Informe definitivo - Informe núm. 199, Marzo 1980

1. 120. In a communication dated 12 June 1979, the Democratic Labour Confederation (CDT) presented a complaint of violation of trade union rights in Morocco. It furnished supplementary information regarding its complaint in a communication dated 11 July 1979. The Government in turn sent its observations in letters dated 18 December 1979 and 15 January 1980.
2. 121. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 122. In its complaint, the CDT explains that it is a central organisation of national trade unions, which was set up in November 1978 in accordance with the national legislation in force. It adds that it has become widely represented in various sectors, such as the postal services, education, the railways and the phosphate industry.
2. 123. The national trade unions affiliated to the CDT started taking steps to meet the demands of their members and, to that end, presented the administrations concerned with a list of demands for wage increases and certain social rights. Such steps often included genuine negotiations with ministers. According to the CDT, however, the Government did not consider it necessary to meet their demands n view of that situation various national trade unions resorted to organising strikes, for example, in the health sector on 7 March and 10 and 11 April 1979 and in the education sector on 5, 6, 7, 21, 23 and 24 February and 10 and 11 April 1979.
3. 124. The complainant organisation considers that, by organising such strikes, the trade unions concerned were exercising a right which has never been questioned. In this respect, the CDT maintains that article 14 of the Moroccan Constitution guarantees the right to strike and that, in practice, such right has been repeatedly exercised without calling forth any government reaction.
4. 125. The CDT goes on to state that, this time, the Government denied public servants the right to strike by virtue of ministerial Decree go. 57-1465 of 5 February 1958, and observes that this Decree predates the first Moroccan Constitution of 1962 which, just as those adopted subsequently, provided that the right to strike guaranteed to workers would be regulated by a law. Since no such law has ever been published, the CDT regards the right to strike as an unrestricted right and the texts regulating it adopted before the first Constitution as no longer in force. It also points out that, since the Decree of February 1958 applied only to such public servants as policemen, firemen, servicemen and magistrates, it cannot be applied to the entire public service.
5. 126. The CDT adds that the Government mobilised the entire police force to besiege the premises of the affiliated trade unions in all the towns in Morocco in order to prevent trade union meetings and gatherings. Dozens of trade unionists were arrested and the CDT's publications were produced in evidence during trials which the complainant organisation describes as prefabricated. Finally, the CDT alleges that immediately after the strikes, there were collective dismissals of a thousand militants.
6. 127. Together with its complaint, the CDT sent a list of 70 trade unionists in the teaching profession who were arrested and brought to trial and 708 teachers who were dismissed as a result of the strikes.
7. 128. In its communication of 11 July 1979, the CDT states that the strikes were amply justified by the consequences of the crisis affecting the country and the trends of the Government's economic and social policy and, in this respect, quotes official statistics on unemployment and wage levels. It also specifies that, of the 688 trade unionists arrested, some were maltreated and 230 were given sentences ranging from one month to two years' imprisonment with no possibility of remission, and that 708 teachers and 178 health service workers were suspended or dismissed. It supplies lists of the trade unionists affected by these measures and indicates the reasons the authorities gave for them which, in the majority of cases, were incitement to strike and, in certain cases, distribution of leaflets, resistance to authority, unauthorised assembly, interference with the right to work and breach of the peace.
8. 129. In its letter of 18 December 1979, the Government states first of all that no meeting held legally has been forbidden with regard to the strikes in the health and education sectors, it states that they gave rise to interference with the right to work and instances of breach of the peace and that the arrests of strikers were effected in accordance with the legislation in force. The offenders were brought to trial for acts punishable under Moroccan penal law. Throughout the proceedings, the accused were given the guarantees recognised by law. The cases were heard in open court and the accused were allowed to enter a defence and to appeal. The Government adds that no pressure was brought to bear on the accused by the judiciary, which is independent, honest and conscious of its responsibilities.
9. 130. With regard to the measures taken against the strikers, the Government observes that the public rights and freedoms guaranteed by the Constitution cannot be exercised in a disorganised manner. It is therefore the duty of the regulatory authorities to establish an organisational framework within which such freedoms can be exercised in harmony with the prevailing political, social and economic conditions.
10. 131. As far as the Government is concerned, it would be legally inconceivable that the laws and regulations predating the Constitution be abrogated and, pending legislation to organise the exercise of the right to strike guaranteed by the Constitution, leave a legal void which would prevent the smooth functioning of law and order in the country. It indicates that the legal text governing the exercise of trade union rights by public servants remains the ministerial Decree of 5 February 1958 and that section 5 of that Decree provides that, for any collective stoppage of work not connected with the attendance regulations, penalties will be imposed without any respect being had to the disciplinary guarantees. The Supreme Court concluded that this Decree was legal in a decision handed down on 17 February 1961. The Government also points out that, by Decree No. 319 of 7 April 1979, the Prime Minister made a decision, applicable to all public servants, on the regulations in force, including section 5 of the Decree of 5 February 1958. It goes on to recall the general principle requiring continuity of public services in all circumstances. Lastly, the Government notes that, in accordance with the legislation in force, the CDT has the right to appeal to the Supreme Court against the decisions to dismiss its members.
11. 132. In its letter of 15 January 1980, the Government transmits information supplied by the Ministry of National Education from which it appears that a first strike organised by the CDT for 48 hours in February was postponed after a ministerial Committee was created to study trade union demands. This Committee approved several claims in a memorandum transmitted to the Council of Ministers which accepted it on 16 March 1978. Although the trade unions were informed of this decision, a second strike was scheduled for 11 and 12 April 1978. A third strike was called on 5, 6 and 7 February 1979. The Government continues that previously numerous contacts had taken place with the National Teachers' Union to advise it of the advantages that had been granted. In addition, the Government notes that Morocco suffered a military attack between the date the strike was called and when it took place. Despite the Government's decision to continue the dialogue, a further strike of four days' duration was called for 21, 22, 23 and 24 February 1979. The dialogue was continuing and yet again the National Teachers' Union declared its willingness to call for further strikes. The Government attaches to its communication a document setting out the advantages gained by the various teaching personnel.

