Report in which the committee requests to be kept informed of development - Report No 338, November 2005

Case No 2404 (Morocco) - Complaint date: 19-JAN-05 - Closed

Allegations: The complainant alleges that the Government has not taken the desired measures to protect workers’ right to organize and to collective bargaining, or to protect them against acts of anti-union discrimination from a private employer (Somitex SA). The complainant alleges, in particular, the dismissal of 14 union representatives engaged in legitimate union activities, the collective dismissal of 145 workers who had gone on strike to protest against the company’s attitude, management’s refusal to attend meetings and to bargain collectively, and its stalling tactics during negotiations

1024. The complaint is contained in a communication from the International Textile, Garment and Leather Workers’ Federation (ITGLWF) dated 19 January 2005, presented on behalf of the Moroccan Labour Union (UMT).

1. 1025. The Government sent its reply in a communication dated 9 March 2005.
2. 1026. Morocco has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135). It has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 1027. In its communication of 19 January 2005, the International Textile, Garment and Leather Workers’ Federation (ITGLWF) explains that the Somitex SA company is situated in the industrial zone of Hay Rahma in Salé, Morocco. An election of workers’ representatives was held there on 15 September 2003; 12 (six permanent and six substitutes) of the 14 representatives elected were members of the Moroccan Labour Union (UMT), which represented 194 Somitex SA workers.
2. 1028. In December 2003, three months after the election, the union called a general assembly during which the UMT members were to elect the executive committee of the union section, made up of the 12 elected representatives and two other UMT members. Shortly afterwards, Mr. Abdelhay Bessa, the company director, decided to dismiss four workers on the grounds that they were employed on fixed-term contracts. Examination of the dismissed workers’ employment contracts shows however that they were in fact employed on contracts without limit of time.
3. 1029. The local union section requested a meeting with the management to discuss the dismissals and other matters regarding working conditions in the company. The wages paid were often below the statutory minimum wage, the working hours were longer than the statutory maximum and verbal and sexual harassment were common practice among managers. Between December 2003 and March 2004, Mr. Bessa systematically refused to negotiate with the union representatives and even refused to attend the meetings called by the local representative of the Labour Ministry. At meetings, the management would send representatives with no powers of negotiation. However, the authorities have not taken any measures to force the company to enter into dialogue.
4. 1030. A meeting was held on 1 March 2004 under the supervision of the local representative of the Labour Ministry. The company representatives at first stated clearly that they refused to negotiate with the union representatives but, after the ministry representative intervened, found an excuse to put off the negotiations until a later date, saying that they would only reopen the debate after receiving a written statement of the workers’ concerns, which was done that same day. The union’s demands were that all the dismissed workers be reinstated, that the verbal and sexual harassment stop, that the posts and specialities of workers be respected and that interference by managers in the work of the union representatives and discrimination against the latter on account of their union membership stop. It also demanded that the law be respected in regard to the minimum wage, working hours and overtime, occupational health and safety, the right of breastfeeding women to the statutory hour’s nursing break per day, periods of unpaid temporary lay-offs, payment for two public holidays (21 and 22 August) and that premises and facilities be made available for union activities.
5. 1031. On 12 March 2004, during a meeting held on company premises, the management simply stated that it rejected all the union’s demands. The union informed the local representative of the Ministry about this and asked him to intervene urgently and to order the company to respect the law. During February and March 2004, the union asked the Ministry to intervene 15 times.
6. 1032. Between 15 and 17 March, the company dismissed all the union representatives, members of the UMT and other union members on completely fabricated grounds. The dismissal letters cited a variety of alleged offences, notably taking part in union activities and organizing a union meeting without the permission of the employer. Although national legislation requires the company to inform the labour authorities before dismissing workers’ representatives, in fact it only sent the notices three to four weeks after the workers concerned had been dismissed. The labour inspectorate states that a report condemned the Somitex SA company for this violation of the procedure intended to protect union representatives from acts of anti-union discrimination, but it has refused to publish the report in spite of repeated requests from the local union. It should be noted that the other two non-unionized workers’ representatives were not dismissed.
7. 1033. Mr. Abdellah Laksir, Mr. Lahcen Marir, Mr. Khalid Maljoum (elected representatives), Mr. Brahim Boussouga and Ms. Malika Hoummana (substitute repsresentatives) were dismissed on 15 March 2004. Ms. Karima Albaz, Ms. Malmane Aït Wasse (elected representatives), Ms. Drissia Silââ and Mr. Adil Khribchi (substitute representatives) were dismissed on 16 March 2004. Ms. Milouda Alwarhi (elected representative), Ms. Fatna Alwafi, Ms. Alaichi Nazha, Ms. Aicha Almardanichi and Mr. Khaled Almhachi were dismissed on 17 March 2004.
8. 1034. On 17 March 2004, several workers were physically harassed. Some female workers fainted and were sent to hospital. In the next few days, they received letters from the company explaining that they had been sent to hospital following a bout of mass hysteria and that they would only be able to come back to work if they provided a medical certificate from a neurologist stating that they did not suffer from hysteria.
9. 1035. The union again alerted the local representative of the Labour Ministry about the situation at the Somitex SA company and asked him to intervene, telling him that workers would wear an armband in protest at the behaviour of the management. That same day, some workers were dismissed on the grounds that they had organized an illegal action by distributing armbands to workers.
