Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 331, Juin 2003

1. 593. The complaint in this case is contained in a communication from the Democratic Confederation of Labour (CDT) dated 18 December 2002.
2. 594. The Government sent its observations in a communication dated 24 March 2003.
3. 595. Morocco has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135). Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 596. The complaint concerns the Central Carbonated Beverage Company (SCBG) and reports its refusal to recognize its workers’ trade union executive and to engage in social dialogue with it. The allegations also cite anti-union discrimination in the form of pressure on trade union members to resign from the trade union, the imposition of undue sanctions against trade union members, and the dismissal of two trade union members, Mr. Najahi Mohamed and Mr. Chahrabane Azzedine. The Government of Morocco allegedly did not respond to the repeated violations of trade union rights and freedoms. The complainant considers that the allegations represent serious breaches of national laws and Conventions Nos. 87, 98 and 135.
2. 597. To substantiate these allegations, the complainant is submitting a “detailed report” outlining the events which are the subject of the complaint and which can be summarized as follows.
   • SCBG’s refusal to engage in social dialogue
   • and acts of anti-union discrimination
3. 598. The SCBG is a company specializing in making, bottling and distributing carbonated drinks under the Coca-Cola brand. It belongs to the leading Moroccan industrial and financial group Omnium Nord Afrique (ONA). Its distribution branch in Casablanca employs 150 drivers/salespeople and co-drivers.
4. 599. In accordance with the Dahir of 16 July 1957 on trade unions (as amended by Act No. 11.98, promulgated on 15 February 2000), drivers/salespeople and allied workers established their trade union executive, affiliated to the CDT, on 6 March 2002. Moreover, staff representatives elected at the last trade union elections in 1997 and not belonging to a trade union joined the CDT. After carrying out the required formalities, including depositing the founding documents with the SCBG management, the trade union requested the latter to hold an initial meeting with it. The SCBG management refused this meeting.
5. 600. Since 22 March 2002, a number of steps have been taken against trade union officials and members. Under the pressure, some workers preferred to resign from the trade union. A list of the 20 trade union members who were subjected to acts of anti-union discrimination is appended to the detailed report. The measures consist of dismissals, transfers from one workplace to another and demotion; in some cases these measures were combined, and half of them took place on 22 or 25 March. The complainant explains that the demotion consisted of drivers/salespeople being assigned to other duties. For the staff concerned this change entails a loss of remuneration, as the drivers/salespeople are entitled to a sales commission which amounts to 50 per cent of their wages. As regards transfer from one workplace to another, the complainant points out that the two production centres concerned are 15 km apart. Transfers from one workplace to another entail additional travel and therefore, in particular, additional expenditure for the workers concerned. The complainant emphasizes that these transfers are unwarranted, as they do not correspond to any operational requirements.
6. 601. On 16 April 2002 the SCBG management wrongfully dismissed the secretary-general of the trade union executive, Mr. Najahi Mohamed, and a member of the executive, Mr. Chahrabane Azzedine, who were both staff representatives.
7. 602. The complainant took steps to have the sanctions lifted and the two dismissed trade union officials reinstated; in particular, it addressed inquiries to the SCBG, the president of the ONA group and the president of the General Confederation of Moroccan Enterprises. To date, the SCBG management still refuses to enter into a dialogue and has broadened the scope of anti-union discrimination to include every member or person supporting the trade union. A last attempt to find a solution to the problems that had arisen was made by addressing a letter to the SCBG management on 4 October 2002.
   • Attitude of the public authorities
8. 603. The complainant also approached the public authorities, in particular the Ministry for Employment and its local office.
9. 604. The complainant indicates that the employment directorate at the Ministry of Employment invited the SCBG and the trade union to a meeting in the National Arbitration Committee on 14 May 2002. The SCBG management refused to reply to this invitation. The labour inspector sent a warning to the SCBG management to remind it that, in accordance with the Dahir of 29 October 1962, no staff representative may be dismissed without the labour inspectorate being consulted.
10. 605. In reply to a letter sent by the complainant to the Ministry of Employment, it stated that the SCBG refused to engage in dialogue, to reinstate the two trade union officials and to review the sanctions taken against other trade union members. The Ministry also expressed the hope that an amicable settlement to the dispute would be reached but, according to the complainant, without specifying the actions which it intended to take to achieve this.