B. B. The Committee's conclusions

1. 133. The present case essentially concerns the strikes in the public service, notably the health and education sectors, during the year 1979. According to the complainants, these strikes, which lasted from one to three days, were called because of the failure of the authorities to meet the trade unions' demands for wage increases and certain social rights. The Government considered the strikes illegal under a regulation adopted in 1958. The authorities therefore proceeded to arrest a large number of trade unionists, over 200 of whom have been sentenced to terms of imprisonment, and to dismiss or suspend some 900 of the workers who went on strike. From the detailed information supplied by the complainants, it appears that, in the great majority of cases, the authorities gave incitement to strike as the reason for such measures in a more general statement, the Government states that the strikes gave rise to interference with the right to work and instances of breach of the peace.
2. 134. The Committee has repeatedly pointed out that the right of workers and their organisations to strike is generally acknowledged to be a legitimate means of defending their occupational interests and that, where this right is subject to restrictions or forbidden in the public service or essential services, adequate guarantees should be given to protect the workers thus deprived of an essential means of defending their occupational interests. The Committee has also indicated that restrictions should be offset by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards should be binding in all cases on both parties; once made, such awards should be fully and promptly implemented. Furthermore, the Committee considers it useful to recall the terms of Convention No. 151 concerning conditions of employment in the public service, adopted by the International Labour Conference in 1978, Article 7 of which provides that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters".
3. 135. In the case in point, the information supplied by the complainant and the Government on the negotiation which took place before the strikes is largely contradictory. According to the Government, they had reached agreement on the claims, whereas, according to the complainant, the Government was not aware of them. In these circumstances, it is difficult to determine whether the workers and their organisations have enjoyed the guarantees aimed at compensating for the prohibition on the right to strike. The Committee generally considers that recourse to procedures of conciliation and arbitration would have been of great help in preventing the conflict and creating more favourable conditions for the development of labour relations.
4. 136. The Committee also feels bound to point out, as it has in other cases, that mass arrests and dismissals of strikers involve serious risks of abuse and serious threats to freedom of association. Moreover, as on other occasions, it holds the view that an inflexible attitude in the application of excessively severe penalties to workers for going on strike could impair the development of labour relations. The Committee notes that, in the present case, the work stoppages were relatively short and that the information supplied by the Government does not mention any acts of violence or other such infringements of law and order committed by the strikers. In view of these considerations and those set out in the preceding paragraph, the Committee feels it would be advisable to take measures to review the situation of the imprisoned and dismissed workers.