Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and notes with interest the entry into force of Act No. 65/99 concerning the Labour Code.

Articles 1, 2 and 3 of the Convention. The Committee notes that the provisions of the new Labour Code prohibit and sanction acts of anti-union discrimination and acts of interference in employers’ and workers’ organizations by each other (sections 9, 12, 36, 41, 63, 397 and 428 of the Labour Code).

Article 4. 1. The Committee notes that the Government states in its report that a draft decree concerning the Council for Collective Bargaining (a tripartite advisory body provided for in the new Labour Code) was recently approved in the Council of Ministers. The Committee requests the Government to provide a copy of the decree in question.

2. The Committee notes that the Government refers in its report to its efforts to give a fresh boost to social dialogue, which culminated in the signature of the agreement of 30 April 2003 between the Government and the social partners. The Committee requests the Government to provide it with a copy of this agreement of 30 April 2003.

3. The Committee notes that, for a trade union organization to be able to obtain the status of "most representative organization" for the purposes of collective bargaining, section 425 of the Labour Code provides that account must be taken at national level of: (1) the acquisition of at least 6 per cent of the total number of workers’ delegates elected in the public and private sectors; (2) the effective independence of the union; and (3) the contractual capacity of the trade union. At enterprise or establishment level, account must be taken of: (1) the acquisition of at least 35 per cent of the total number of employee delegates elected at enterprise or establishment level; and (2) the contractual capacity of the trade union.

The Committee notes that, since section 92 of the Labour Code provides that only the most representative organizations are authorized to engage in collective bargaining, the requirement of 35 per cent of the total number of employee delegates elected at enterprise or establishment level may appear high and might thus obstruct the development of collective bargaining, especially if there is no trade union organization which fulfils this condition. The Committee requests the Government to adopt measures to amend 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 awarded to all the unions in the unit, at least on behalf of their own members.

4. Finally, noting that the Government’s report does not contain any information in this regard, the Committee again requests the Government to reply to the comments by the International Confederation of Free Trade Unions (ICFTU) and provide it with practical information on the general state of collective bargaining and particularly the number of collective agreements concluded to date and the sectors of activity concerned.

Article 6. 1. The Committee notes that the Government’s report indicates that the legislative and regulatory texts which apply to the status of public servants and public sector employees with regard to their right to organize and collectively bargain are: (1) the Dahir of 24 February 1958 establishing the conditions of service of public servants; and (2) the Decree of 5 February 1958 concerning the exercise of the right to organize by public servants. The Committee also notes that the Government’s report does not contain any reply to its comments on section 4 of the Dahir of 24 February 1958 establishing the conditions of service of public servants.

The Committee noted that section 4 of the Dahir of 24 February 1958 refers to particular regulations for certain categories of staff (teachers, prison officials, lighthouse workers, water and forestry workers) without giving details of their collective bargaining rights. 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 therefore again requests the Government to indicate whether these categories of staff enjoy the right to collective bargaining.

2. The Committee also notes that section 4 of Decree No. 2-57-1465 of 5 February 1958 concerning the exercise of the right to organize by public servants provides that the right to organize is not applicable to any persons who, under any title or to any extent, are responsible for performing a duty or mandate even on a temporary basis, whether for payment or free of charge, in the service of the State, public administration, municipalities, public establishments or public utilities and in which the right to carry a weapon in the performance of their duties has been conferred.

The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff) who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 200). The Committee therefore requests the Government to provide a list of public servants covered by the exception provided for in section 4 of Decree No. 2-57-1465 of 5 February 1958 and, if some of the public servants on this list cannot be considered as "public servants engaged in the administration of the State", to amend this provision to bring it into conformity with Article 6 of the Convention.