B. The Government’s reply

1. 606. The Government reports the steps taken by the Ministry of Employment, Social Affairs and Solidarity, and encloses with its reply “observations” from the SCBG management which it requested under the procedure before the Committee.
   • Steps taken by the Ministry of Employment,
   • Social Affairs and Solidarity
2. 607. The Government firstly notes a contradiction in the CDT complaint. Its assertion that there was no response from the Government is contradicted by the steps, mentioned in its detailed report, taken by the Ministry of Employment and its external services with a view to enforcing legislation and finding a solution to the dispute by means of reconciliation.
3. 608. The Ministry states that the Ministry’s labour directorate and employment office did in fact take a number of steps with a view to settling the dispute. Several meetings were convened in the labour inspectorate, the employment office, the prefecture of Casablanca and the headquarters of the labour directorate. The SCBG always refused to attend them. In fact, in a reply dated 7 May 2002 to a government invitation, the SCBG asserts that the allegations of a collective dispute submitted to the Government are unfounded and that it has always been open to dialogue, in particular with representatives elected by staff, with whom it has concluded numerous agreements (in particular concerning wage increases and bonuses), of which it has always kept the Government informed. The SCBG also emphasized in its reply that the dispute only concerned Mr. Najahi Mohamed and Mr. Chahrabane Azzedine, who were dismissed for disciplinary reasons. Consequently, it refused to participate in the meeting to which it was invited, as it considered that there was no collective dispute and that there was ongoing dialogue with the representatives elected by the workers, in accordance with the laws in force.
4. 609. The Government states further that on 12 April 2002 an injunction was sent to the SCBG management ordering it to comply with the provisions of section 12 of the Dahir of 29 October 1962 relating to staff representation in enterprises, under which it is obliged to seek the opinion of the labour inspector on the sanctions envisaged. On 19 April 2002 a violation notice was served against the SCBG Director-General for non-compliance with the aforementioned section 12. A copy of this notice was submitted to the competent court of law on 31 May 2002; this is also attached to the Government’s reply. According to this document, the labour inspector states that he was not consulted about Mr. Chahrabane Azzedine’s dismissal and that the SCBG Director has thus committed an offence according to section 12 of the Dahir of 29 October 1962.
   • SCBG observations given to the Government
5. 610. As soon as the complaint was communicated to it, the Government forwarded the CDT’s allegations to the SCBG. In its reply dated 18 February 2003, the SCBG makes the following observations.
6. 611. Firstly, the SCBG states that transfers did indeed take place but that it is not a case of disciplinary transfers affecting some of the salespeople. These transfers affected almost the entire sales force of all the distribution centres. They were due to a change in the distribution system, which had the effect of transferring most of the sales routes. According to the SCBG, the staff unreservedly supported the organizational restructuring resulting from this change and is fully committed to rising to the challenges imposed by sudden competition in a market which used to be dominated by a quasi-monopoly. The SCBG cites the enterprise’s continued normal activity as proof of the above.
7. 612. The SCBG adds that a change of post in high or low season is not a new concept for the staff. It is in fact normal to redeploy staff according to the increase in sales routes or when the production is at a low ebb. It emphasizes that this is a structural aspect of its work.
8. 613. With regard to the two dismissals, the SCBG confirms that they occurred not because the two workers were trade union members, but because they were guilty of serious professional misconduct, i.e. leaving work voluntarily and without reason, refusing to carry out work which was part of their duties and uttering insolent remarks and insults towards staff and superiors. The SCBG states that this serious misconduct has been corroborated by testimonies written and signed by their colleagues and superiors. The two workers in question received dismissal letters dated 25 April 2002, which were also addressed to the office of the Ministry of Employment.
9. 614. Finally, the SCBG recalls that, in accordance with the Dahir of 29 October 1962, social dialogue with staff representatives – legal representatives of the employees – is an essential component of its management. Various protocols of agreement to this effect have been signed with staff representatives, the last of which is dated 6 January 2003 and which the SCBG will supply to the Government on request.

