the trade union organization;
• Acceptance of unlawful donations or bequests³¹;
• Any violation constituting a threat to public order.

The Algerian legislator did not require the relevant administrative authorities to give a trade union organization that committed any of the above-mentioned acts a reasoned prior warning before starting legal action in the appropriate courts to decide whether or not to dissolve the organization. Instead, they were free to choose whether or not to do this³². This method might change how fairly existing trade union groups are treated in the future. It would have been better to require the trade union organization that was about to be dissolved to get a reasoned warning and to give it a certain amount of time before going to court, just like the law says should happen when trade union activities are suspended or frozen for two years.

In cases where someone wants a trade union to be dissolved, the right court must also rule on the request for suspension by issuing a judgment that can be enforced right away, no matter what happens with the appeal. The last paragraph of Article 65 says this. A judge’s decision on suspension can either be accepted or rejected. In either case, the judge’s decision is final and cannot be appealed, no matter what the challenging party (the competent administration or the trade union organization that is about to be dissolved) says. As stated in the last paragraph of Article 66, judicial authorities may also order any precautionary measure while they wait for a final decision on the dissolution of the trade union organization in question.

IV.3.2.3. Non-judicial grounds for the dissolution of a trade union organization

A trade union organization may be dissolved through non-judicial procedures, such as:

• Voluntary dissolution of the trade union organization, by agreement of its members and following approval by its general assembly pursuant to Article 64 of Trade Union Law No. 23-02. The procedures for dissolution are carried out in accordance with the provisions set out in the union’s statutes.
• Legal dissolution of the trade union organization where so required by its statutes³³, such as trade unions established for a limited duration under their statutes. Upon the expiry of such duration, the trade union is dissolved, unless its statutes are lawfully amended prior to the expiry of that period in accordance with the provisions of Trade Union Law No. 23-02.
• Administrative dissolution of the trade union organization as permitted by the Constitution in exceptional circumstances, such as in a state of war.

IV.3.2.4. Consequences Relating to Devolution of the Assets of the Dissolved Trade Union Organization

Article 67 of Trade Union Law No. 23-02 says that the general rule for how the assets of a dissolved trade union organization should be divided up is that they must follow the rules set out in the statutes that were approved by the union’s general assembly and recognized by the appropriate administrative authorities³⁴. This rule does not apply if the courts decide otherwise in a reasoned decision.

In general, the assets of a trade union that has been dissolved cannot be given to its members in any way. However, as an exception, members who put money³⁵ into the trade union’s real estate assets can ask for that money back in the same condition that the property or properties belonging to the union are in. The second paragraph of Article 67 of Trade Union Law No. 23-02 says this.

Conclusion

Through this research, which examines the legal frameworks for the protection of trade union workers in both the public and private sectors under Algerian Law No. 23-02 on the exercise of the right to trade union activity, promulgated on 2 May 2023, it may be inferred that the Algerian legislator sought to strike a balance between two parties—namely, the administration and the trade unionist. To this end, the legislator afforded the unionized worker effective protection against the employer’s abuse of authority in particular, and against administrative arbitrariness more generally, in both the public and private sectors, while simultaneously preventing the exploitation of trade union status in a manner that would undermine order and workplace discipline within institutions across both sectors.

Among the most significant fundamental guarantees afforded by the Algerian legislator to trade unionists are the following:

• Protection extends to all workers affiliated with trade union organizations, regardless of whether the union is “representative.”
• The employer is subject to an absolute prohibition against imposing any sanction on a worker on grounds related to trade union activity or trade union membership.
• As a general rule, the transfer of a trade union delegate or any change in his or her position is prohibited, subject to an exception where justified by a legitimate operational necessity.
• No discrimination may be made, in all matters relating to work, between unionized and non-unionized workers in disciplinary procedures.
• Enhanced procedural safeguards apply where the employment relationship is affected (particularly in cases of dismissal or termination), in favor of specific categories such as trade union delegates, the representative of a non-representative trade union, collective bargaining representatives, and members of the union council within the employing entity.

Conversely, the legislator also imposed constraints on trade unionists which may give rise to punitive measures where they engage in certain conduct, including:

• Calling for a work stoppage through unlawful means outside the legal framework governing strikes;
• Manufacturing collective disputes or obstructing the activity of the employing entity;
• Resorting to threats, violence, coercion, or insults.

Even where a trade unionist is subjected to disciplinary action within the public service, the legislator considers the unionist to be the weaker party vis-à-vis the administration. Accordingly, public authorities are prohibited from imposing severe sanctions—such as removal from office or termination of contract—unless they first submit a reasoned notification to a joint committee (administrative/disciplinary) and obtain its prior binding opinion within a period of fifteen (15) days. The administration is further obliged to notify both the individual concerned and the relevant trade union organization of the decision within eight (8) days, and to provide the trade unionist with a copy or extract of the committee’s decision in order to verify compliance with its binding nature. Where the trade unionist considers the sanction to be arbitrary on grounds related to his or her trade union membership or activity, he or she may notify the labor inspector or seek judicial recourse. In such cases, the competent court may, by an immediately enforceable judgment, annul the sanction and award compensation for both material and moral damage. The legislator likewise recognizes that the right to bring legal proceedings is also vested in the trade union organization itself.

