Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 2, paragraph 2 (c), of the Convention. Prison work. Prisoners hired to private enterprises or individuals. In its previous comments, the Committee noted that, under the terms of section 40 of Act No. 23-98 concerning the organization and operation of penal establishments, no prisoner may work for a private individual or organization other than under the concession system and under the terms of an administrative agreement determining the conditions of employment and remuneration. This possibility was already envisaged in the Dahir of 26 June 1930 which, for many years, the Committee had requested the Government to repeal or amend. In accordance with Article 2, paragraph 2(c), of the Convention, prison labour is not considered to be forced labour on condition that the prisoner is not hired to or placed at the disposal of private individuals, companies or associations. The employment of prisoners by private individuals could only be compatible with the Convention in so far as the conditions under which it is carried out approximate those of a free employment relationship (see paragraphs 97-101 of the General Survey of 1979 on the abolition of forced labour). In the absence of information provided by the Government in its last reports on this subject, the Committee once again requests it to indicate whether the possibility envisaged in the section 40 of Act No. 23-98 referred to above has been used in practice and, if so, to provide copies of the corresponding administrative agreements and information on the manner in which it is ensured that the consent of the prisoners is given freely, the level of the wages paid to them and their other conditions of work.

Article 2, paragraph 2(d). Requisitioning of persons. For many years, the Committee has been drawing the Government’s attention to the need to amend or repeal several legislative texts which authorize the requisitioning of persons and goods in order to satisfy national needs (the Dahirs of 10 August 1915 and 25 March 1918, as contained in the Dahir of 13 September 1938 and reintroduced by Decree No. 2-63-436 of 6 November 1963). The Committee requested the Government to take steps to ensure that requisitioning could only be decided upon under conditions strictly limited to situations endangering the existence or well-being of the whole or part of the population. It noted that, according to the Government, the only cases in which the provisions allowing for the requisitioning of goods and persons could be invoked were emergencies within the meaning of the Convention and that recourse to requisitioning had to be based on the necessity to satisfy urgent needs, under circumstances of extreme difficulty, in order to protect the nation’s vital interests (for example, in cases of war, natural disasters or major accidents). The Committee notes the Government’s indication in its report in 2003 that this issue was debated during discussions held with the social partners and that the accord concluded following these discussions contains a specific provision on the need to repeal the Decree of 13 September 1938. The Committee hopes that the Government will be in a position to indicate in its next report the adoption of the necessary measures to amend the national legislation so as to limit the requisitioning of persons to situations endangering the existence or well-being of the whole or part of the population.

Article 25. Imposition of really effective penal sanctions. For many years, the Committee has been drawing the Government’s attention to the absence in the national legislation of any penal sanctions against persons guilty of exaction of forced labour, whereas under Article 25 of the Convention, the illegal exaction of forced or compulsory labour must be subject to really adequate and strictly enforced penal sanctions. In this respect, the Government refers to sections 10 and 12 of the new Labour Code, which prohibit the requisitioning of employees to perform forced labour or to work against their will. Any employer in breach of this prohibition is liable to a fine of between 25,000 and 30,000 dirhams and, in the event of a repeated offence, a fine of double that amount and imprisonment for between six days and three months, or one of these two penalties. The Committee notes these provisions but expresses reservations as to the dissuasive nature of these penalties. Indeed, only cases of repeated violations of the prohibition of forced labour could be penalized by a prison sentence, although the judge could however opt for a mere fine if he or she considered it appropriate. Furthermore, the maximum prison sentence which could be imposed is short (from six days to three months).

At the same time, the Committee notes that, among the changes made to the Penal Code, new section 467-1 punishes any person who exploits a child under 15 years of age for forced labour, acts as an intermediary or causes such exploitation with a sentence of imprisonment of from one to three years and a fine. The Committee requests the Government to re-examine the penalties under the Labour Code and provide information on the manner in which the imposition of adequate and dissuasive penal sanctions are ensured against any person who has recourse to forced labour, irrespective of the age of the victims.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2. Freedom of public servants and career members of the armed forces to terminate their employment. In its previous comments, 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 vested with the power of nomination. In the event of refusal, the person concerned may bring the case before the Joint Administrative Committee, and the criteria which were applied in accepting or rejecting a resignation request were the needs of the service and whether or not it was possible to find a similarly qualified or specialized replacement for the official who was resigning. Under these conditions, the Committee requested 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.

The Committee notes the Government’s indication that, in the context of the accord concluded by the social partners and the Government, the Ministry sent a letter to the competent department with a view to repealing section 77 of the Dahir of 24 February 1958 so as to bring it into conformity with the Convention. The Committee requests the Government to provide information on the measures adopted for this purpose and to provide a copy of any text that is adopted.