Rapport intérimaire - Rapport No. 320, Mars 2000

1. 699. The complaints in this case are contained in communications from the Moroccan Labour Union (UMT) dated 4, 25 and 27 September, 6 October and 20 December 1999. The Arab Maghreb Workers' Union (USTMA) and the International Confederation of Free Trade Unions (ICFTU) supported the UMT's complaint in communications dated 15 and 21 September 1999, respectively.
2. 700. The Government sent its observations in communications dated 21 October and 9 December 1999, and 29 February 2000.
3. 701. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 702. In its communication of 4 September 1999, the UMT reports acts of repression against workers who have exercised their right to strike. The UMT explains that while the workers of the AVITEMA factory were holding a legal strike on 1 September 1999, with a peaceful sit-in inside the factory, in protest against management's violation of labour legislation and protocols of agreement, the police intervened violently on Thursday, 2 September 1999 and placed 21 UMT activists under arrest, including seven women.
2. 703. The UMT adds in its communication dated 27 September 1999 that these trade unionists, whose names are given in a list attached to the complaint, were refused bail, imprisoned and sentenced on 24 September 1999 by the Court of First Instance of Rabat to terms ranging from four months' suspended sentence to eight months' imprisonment. The UMT alleges further that when they arrested these trade unionists, the police tied them up and tortured them inside the factory itself. The director of the factory also allegedly participated in torturing the strikers.
3. 704. In its communication dated 20 December 1999, the UMT states that 12 of the 21 trade unionists who were sentenced on 24 September 1999 are still in prison and that their appeal proceedings have been held up for no apparent reason until 28 December 1999. In addition, the UMT points out that about 100 of the former strikers had been prohibited from going back to work by their employers since 6 October 1999, when the strike officially ended. Despite the fact that the Ministry of Labour convened two meetings with the parties to the dispute, the employer refused to take part. Moreover, the Government has not taken any serious measures to enable the former strikers to return to work. On the contrary, the UMT asserts that the Government again called in the police, who intervened violently on 30 November 1999 against workers holding a peaceful sit-in in front of the factory gate demanding to be allowed to return to work and protesting against the recruitment of strike-breakers to keep the factory running.
4. 705. The second part of the UMT's complaint is contained in its communication of 25 September 1999. The UMT explains that in 1998 the seafarers of Morocco's ports presented a list of demands concerning freedom of association of fishermen, an increase in benefits, social insurance coverage and other matters relating to conditions of work. Faced with the unyielding attitude of the Ministry of Fisheries and the shipowners, the workers called a strike on 24 September 1998 in the southern Moroccan ports. The strikers had to wait 45 days for negotiations to begin.
5. 706. The UMT points out that following this strike a protocol of agreement was signed on 6 November 1998 with the Ministry of Fisheries, the shipowners, the local authorities and the fishermen's trade union, in which the management and shipowners undertook to meet the workers' main demands. However, according to the UMT ten months elapsed before the protocol of agreement was signed and none of these demands have been met despite repeated reminders by the fishermen's trade union. The National Fishermen's Union, a UMT affiliate, had no alternative but to call a strike beginning on 15 September 1999 in several of the country's fishing ports.
6. 707. Following this protest action, the UMT alleges that instead of opening negotiations with the trade union, the local authorities resorted to repression against the UMT's activists and trade union structures. The organization specifies that on 18 September 1999, in the port of Agadir, the police arrested Mr. Brahim Mounacit, Secretary-General of the fishermen's union, and two other trade unionists, Mr. Abarghaz Mohammed and Mr. Ouchikh Lhoucine. Lastly, the UMT states that the three trade unionists in question were brought before the Court of First Instance of Agadir on 24 September 1999 and charged with "insulting an officer and obstructing freedom to work" and all sentenced to a year's imprisonment.

