Informe definitivo - Informe núm. 48, 1961

1. 26. In a telegram and a letter both dated 17 February 1960, the Trade Union Federation of Officials (Casablanca) (Union syndicale des fonctionnaires) submitted a complaint to the I.L.O to the effect that the exercise of trade union rights had been violated in Morocco. In a letter of 29 February 1960 this complaint was communicated to the Government, which forwarded its observations in a communication of 18 April 1960.

A. A. The complainants' allegations

1. 27. The complainants allege that under existing legislation, first, the forces responsible for public order are not entitled to organise in trade unions, and second, the right to strike is denied to officials. The complainants consider that these provisions violate freedom of association.
2. 28. The Government's reply consists of two legislatives texts concerning trade unions on the one hand and the exercise of right of association by officials on the other. These are Dahir No. 1-57-119 of 18 hija 1376 (16 July 1957) and Decree No. 2-57-1465 of 15 rejeb 1377 (5 February 1958).
3. 29. Under article 2 of the first text, trade unions may be freely constituted, but an exclusion is made from the provisions of this article in respect of " employees responsible for ensuring the safety of the State and the defence of public order ". Similarly, article 4 of the decree concerning the right of association for officials provides that the provisions of the decree do not apply to employees responsible for ensuring the safety of the State and the defence of public order. The article continues: " the personnel of the police and auxiliary forces coming under the Ministry of the Interior among others may not, therefore, constitute trade unions ".
4. 30. During the discussion of the draft text of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), at the 31st (1948) Session of the International Labour Conference, a number of amendments were submitted on the scope of the Convention in the Committee on Freedom of Association and Industrial Relations to exclude the armed forces and the police from the scope of the Convention. In support of these amendments it was argued that most countries would not find it possible to ratify a Convention which required absolute freedom of association to be granted to members of the armed forces and the police, having regard to the responsibility of governments for defending the law and assuring the maintenance of public order. Having regard to the fact, however, that in several countries members of the police and at times even members of the armed forces have the right to organise, the Committee adopted a text which reserves to national laws and regulations the right to determine the extent to which guarantees provided for in the Convention shall apply to the armed forces and the police. The text in question is Article 9, paragraph 1, of the Convention, which reads as follows: " The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations."
5. 31. By this text it is clear that the Conference intended to leave to the judgment of each State the desirability of granting the right to organise to members of the armed forces and the police, the implication being that there is no obligation on States which have ratified the Convention to accord this right to the categories of workers concerned. In these circumstances, as this question is left by the Convention to the discretion of States Members, the Committee considers that it should not pursue the matter further.
6. 32. As regards the allegation relating to the denial of the right to strike to officials, it will be convenient also to refer to the relevant texts. It is correct that, under article 5 of Decree No. 2-57-1465 referred to above concerning the exercise of the right of association by officials, " officials and employees of public administrations, offices and establishments " are denied the right to strike. The article reads as follows: " In the case of all staff, any concerted stoppage of service or any act of marked indiscipline may be punished without regard to disciplinary safeguards."
7. 33. Furthermore, while Article 2 of Convention No. 87 (which provides that workers " without distinction whatsoever " shall have the right to establish organisations) accords the right of association not only to workers in the public sector but also to officials, the Convention makes no stipulation concerning the question whether officials should enjoy the right to strike. The only requirement of the Convention is that, like other workers, officials should enjoy the right to organise. This right is granted to them in Moroccan legislation by article 2 of Dahir No l-57-119 (" trade unions may be established among officials ") and by Decree No. 2-57-1465, article 1 of which reads as follows: " The right to organise is granted to officials and employees of public administrations, offices and establishments under the conditions and reservations set forth below." One of these reservations is prohibition of strikes.

B. B. The Committee's conclusions

1. 34. In a previous case the Committee considered that civil servants enjoying statutory terms and conditions are, in the majority of countries, denied the right to strike as a normal condition in the legislation governing their employment and that, therefore, there was no reason for it to give further consideration to this aspect of the question.
2. 35. For its part the Committee of Experts on the Application of Conventions and Recommendations has found that in certain countries organisations catering for specific categories of workers are more limited, from the point of view of their potential activities, than are other organisations; that such limitations are comprehensible in the case of public officials, whose conditions of employment are dependent on a status which leaves no possible scope for the negotiation of collective agreements; and that the same is true of the limitations imposed by public service regulations, legislation or court decisions, according to which officials acting as organs of the public power may not take part in strikes.