C. The Committee’s conclusions

1. 615. The Committee notes that the complaint originated in a dispute between the trade union executive, affiliated to the complainant, and the Central Carbonated Beverage Company (SCBG), after the executive was established by SCBG workers, in accordance with Dahir No. 1-57-119 of 16 July 1957 on trade unions. The Committee notes that the complaint concerns, on the one hand, the SCBG’s refusal to recognize the executive and to engage in dialogue with it and, on the other hand, individual acts – including two dismissals – which affected the professional situation of the workers who, at least in the case of the persons named in the complaint, are members or officials of the trade union executive.
2. 616. Before examining these two aspects, the Committee would like to return to the allegation to which the Government has not responded. The Committee notes that both the complaint and the Government’s reply indicate that the latter intervened directly at the same time as certain applicable national procedures were being implemented: i.e. the Government attempted to bring about conciliation between the parties to the dispute. The labour inspector also sent a warning to the SCBG, dated 12 April 2002, concerning non-compliance with the provisions of the Dahir of 29 October 1962 on staff representation in enterprises. A violation notice was served for the same reason and submitted on 31 May 2002 to the competent court. Consequently, the Committee must note that the Government has taken some initiatives concerning the trade union situation in the enterprise, particularly with a view to remedying the failure to comply with the legislation. The question is therefore whether the Government’s action in this case is adequate with regard to the commitments it has made concerning freedom of association. The Committee recalls that it is for the Government to ensure that the provisions of Conventions which it has freely ratified are fully respected in the whole of its territory, in law and in practice.
3. 617. With regard to recognition of the trade union executive, the Committee observes, firstly, that the legality of its constitution is not called into question. However, the Committee notes that the SCBG considers the staff representatives to be “legal representatives of the employees in accordance with the Dahir of 29 October 1962” and that agreements have been signed between the enterprise and the staff representatives. The SCBG therefore seems to favour the elected staff representatives, rather than trade union organizations, in the process of consulting and negotiating within the enterprise. This is confirmed by the SCBG’s letter of 7 May 2002 attached to the Government’s reply, which refers to ongoing dialogue with the workers’ elected representatives, without making the slightest mention of the recently established trade union executive.
4. 618. In this regard, the Committee recalls that the Workers’ Representatives Convention, 1971 (No. 135), contains provisions guaranteeing that, where there exist in the same undertaking both elected representatives and trade union representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 951]. Moreover, the Committee emphasizes that the Collective Agreements Recommendation, 1951 (No. 91), stresses the role of workers’ organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exists. In these circumstances, direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest, op. cit., para. 785].
5. 619. In these circumstances, the Committee asks the Government to take all the necessary measures so that the trade union executive duly established can freely carry out its activities within the SCBG and negotiate the workers’ conditions of employment directly with the enterprise. The Committee requests the Government to keep it informed of the specific measures taken in this regard and their results.
6. 620. With regard to the individual measures affecting some of the unionized workers, the Committee notes that the SCBG acknowledges that transfers took place, while emphasizing that they affected the entire sales force and that they were due to a change in the distribution system. The Committee also observevs that the SCBG admits that Mr. Najahi Mohamed and Mr. Chahrabane Azzedine were dismissed by a letter dated 25 April 2002, but states that these dismissals occurred not because they were trade union members, but as a result of serious professional misconduct.
7. 621. The Committee notes that the SCBG does not specify whether the transfers to which it refers mean changes of workplace or changes in duties. Moreover, neither the SCBG’s letter nor the Government’s reply contain any comment on the financial consequences of the changes of duties or on the dismissals referred to by the complainant. The Committee also notes that the transfers acknowledged by the SCBG affected the category of staff which decided to set up a trade union executive and that the two dismissals involve an official and a member of the trade union executive. The Committee further notes that the two dismissals occurred soon after the trade union executive was established and that nothing in the case contradicts the complainant’s allegation to the effect that the transfers and other measures also closely followed the setting up of a trade union executive. Lastly, the Committee notes that the violation notice by the labour inspector dated 19 April 2002, submitted to the judicial authorities, states that the SCBG committed an offence under the legislation protecting staff representatives at work by dismissing Mr. Chahrabane Azzedine, a member of the trade union executive, without seeking the opinion of the labour inspector. In these circumstances, the Committee cannot rule out the possibility of a connection between, on the one hand, the establishment of the trade union executive and sales staff being involved in trade union activities and, on the other hand, the transfers and dismissals affecting certain members of this category of staff; the Committee also takes into account the SCBG’s dismissive attitude to the trade union executive.
8. 622. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. In this regard, the Committee notes that Dahir No. 1-57-119 of 16 July 1957 on trade unions, as amended and supplemented by Act No. 11-98, prohibits in particular all forms of anti-union discrimination and that this prohibition is accompanied by severe penalties. In these circumstances, the Committee requests the Government to ensure that inquiries are promptly opened in order to determine whether: (1) the 20 trade union members named in the appendix to the complainant’s detailed report have been prejudiced because of their trade union activities; (2) Mr. Najahi Mohamed and Mr. Chahrabane Azzedine were dismissed because of their trade union activities. If the anti-union nature of these measures – or part thereof – is proven, the Committee requests the Government to take the necessary steps, as appropriate, to ensure that: (1) the measures affecting the 20 trade union members are immediately lifted; (2) Mr. Najahi Mohamed and Mr. Chahrabane Azzedine are immediately reinstated in their posts, with the payment of the wages due. Lastly, the Committee requests the Government to ensure strict application of the legislative provisions relating to the protection of workers against anti-union discrimination and to keep it informed on all aspects of the matter.