Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes with interest the adoption of Act. No. 65-99 of 11 September 2003 issuing the Labour Code, which repeals, inter alia, the Dahir of 2 July 1947 issuing labour regulations and the Dahir of 18 June 1936 issuing regulations on hours of work (section 586 of the Labour Code). Nevertheless, the texts issued under these latter Dahirs remain temporarily in force in so far as they are not contrary to the provisions of the Labour Code (section 587). The fact that these remain in force may in certain cases raise problems concerning the application of the Convention (see in particular under Article 5, paragraph 1, of the Convention below). The Committee therefore requests the Government to provide information on the progress achieved in the preparation of the draft Decree on the organization of working hours in commerce, industry and services.

Article 1, paragraph 1, of the Convention. Establishments covered by the Convention

Commercial establishments run by the State and local communities. Under the terms of section 1, the Labour Code applies, inter alia, to persons bound by a labour contract and employed in commercial enterprises and enterprises of a commercial nature run by the State and local communities. However, employees in public enterprises and establishments run by the State and local communities are still covered by special conditions of service "which may in no case set out guarantees less favourable than those established in the Labour Code" (section 3 of the Labour Code). The Committee requests the Government to provide detailed information on the distinction between workers employed in commercial establishments run by the State and local communities who are covered by the Labour Code and those who are excluded from its scope of application. The Government is also requested to provide copies of the specific conditions of service applicable to the latter.

Office work - Journalists. Section 1 of the Labour Code contains an illustrative list of the categories of enterprises falling within its scope of application. This list does not include establishments in which the work is essentially based on office work. Moreover, professional journalists are explicitly excluded from the scope of the Labour Code and are subject to special conditions of service which may in no case set out guarantees less favourable than those established in the Labour Code (section 3 of the Labour Code). The Committee requests the Government to provide information on the regulations applicable to workers employed in establishments in which the work is based essentially on office work, and to specify in particular whether they are covered by the Labour Code. The Government is also requested to indicate the regulations applicable to professional journalists and to provide a copy thereof. Finally, the Committee requests the Government to provide a copy of Decree No. 774-85-2, of 4 November 1985, regulating working hours in state administrations and local communities.

Paragraph 3. Exemptions from the application of the Convention

(a) Purely traditional sectors. The Labour Code is not applicable in purely traditional sectors, which are governed by a special Act under section 4 of the Labour Code. These sectors are defined as those in which an individual carries on "a manual occupation, with the assistance of her or his spouse, ascendants and descendants and a maximum of five assistants, at home or in another workplace, for the purposes of the production of traditional products intended for sale". Article 1, paragraph 3(a), of the Convention only allows the exemption from its application of establishments in which only members of the employers’ family are employed. The Committee requests the Government to provide a copy of the legislation governing hours of work in sectors of a purely traditional nature.

(d) Travellers and representatives. The Labour Code is applicable to "persons entrusted by a single enterprise with carrying out sales of all types and receiving all orders, where such persons carry on their occupation in premises supplied by the enterprise and comply with conditions and prices imposed by the enterprise" (section 2 of the Labour Code). The Committee requests the Government to indicate whether the Labour Code is also applicable to travellers and representatives who carry out their work outside the establishment.

Articles 3 and 6. Annualization of working time - Daily and weekly limits on hours of work. Under the terms of section 184 of the Labour Code, normal hours of work in non-agricultural activities are set at 2,288 hours in the year or 44 hours in the week and may be distributed over the year according to the needs of the enterprise, provided that normal working hours do not exceed ten in the day. However, Article 3 of the Convention provides that the hours of work of persons to whom the Convention applies shall not exceed 48 hours in the week and eight hours in the day, subject to the applicable exemptions. Moreover, Article 4 permits an uneven distribution of hours of work in the week, within the weekly limit of 48 hours and on condition that the hours of work in any day do not exceed ten. The annualization of working time runs the risk of exceeding the limit of 48 hours in the week set out in the Convention. The Committee requests the Government to indicate the measures adopted or envisaged to ensure compliance with the provisions of the Convention on this point.

Article 5, paragraph 1. General interruptions of work

Accidents or force majeure. Section 189 of the Labour Code provides for the making up of hours of work lost in case of a general interruption of work due to accidents or force majeure, after consultation with the workers’ representatives and, where appropriate, trade union representatives in the enterprise. However, section 189 does not enumerate the occurrences which constitute force majeure. The Committee requests the Government to indicate whether section 5 of the Order of 15 March 1937 determining the general conditions for the application of the Dahir of 18 June 1936 regulating hours of work remains applicable on this point. This provision has been the subject of repeated direct requests by the Committee, due to the fact that the definition of force majeure includes the lack of materials or primary commodities and is therefore broader than the definition contained in Article 5, paragraph 1, of the Convention.

