Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

Article 1(d) of the Convention. 1. In its previous comments concerning the penalties applicable to public servants in the event of a strike, the Committee noted that, under the terms of section 5 of Decree No. 2-57-1465 of 8 February 1958 respecting the exercise of the right to organize by public servants, "any coordinated stoppage of work, any collective act of indiscipline may be punished without regard to the guarantees respecting discipline". The Committee noted the allegations of the Democratic Confederation of Labour (CDT) and the General Union of Moroccan Workers (UGTM) that the Government had recourse to the above Decree to threaten public servants and oblige them to work during strikes, and that in certain cases it had arrested teachers and health-care personnel. With regard to this matter, the Committee noted the statements by the Government representative to the Conference Committee in 1992 to the effect that section 5 of Decree No. 2-57-1465 of 8 February 1958 corresponds to the principle of the continuity of the public service. On this matter, the Committee refers to the explanations provided in paragraph 123 of its 1979 General Survey on the abolition of forced labour, in which it recalls that it is not incompatible with the Convention to impose penalties of imprisonment for participation in strikes in the civil service or other essential services, provided that such provisions are applicable only to essential services in the strict sense of the term, that is those whose interruption would endanger the existence or well-being of the whole or part of the population. The imposition of sanctions involving compulsory prison labour breaches a general prohibition of the right to strike in the public service (section 5 of Decree No. 2-57-1465 of 8 February 1958) is incompatible with the requirements of the Convention, which prohibits the use of forced or compulsory labour, including compulsory prison labour, as a punishment for having participated in strikes. 2. The Committee has also noted the allegations made by the Moroccan Labour Union (UMT) in 1994, that the Secretary-General of the UMT officially lodged a petition with the Moroccan Government to repeal section 288 of the Penal Code, which provides that "anyone who, through violence, the use of force, threats or fraudulent activities has caused or maintained, or endeavoured to cause or maintain, a coordinated stoppage of work, with the objective of achieving by force the raising or lowering of wages, or jeopardizing the free exercise of industry or work, shall be liable to a sentence of imprisonment of from one month to two years (...)", on the grounds that it violates the freedom of work. According to the UMT, section 288 of the Penal Code is frequently used by the courts to imprison members of the UMT on the grounds of their peaceful participation in strikes, the right to the exercise of which is nevertheless guaranteed by the Constitution. The UMT adds that the wording of section 288 is too general and that its systematic use constitutes a violation of the right to strike and a violation of the Convention, inasmuch as the Penal Code imposes compulsory labour on persons sentenced to imprisonment (section 28). The Committee notes the information and explanations provided by the Government with regard to the constitutional guarantees of the right to strike and the freedom of work. In the observations that it has made on the matters raised by the UMT, the Government states that the annual number of strikes (356 in 1994, with the participation of 28,551 workers) and the diversity of sectors in which strikes occurred in 1995 (railways, phosphate industry and health) illustrate that the right to strike is recognized as a basic right of workers to defend their economic and social interests, but that, when exercising the right to strike, workers are bound to respect other fundamental rights, such as the freedom of work, which is also guaranteed by the Constitution. With regard to section 288 of the Penal Code, the Government states that it constitutes a guarantee of the freedom of work and that the elements which violate this freedom are violence, threats and fraudulent activities. The Committee notes that the matters which have been raised in the allegations made by the trade union organizations refer to the penalties imposed, which involve compulsory labour as a punishment for having participated in strikes; the penalties imposed under the terms of Decree No. 2-57-1465 of 8 February 1958 respecting the exercise of the right to organize of public officials and sections 288 (violations of the freedom of work) and 28 (compulsory labour for those sentenced to prison terms) of the Penal Code. With regard to the imprisonment of persons who have participated in strikes, on the grounds of violations of section 288 of the Penal Code (violations of the freedom of work), the Committee notes the conclusions of the Committee on Freedom of Association in the case of the complaint against the Government of Morocco submitted by the UMT (Case No. 1724) in which the Committee recalled that "taking part in picketing and firmly but peaceably inciting other workers to keep away from their workplace cannot be considered unlawful" (Official Bulletin, Vol. LXXVII, 1994, Series B, No. 2, paragraph 367). The Committee also notes the frequent imposition of sentences of imprisonment upon workers who go on strike and notes in this respect the conclusions of the Committee on Freedom of Association in Cases Nos. 1687 and 1691 (complaints against the Government of Morocco, submitted by the UMT and the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF)), to the effect that "the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association" (GB.267/7, 267th Session (November 1996), paragraph 409). The Committee hopes that the Government will take the necessary measures as regards section 5 of Decree No. 2-57-1465 of 8 February 1958 respecting the exercise of the right to organize by public servants and section 288 of the Penal Code, to ensure that no form of forced or compulsory labour, including compulsory prison labour, is imposed in the circumstances covered by Article 1(d) of the Convention. The Committee requests the Government to supply information on the effect given in practice to section 5 of Decree No. 2-57-1465 of 8 February 1958 respecting the exercise of the right to organize by public servants and section 288 of the Penal Code, including the number of convictions over the past four years for violations of these provisions, and copies of court rulings that can define or illustrate their scope. The Committee notes article 14 of the Constitution (Dahir No. 1-92-155 of 9 October 1992, enacting the revised Constitution), under the terms of which "The right to strike remains guaranteed. An organic Act shall set out the conditions and forms under which this right may be exercised." The Committee requests the Government to indicate whether the organic Act respecting the conditions for the exercise of the right to strike envisaged under article 14 of the Constitution (right to strike) has been enacted. The Committee notes with interest, from the Government's report, that Dahir No. 1-94-288, of 25 July 1994, repealed the Dahir of 29 July 1935 which prohibited strikes that disturbed the public order and the respect due to the state authorities.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.