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The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 29 August 2008 and the Government’s replies thereto.

Article 4 of the Convention. Representativity required to engage in negotiations. In its previous comments, the Committee noted that section 92 of the Labour Code provides that only the most representative organizations are authorized to engage in collective bargaining. It also noted that the requirement of 35 per cent of the total number of employee–delegates elected at the enterprise or establishment level, as required by section 425 of the Labour Code, was too high and thereby obstructed the development of collective bargaining, especially if there was no trade union organization that fulfilled this condition. In its report, the Government indicates that the percentage of 35 per cent of the number of votes obtained by employee–delegates within the enterprise appears reasonable as it is lower than the absolute majority or the relative majority of votes. In this respect, two trade unions which have obtained 35 per cent of the votes may conclude collective agreements and the others, which obtained less than 35 per cent, may be involved in the bargaining process. Furthermore, according to the Government, the requirement of this percentage implies that only those trade unions which have the support and confidence of the workers would be in a position to participate in collective bargaining and legitimately defend their interests. According to the Government, a lowering of this percentage could create an overlap between trade unions within the same enterprise, increase the number of negotiating partners and cause antagonism to the detriment of the workers’ interests, thereby threatening the purpose of this mechanism. Furthermore, the Government indicates that trade unions which have not obtained 35 per cent of the total number of employee–delegates elected at the enterprise or establishment level may conclude protocol agreements and atypical collective agreements, which may establish rights and acknowledge acquired rights for the benefit of workers. In this regard, the social partners concluded 265 protocol agreements in 2007. While noting this explanation, which it deems reasonable, the Committee nevertheless considers that it would be desirable for the promotion of collective bargaining if the Government took measures with a view to amending section 425 of the Labour Code so that, where no trade union has obtained 35 per cent of the number of employee–delegates, collective bargaining rights are not denied to the trade unions in the unit, at least on behalf of their own members. The Committee requests the Government to indicate any developments in this regard.

Article 6 of the Convention. Collective bargaining for certain categories of public servants and employees. With reference to its previous comments, the Committee recalls that section 4 of the Dahir of 24 February 1958 establishing the general conditions of service of public servants refers to specific regulations for certain categories of staff (teachers, prison officials, lighthouse workers, water and forestry workers) without giving details of their collective bargaining rights. The Committee notes that, according to the Government, public servants not engaged in the administration of the State enjoy the same rights as public servants (any person appointed to a permanent post on a grade applicable to senior officials in the Administration of the State is regarded as a public servant). Recalling that public servants not engaged in the administration of the State must enjoy the rights and guarantees of the Convention, particularly the right to collective bargaining, the Committee once again requests the Government to indicate clearly whether the categories of staff referred to in section 4 of the Dahir of 24 February 1958, as well as categories of staff such as teachers, prison officials, lighthouse workers and water and forestry workers, enjoy the right to collective bargaining, and whether such bargaining has taken place in recent years.

Referring to its previous comments, the Committee recalls that, under section 4 of Decree No. 2-57-1465 of 5 February 1958 concerning the exercise of the right to organize by public servants, those public servants and employees who exercise a function involving the right to carry a weapon do not enjoy the right to organize, nor consequently the right to collective bargaining. In its report, the Government indicates that the reason that employees and public servants who exercise a function involving the right to carry a weapon are excluded from the right to bargain collectively is because they exercise extremely important functions (protection of the territory, looking after forests, intervening in emergency situations). According to the Government, the sensitive nature of their intervention, its security dimension and the need for continuity in the public service means that the exercise of the right to organize by these employees and public servants has until now been regarded as incompatible with their functions. Considering that the public servants in question discharge responsibilities relating to security, but are not members of the police or armed forces, the Committee once again requests the Government to take measures to amend the legislation so that it grants the right to organize and to collective bargaining to the representative organizations of these public servants and employees, since they are not public servants engaged in the administration of the State or members of the police or armed forces, which are the only categories that may be excluded for the scope of the Convention.