B. The Government's reply

1. 708. In its communication of 21 October 1999, the Government sets forth its observations concerning the first part of the UMT's complaint, i.e. the collective dispute at the AVITEMA factory. The Government states that a week after the trade union officers of the UMT and the AVITEMA factory had taken office, on 14 May 1999, it had submitted a list of demands to the management and called a strike for 18 May 1999 without giving any notice. Despite the fact that negotiations had begun between the parties, the Government relates, the trade union officers had called further strikes on 17 and 25 May, 6 July and 12 August 1999. At no time did the workers suffer harassment in the exercise of their rights, according to the Government, and only some of the workers in the factory had taken part in these strikes. The Government also reported that 17 conciliation meetings had taken place and culminated in a protocol of agreement signed by the parties on 27 August 1999. The Government explains that one of the issues still pending was the trade union officers' demand that the workers in the enterprise be paid the minimum wage (SMIG) applicable in industry, commerce and services, whereas the activity of the enterprise, which produces eggs, is classified as an agricultural activity under the decree of 5 January 1999 approving the Moroccan classification of economic activities. As these workers are paid the minimum agricultural wage (SMAG), the Government considers that their demands are not justified. According to the Government, faced with a stalemate the factory management called on the good offices of the Secretary-General of the UMT but the latter did not respond. The trade union officers then declared a sit-in inside the factory and some of the workers allegedly committed acts of violence in order to intimidate non-strikers who disapproved of their action. The Government asserts that it was at this point that the employer called in the local authorities. According to the Government, some members of the local authorities had been attacked and seriously injured by the strikers.
2. 709. Following these events, the criminal investigation department, acting on the instructions of the public prosecutor's office, arrested the strikers implicated, who were heard and brought to trial after a regular procedure before the Court of First Instance of Rabat and sentenced to terms of imprisonment or given suspended sentences. The Government asserts that the incident should be considered as being within the purview of the ordinary law and not as a trade union matter.
3. 710. In its communication of 29 February 2000, the Government explains that, considering the violent acts committed by certain workers during the protests, the Prosecutor's Office of the Court of First Instance of Rabat filed suits against some of these workers on the following grounds: attacking and injuring representatives of the public forces in the exercise of their functions; obstructing the exercise of the freedom of work through acts of violence; and damage to property. Following the hearings, where the accused enjoyed all legal guarantees provided for in existing legislation, including the right to be defended, the Court of First Instance of Rabat sentenced one group of accused to a fixed term of jail from one to eight months, and a fine of 500 dirhams, and gave another group a suspended sentence of three to four months, and a fine of 500 dirhams. The Court nevertheless granted them their release, following which they were all released on 21 December 1999. The Government adds that this case, which has been appealed, is pending before the Correctional Chamber of the Rabat Court of Appeal. Any additional information will be transmitted to the Committee upon reception.
4. 711. In its communication of 9 December 1999, the Government sets forth its observations concerning the second part of the UMT's complaint, i.e. the dispute with the fishermen in the Moroccan ports. In this respect, the Government states that in the last three months of 1998 the Ministry of Maritime Fisheries held a number of meetings with the trade union representatives of the seafarers, the shipowners and heads of seafood processing units. These meetings culminated in the conclusion of an agreement signed on 6 November 1998 between the fishermen's union and the shipowners, in the presence of the management. The agreement was based on 33 demands put forward by the trade unions. The Government points out however that another strike was called for 9 September 1999, three days after the publication of the report on the seafarers' situation by the UMT office in Agadir. Again on 9 September 1999, the management called a meeting with the trade union at the Chamber of Maritime Fisheries in Agadir to review the situation with regard to the application of the terms of the agreement signed on 6 November 1998. The Government states that the representatives of the fishermen's union affiliated to the UMT did not attend this meeting despite the efforts made to this end by the regional representative of the UMT.
5. 712. The Government states further that on 14 September 1999 the seafarers of a number of fishing trawlers of the Agadir, Tan Tan and Laâyoune ports declared an open-ended strike. In response to this strike, meetings were held on 21 and 24 September 1999 but the fishermen's trade union did not participate in the second meeting. Even worse, according to the Government, strikers committed acts of vandalism and threatened seafarers who did not take part in the strike action.
6. 713. Lastly, the Government states that the three strikers were arrested on 18 September 1999 not on account of their trade union membership but for breach of public order in the port of Agadir, because they had damaged property and obstructed the freedom to work of non-striking seafarers. The Government adds that after committing these acts the persons in question had been brought to trial and sentenced in accordance with the legislation in force.

