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

Article 1(d) of the Convention. Imposition of prison sentences involving an obligation to work as punishment for having participated in strikes. In its previous comments, the Committee drew the Government’s attention to the scope of section 288 of the Penal Code, under the terms of which anyone who, through violence, the use of force, threats or deception, causes or maintains, or endeavours to cause or maintain, a concerted stoppage of work, with the aim of forcing an increase or decrease in wages or jeopardizing the free exercise of industry or work, is liable to a sentence of imprisonment of from one month to two years. Sentences of imprisonment involve the obligation to work under section 28 of the Penal Code and section 35 of Act No. 23-98 respecting the organization and operation of prisons.

The Government has indicated on several occasions that section 288 of the Penal Code is not in contradiction with the provisions of the Convention, since it does not penalize the exercise of the right to strike, but a collective stoppage of work accompanied by violence, the use of force, threats or deception, and that the only acts condemned by this section are acts which violate the freedom of work.

The Committee previously noted in this respect that the Moroccan Labour Union (UMT) had requested the Government to repeal this provision which, in practice, was frequently used by the courts to imprison UMT militants for their peaceful participation in strikes. The Committee also noted the conclusions of the Committee on Freedom of Association on the complaint made by the UMT and other organizations in September 1999 alleging the arrest of trade union leaders and members following strikes (Case No. 2048), as well as several court rulings under section 288 of the Penal Code, copies of which were provided by the Government at the request of the Committee.

Taking into account, on the one hand, the restrictions that an extensive application of section 288 of the Penal Code could place on the exercise of the right to strike and, on the other, the penalties which may be imposed under this provision, the Committee requested the Government to examine section 288 of the Penal Code in the light of Article 1(d) of the Convention, under the terms of which no form of forced labour, including compulsory prison labour, may be imposed as a punishment for having participated in strikes.

In its last report, the Government indicates once again that section 288 of the Penal Code does not penalize the exercise of the right to strike. It specifies that a framework Bill on the exercise of the right to strike, formulated by the Ministry of Employment and Vocational Training, has been examined in several meetings with the social partners, but has not yet obtained consensus. Despite the absence of a legal framework, the Government considers that the right to strike is exercised without obstacle in all sectors of activity.

The Committee notes this information. It observes that the Government no longer refers to a revision of section 288 of the Penal Code, which had been envisaged in the context of an overall revision of the Penal Code. It requests it to provide information on this subject. The Committee hopes that the Government will be able to re-examine the issue of the scope of section 288 in the light of the protection afforded by Article 1(d) of the Convention and that it will take the necessary measures to ensure that no sentence of imprisonment involving the obligation to work may be imposed on workers who exercise their right to strike, which is moreover guaranteed by article 14 of the Constitution. The Committee would be grateful if the Government would provide a copy of the framework Act on the exercise of the right to strike to which it makes reference as soon as it has been adopted.