Making up hours lost. The making up of hours lost, as set out in section 189 of the Labour Code, cannot be authorized for more than 30 days in the year. However, this provision does not indicate that the making up of hours lost shall occur within a reasonable lapse of time, as required by Article 5, paragraph 1(a), of the Convention. The Committee requests the Government to indicate the measures adopted to ensure that hours lost are made up within a reasonable lapse of time.

Paragraph 2. Notification to the competent authority. Section 189 of the Labour Code does not require the notification to the competent authority of information relating to a general interruption of work and the making up of hours lost, in accordance with this provision of the Convention. The Committee requests the Government to indicate the measures adopted or envisaged to ensure the notification of such information.

Article 7, paragraph 2. Temporary exceptions

(a) Urgent work. Section 192 of the Labour Code allows the extension of normal daily hours of work per one day and then extension by two hours for the following three days, particularly in cases where urgent work has to be performed immediately to repair accidents affecting the materials, equipment or buildings of the enterprise. Under the terms of Article 7, paragraph 2(a), of the Convention, such temporary exceptions are only allowed so far as may be necessary to avoid serious interference with the ordinary working of the establishment. The Committee requests the Government to indicate the measures adopted to ensure compliance with this rule.

(d) Abnormal pressure of work - Work in the national interest. In cases where enterprises have to cope with work that is in the national interest or cases of abnormal pressure of work, their employees may be called upon to perform hours beyond normal working hours under the conditions established by regulation (section 196 of the Labour Code). The Committee requests the Government to indicate the conditions so established by regulation. It also notes that, in the two above cases, the possibility of extending working hours is not limited to cases in which the employer cannot ordinarily be expected to resort to other measures, as provided for in Article 7, paragraph 2(d). The Government is requested to indicate the measures adopted to ensure compliance with this restriction in practice. Finally, the Committee requests the Government to indicate the types of work performed in the national interest which may give rise to the adoption of temporary exceptions.

Paragraph 3. Maximum extension of working hours

Intermittent or preparatory work - Small enterprises. Section 190 of the Labour Code establishes a permanent exception for employees carrying on essentially intermittent work or where preparatory or supplementary work that is indispensable for the general operation of the establishment has to be carried out and cannot be performed within the limits of normal working hours. In these two cases, the daily hours of work may not exceed 12 in number, but the extension of working hours which may be allowed in the day is not established. Furthermore, section 4 of the Labour Code provides that certain professional categories of employers may be excluded from the scope of the Labour Code by regulation and following consultation with the most representative organizations of employers and workers, provided that the employer is an individual, assisted by no more than five persons, and the annual income of the employer does not exceed five times the ceiling for exemption from general income tax. However, this provision does not indicate the regulations that are applicable to these categories of professional employers in relation to hours of work. The Committee requests the Government to indicate the extension of working hours allowed in the day in the case of intermittent, preparatory or supplementary work, as well as for the categories of employers excluded from the scope of the Labour Code under the terms of section 4.

Urgent work - Abnormal pressure of work. Section 192 of the Labour Code permits the extension of working hours for one day and then by two hours for the following three days where urgent work has to be carried out, inter alia, to prevent the loss of certain perishable goods. However, this provision does not indicate the number of hours by which hours of work may be extended on the first day, nor the number of additional hours allowed in the year. Furthermore, section 196 of the Labour Code allows for temporary exceptions for reasons of abnormal pressure of work "under the conditions established by regulation", without however specifying the number of additional hours of work allowed in this case. In accordance with Article 7, paragraph 3, the number of additional hours of work which may be allowed in the day and in the year has to be determined for these two types of temporary exceptions. The Committee requests the Government to indicate the measures adopted or envisaged to ensure compliance with this provision.

Paragraph 4. Higher rate of pay. Where normal working hours are extended to prevent the loss of certain perishable goods, additional hours are paid on the basis of the wage for normal hours of work (sections 192 and 193 of the Labour Code). In such cases, Article 7, paragraph 4, of the Convention requires the payment of a wage rate that is at least 25 per cent higher than the normal rate. The Committee requests the Government to indicate the measures adopted or envisaged to ensure compliance with the provisions of the Convention on this matter.

Article 11, paragraph 2. Posting of hours of work and rest periods - Records for temporary exceptions. Under the terms of section 24 of the Labour Code, the employer is required to notify employees in writing of the hours of work when they are recruited and on each occasion that a change is made to them. However, this provision does not indicate that employees shall also be notified of the rest periods which are not included in hours of work. Nor does it provide for the keeping of records in cases in which use is made of temporary exceptions. The Committee requests the Government to indicate whether, in practice, employees are notified of the rest periods not included in hours of work. The Government is also requested to indicate whether records relating to temporary exceptions are kept by employers in practice and, if so, to provide a model of this type of record.

Part V of the report form. The Government is requested to provide information on the manner in which the Convention is applied in practice, for example, by communicating extracts from the reports of the inspection services and, in so far as possible, statistical information on the number and nature of the contraventions of rules respecting hours of work which have been reported.