Demande directe (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

1. Article 1, paragraph 1, and Article 2, paragraphs 1 and 2, of the Convention. In its earlier observation concerning the freedom of public servants and career members of the armed forces to terminate their employment, the Committee noted that, under the terms of section 77 of the Dahir of 24 February 1958 establishing the General Conditions of Employment of the Public Service, the resignation of an official does not come into effect unless it is accepted by the authority within whose competence the power of appointment lies, and in the event of refusal by the competent authority the person concerned may bring the case before the Joint Administrative Committee, which issues a reasoned opinion for transmission to the competent authority. In this regard, the Committee notes the information provided by the Government to the effect that the criteria applied in accepting or rejecting a resignation request are the needs of the service and whether or not it is possible to find a similarly qualified replacement for the official who is resigning. Furthermore, since this is an administrative decision, a refusal of the resignation request, like any other administrative decision, can be challenged before the competent jurisdiction on grounds of exceeding authority.

Taking this information into account, the Committee considered in its 1979 General Survey on the abolition of forced labour (see paragraphs 67 to 73), that legislation under which workers may in emergency situations be prevented from leaving employment does not affect the observance of the Convention in so far as the power is limited to what is necessary to cope with cases of emergency within the meaning of Article 2, paragraph 2(d), of the Convention. In the opinion of the Committee, the worker's right to free choice of employment remains inalienable. The Committee therefore considered that legislation preventing an employee from terminating his employment by a reasonable period of notice has the effect of transforming a contractual relationship based on the will of the parties into service by compulsion of law and is thus incompatible with the Convention.

The Committee therefore requests the Government to amend the legislation with a view to restricting the possibility of preventing an official from leaving his or her employment to emergency situations, and to ensure the freedom of officials to terminate their employment by reasonable notice. In the meantime, the Committee hopes that the Government will communicate information on any decision in this matter by the jurisdictions in question. The Committee asks the Government to indicate in its next report the measures taken or planned and to provide a copy of the provisions governing the resignation of career officials.

2. Article 2, paragraph 1. Further to its previous direct request the Committee refers once again to section 329 of the Penal Code, which provides for a sentence of imprisonment of from one to six months for persons convicted of vagrancy. With particular regard to the comments made by the Committee in paragraphs 45 to 48 of the 1979 General Survey on the abolition of forced labour, relating to vagrancy, the Committee again requests the Government to supply detailed information on the application in practice of section 329 of the Penal Code and to provide a copy of any decision taken in implementation of this provision including the length of the sentence, and to indicate the number of persons concerned, so that it can assess whether the legislation and practice are in conformity with the Convention.