C. The Committee's conclusions

1. 714. The Committee notes that this case concerns, on the one hand, a dispute in the AVITEMA factory, and on the other, a dispute involving the seafarers in Moroccan ports.
2. 715. As regards the first part of the complaint concerning the workers in the AVITEMA factory, the Committee notes the entirely contradictory versions put forward by the parties to the dispute with regard to the calling and holding of the strike and the ensuing violence. While the UMT states that a legal and peaceful strike was called by the factory workers and violently repressed by the police, the Government asserts that the police intervened in the dispute only after acts of violence had been perpetrated by strikers against non-striking workers. The complainant further alleges that at the time of their arrest, the 21 trade unionists who had been exercising their right to hold a legitimate and peaceful strike were tortured in the factory itself on the orders of the local authorities. The Government on the other hand asserts that members of the local authorities were attacked and seriously injured by strikers and that the arrest of the latter by the criminal investigation department and their subsequent sentencing to prison terms should be considered as being within the purview of the ordinary law and not as a trade union matter. The Committee notes that the workers concerned were sentenced by the Court of First Instance to jail terms and fines but that they were all released. The Committee further observes that they have appealed their case.
3. 716. Without wishing to express an opinion on the validity of the trade union's demands that motivated the strike, the Committee recalls first of all the importance which it attaches to the obligation of both employers and trade unions to negotiate in good faith for the maintenance of the harmonious development of labour relations. Moreover, the Committee insists that the rights of workers' organizations can only be exercised in a climate that is free from violence. It recalls that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists. Moreover, 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 (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 83 and 601). In this case, it is difficult for the Committee, given the contradictory statements made by the complainant and the Government, to come to a conclusion as to the peaceful nature of the strike. However, the Committee notes that the Government provides few details on the nature of the violent acts allegedly committed against the authorities by the 21 striking workers, a third of whom were women.
4. 717. As regards the alleged cases of torture or ill-treatment to which the striking workers were subjected, the Committee expresses its profound concern and reminds the Government that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts (see Digest, op. cit., para. 53). The Committee requests the Government to institute such an inquiry and to keep it informed in this respect.
5. 718. Concerning the prison terms imposed on 21 men and women who participated in a strike, the Committee, while emphasizing that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike, nonetheless reminds the Government that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike. The Committee reiterates that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike (see Digest, op. cit., para. 599). The Committee, noting that an appeal is pending, requests the Government to transmit the decision of the Rabat Court of Appeal in this matter. The Committee hopes moreover that measures will be taken so as to ensure that the trade unionists are reinstated in their jobs.
6. 719. As regards the employer's refusal to let the former strikers return to work, and their recruitment of new workers to keep the factory running, the Committee deplores these practices and recalls that respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action The Committee accordingly urges the Government to take all the necessary measures without delay to ensure that former strikers are able to return to work at the AVITEMA factory and to keep it informed in this respect.
7. 720. As regards the second part of the complaint, concerning the strike called by the fishermen's trade union, the Committee again notes the contradictory versions of the parties with respect to the events leading up to the calling of the strike and the manner in which it proceeded. Concerning the allegations of non-observance of the agreements concluded and the Government's unyielding attitude with regard to the trade union's demands, the Committee recalls that while the question as to whether or not one party adopts an amenable or an uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement. Moreover, agreements should be binding on the parties (see Digest, op. cit., paras. 817 and 818).
8. 721. As regards the arrest and sentencing to prison terms of three members of the fishermen's trade union, the Committee notes that according to the Government they were sentenced not on account of the exercise of their right to strike or of their trade union membership but for breach of public order in the port of Agadir. The Committee, however, expresses its concern at the harshness of the sentences imposed and emphasizes that the sentencing of trade unionists to long periods of imprisonment, very often on grounds of "disturbance of public order", in view of the general nature of the charges, might make it possible to repress activities of a trade union nature (see Digest, op. cit., para. 64). The Committee requests the Government to inform it whether an appeal has been lodged by the three trade unionists sentenced. Lastly, recalling that no one should be penalized for carrying out a legitimate strike, the Committee expresses the hope that the workers concerned may benefit from measures in their favour, including an amnesty. It requests the Government to keep it informed in this respect.