In the economic sector, the legislator assigns the labor inspector a pivotal role in mediating between the worker and the employer. The inspector may issue a formal notice requiring the employer to revoke any unlawful decision within eight (8) days; failing compliance, recourse to the judiciary becomes available. The court is required to rule within thirty (30) working days, ordering annulment and reinstatement, and imposing a coercive fine, while confirming the worker’s entitlement to retain the financial rights accrued during the period in which the employment relationship was suspended.

In the field of penal provisions governing trade union activity, the legislator has, on the one hand, imposed sanctions on employers in order to protect the freedom of trade union activity, safeguard its independence, and curb discrimination against workers on the grounds of their union involvement. On the other hand, disciplinary measures have been established against trade unionists where their conduct endangers public order. On this basis, trade union organizations are prohibited from engaging in political activity. Moreover, under no circumstances may the administration suspend the activity of any trade union organization; rather, it may only issue a prior warning and subsequently institute judicial proceedings. Where the judiciary orders dissolution, the assets of the trade union organization are liquidated in accordance with its statutes and by decision of the general assembly.

Notes

[1]. According to the Algerian legislator, pursuant to Law No. 23-02 relating to trade union activities, and with regard to the types of trade union organizations based on their membership rate, there are three types:

• Non-representative trade union organizations
• Representative trade union organizations
• Highly representative trade union organizations

2. 2. Representative trade union organizations have trade union delegates, whereas non-representative organizations have trade union representatives.
3. 3. What is meant by working days is the exclusion of weekends and official public holidays from the eight-day period specified for the summons.
4. These committees consist of:

• The Joint Administrative Committee
• The Joint Advisory Disciplinary Committee

5. The last paragraph of Article 146 of Trade Union Law No. 23-02.
6. Ibid.
7. The last paragraph of Article 146 of Trade Union Law No. 23-02.
8. Regardless of the content of the decision, if its apparent or implicit reason is trade union membership or trade union activity, including the following:

• Transfer from the position of employment
• Imposition of a disciplinary sanction of a lower grade
• Termination of the employment contract
• Conversion of an open-ended employment contract into a fixed-term contract

9. The last paragraph of Article 146 of Trade Union Law No. 23-02.
10. These objectives are set out in:

• Law No. 23-02 relating to trade union activity
• The statutes of the trade union organization
• The internal regulations of the trade union organization

11.This judicial ruling is subject to immediate enforcement.

12. From Article 5 to Article 11.
13. An example of this is the entirety of the legal texts governing the Ministry of National Defense in the field of rights and freedoms, which restrict certain rights and freedoms that are otherwise unrestricted in all legal codes regulating other ministerial sectors. Such restrictions are imposed for the purpose of protecting territorial integrity, national unity, and the preservation of security and public order.
14. Among these constants are: the nature of the system of governance, the language, and the religion.
15. Article 37 of the 2020 Constitution stipulates the rejection of all forms of discrimination in the field of rights and freedoms, and the constitutional legislator provided examples of such discrimination, including birth, race, sex, opinion, or any other personal or social condition or circumstance.
16. Types of trade union organizations according to the legal amendment to Trade Union Law No. 23-02:

• A basic (grassroots) trade union organization
• A federation
• A confederation
• A representative trade union organization
• A trade union branch

17. As an exception, if the cultural or economic field has a political orientation or is linked to pressure groups, engagement and interaction with it are prohibited.
18. 1 What is meant here by the Algerian legislator is the prohibition of two types of affiliation:

• Structural affiliation, whereby the trade union organization becomes an integral part of a political party.
• Functional affiliation, whereby the trade union organization becomes a tool exploited by a political party to achieve its objectives, which constitutes a threat to the stability of public and private institutions.

19. To avoid any type of future affiliations with political orientations or those that may negatively affect the functioning of economic, social, and cultural institutions.
20. This is as provided by the Algerian legislator in Article 12 of the legal amendment to Trade Union Law No. 23-02.
21. Ibid.
22. Ibid.
23. It is natural that the founding members initially occupy the leadership positions of the trade union organization, as they are the originators of the idea to establish the organization, the drafters of its statutes and internal regulations, and the supervisors of all preliminary procedures for obtaining accreditation for the trade union organization. However, as of the second electoral term and those that follow, the natural persons holding leadership positions change, particularly the president of the organization, who, under the legal amendment to Trade Union Law No. 23-02, is permitted only two electoral terms. Over successive terms, the founding members do not remain in place, and the leadership members of the same organization change.

Founding members nevertheless retain a degree of power and influence within the trade union organization. Although this influence differs from that of the leadership members, its nature is stronger. This is a factor that the Algerian legislator took into consideration in numerous provisions included in the legal amendment to Trade Union Law No. 23-02.

24. In fact, ignorance of the law is no excuse. This does not mean that individuals are required to be familiar with all legal codes; rather, they are only required to acquaint themselves with, and consequently bear responsibility for, the legal framework governing the field they enter. Thus, ignorance of traffic law is excused only for those who do not drive a vehicle, and ignorance of commercial law is excused only for those who do not engage in commercial activity. By the same reasoning, ignorance of trade union law is not excused for those who practice trade union activity.
25. Whether non-representative, representative, or most representative, and whether regional or national.
26. Articles 62 and 63 of Law No. 23-02 relating to trade union activity.
27. Regulation is subordinate legislation issued by the regulatory authority (the President of the Republic, the Prime Minister, or ministers), and it is generally considered to consist of legal texts implementing primary legislation, such as presidential decrees, executive decrees, and ministerial decisions. The latter do not contain provisions not stipulated in the primary legislation, nor are they submitted to Parliament in its capacity as the legislative authority.
28. These authorities vary according to the nature of the trade union organization. For example, the competent administrative authority with regard to provincial or municipal trade union organizations is the province, whereas with regard to national or inter-provincial trade union organizations, it is the Ministry of Labor.
29. These provisions are as follows:

• The illegality of a trade union organization engaging in political activities, as the penalty for such practice may extend to the dissolution of the trade union organization.
• The explicit or implicit non-affiliation of the trade union organization with any political party, association, or grouping holding political views or objectives, whether within or outside the country.
• The explicit or implicit non-affiliation of the trade union organization with any pressure group or association, whether within or outside the country.
• The prohibition on the trade union organization from receiving any financial support or advantage from political parties or political organizations, regardless of the reason.
• The explicit or implicit non-association of the trade union organization’s name with the names of political associations or parties.
• The explicit or implicit non-association of the trade union organization’s activities with the activities of political associations or parties.
• The explicit or implicit non-association of the trade union organization’s objectives with the objectives of political associations or parties.

30. Such as continuing trade union activity despite the issuance of a judicial ruling enforceable by law ordering the suspension of the trade union organization’s activity for a period of two years.
31. Its illegality due to its violation of the provisions set forth in Trade Union Law No. 23-02, as well as the provisions contained in the statutes and internal regulations approved at the constituent general assembly.
32. Article 65 of Law No. 23-02 relating to trade union activity: “……. The competent administrative authorities may, where appropriate, and in the event of a violation of one of the cases mentioned above, issue a formal notice to the concerned trade union organization in order to regularize its situation within the prescribed time limits.”
33. A trade union organization may be established:

• As a preliminary step toward the establishment of another union.
• It may also be established for the purpose of achieving a specific objective.
• It may likewise be established for a fixed period as stipulated in its statutes.

34. These authorities consist of:

• The authority of the Ministry of Labor with respect to all forms of national and inter-state unions.
• The authority of the Provincial Governor with respect to all forms of provincial and municipal unions.

35. This requires legitimate evidentiary documentation.

Disclosure statement

No potential conflict of interest was reported by the author.

References

Legislation

• Constitution of 2020, Official Gazette of the Algerian Republic, No. 82, 30 December 2020
• Law No. 23/08 of 21 June 2023 relating to the prevention and settlement of collective labor disputes and the right to exercise the right to strike.
• Trade Union Law No. 23-02, published in Official Gazette No. 29 on 2 May 2023.
• Trade Union Law No. 14.90

regulations

• People’s Democratic Republic of Algeria. (2023, October 17). Executive Decree No. 23-261 (Official Gazette of the People’s Democratic Republic of Algeria, No. 67).
• People’s Democratic Republic of Algeria. (2023, October 17). Executive Decree No. 23-362 (Official Gazette of the People’s Democratic Republic of Algeria, No. 67).
• People’s Democratic Republic of Algeria. (2023, October 17). Executive Decree No. 23-363 (Official Gazette of the People’s Democratic Republic of Algeria, No. 67).
• People’s Democratic Republic of Algeria. (2023, October 17). Executive Decree No. 23-364 (Official Gazette of the People’s Democratic Republic of Algeria, No. 67).

Books

• Latreche, A. (2024). Workers’ authority in Algeria between labor disputes law and trade union law. Arab Democratic Center (ADC).
• Baali, M. S. (2000). Labour legislation in Algeria: General introduction and legal texts. Dar Al-Oloum for Publishing and Distribution.
• Habib, W. S. (2006). Workers’ trade union rights and freedoms. Dar Al-Alam Al-Thalith.

Articles

• Lévesque, C., & Murray, G. (2010). Comprendre le pouvoir syndical : ressources et aptitudes stratégiques pour renouveler l’action syndicale. La Revue de l’Ires, 65(2), 41-65. https://doi.org/10.3917/rdli.065.0041
• Stahl, J.-H. (2005). La notion d’organisations syndicales les plus représentatives. Revue française de droit administratif (RFDA), 21(2), 919-965.