10. 1036. On 20 March 2004, the union again requested the start of negotiations and the intervention of the local representative of the Labour Ministry. After giving the legal notice period, the workers decided to go on strike on 7 April in support of their representatives and in protest against the company’s refusal to recognize their right to freedom of association and collective bargaining. On 9 April, the management prevented 145 workers who had taken part in the strike from returning to work and entering company premises. All these events were recorded in detail in a report drawn up by a Labour Ministry bailiff. However, following these lay-offs and collective dismissals, the Government has not taken any measures to force the employer to reinstate the unfairly dismissed workers. This inertia on the part of the authorities has meant the employer has been left free to take any decisions that it sees fit to its own advantage. In fact, the workers were in such a precarious position that they had no other choice but to accept the severance pay offered by the company even though it was an amount far below the legal minimum. In addition, to obtain this money offered by the company, some workers were forced to drop their accusations against the managers who had harassed them. The complainant provides an example of a suit that was withdrawn.
11. 1037. When the complaint was lodged, more than eight months after the events, seven workers (including four union representatives) were still refusing to accept the severance pay offered by the company and had brought legal action so they could be reinstated. Faced with the apathy of the Government in upholding the law, the other workers had had no other choice but to accept the meagre payments offered by Somitex SA. Most of them are currently unemployed and have stated that if they were reinstated, they would be prepared to return the money that they had been forced to accept.
12. 1038. Despite the union’s numerous appeals, the Government has so far refused to take any measures at all to force the company to respect national law and the internationally recognized labour standards. Although a works council was recently set up at the factory since a new law was passed in June 2004, only two elected representatives sit on it, with seven other so-called workers’ representatives who were not elected. The law provides that works councils should be made up of one employer representative, two workers’ representatives and at least one or two union representatives.
13. 1039. Presently, the union is still demanding the reinstatement of the seven workers who refused the severance pay offered by the company, the reinstatement of all the workers who had no choice but to accept the payment because of the Labour Ministry’s inertia, and respect for the workers’ right to freedom of association and collective bargaining.
14. 1040. In conclusion, the complainant alleges that the Government has not ensured the respect of the rights guaranteed in Conventions Nos. 87 and 98, and requests that it take measures without delay to force the Somitex SA company to reinstate the dismissed workers and union representatives and to respect their rights to freedom of association and collective bargaining.
15. B. The Government’s reply
16. 1041. In its communication of 9 March 2005, the Government states that the complaint concerns a dispute over payment for overtime within a private company (Somitex SA which, at the time, employed 330 people) in the town of Salé, as stated in a report dated 15 June 2004 by the local office of the Labour Ministry, included with the Government’s reply. According to the labour inspector who was in charge of the inquiry, the “indirect” cause of the dispute was the distinction between overtime worked and making up of hours lost because workers had not achieved the required level of production. Regarding the “direct” cause, the report indicates that, at the same time as the dialogue to resolve the overtime dispute, on 15 March 2004, the company decided to move certain (female) workers to other posts within the factory. The general secretary of the local section of the UMT requested explanations as to why the employer took this measure, and the employer believed that he had gone beyond his mandate and his intervention constituted interference in the management of the company and an attempt to incite workers to disobedience. The director of the company therefore dismissed the union leader and all those who sided with him. In total, 194 workers were dismissed.
17. 1042. Officials of the Labour Ministry intervened as soon as they were informed of the conflict and tried to find a solution; several meetings were held in the company, at the local office of the Labour Ministry and in the prefecture, as indicated in the complaint itself, which refers to several meetings called by the authorities. Following direct dialogue between the parties, 186 workers, including the general secretary of the union, reached an amicable settlement and received their severance pay, calculated in the presence of the labour inspectorate. The remaining eight workers decided that they would rather settle the dispute in the competent court.
18. 1043. The labour inspector also wrote three offence reports, dated 15 June 2004, which give details of several violations of the Labour Code: the dismissal of eight persons, in violation of article 67, punishable in accordance with article 78; the dismissal of 12 persons without the agreement of the labour inspector, in violation of article 457 of the Code, punishable in accordance with article 468; the dismissal of 14 members of the union executive committee engaged in union activity, in violation of article 428. These reports have been sent to the competent court for a ruling.
19. 1044. In his report, the inspector states that the issue of sexual harassment had never been raised before the start of the dispute and the meetings between the parties. No complaint has been made on this issue to the labour inspectorate or to the judicial police. The inspector concludes that the social environment is stable, even if the economic activity of the company has not returned to normal.
20. 1045. The Government concludes that it has respected the rules on freedom of association and assures the Committee that it is sparing no effort to ensure that the exercise of the right to organize is protected, disputes are settled and social dialogue is promoted.

C. The Committee’s conclusions

1. 1046. The Committee notes that the allegations in this complaint concern acts of anti-union discrimination, in particular the dismissal of union representatives engaged in legitimate union activities, and the collective dismissal of workers who had gone on strike to protest the company’s attitude. The complainant also alleges that the company management refused to attend and to participate in good faith in collective bargaining meetings, during which they used stalling tactics. The Government states that the dispute had both indirect causes (a dispute about the nature of hours worked: overtime or making up time for production shortfall) and direct causes (the dismissal of union leaders, without the authorization of the labour inspectorate and the unionized workers who showed solidarity with them).
2. Collective bargaining
3. 1047. Regarding collective bargaining, the Committee notes the allegations that, in spite of several interventions by the competent services of the Labour Ministry, the union had great difficulty in engaging the employer in discussions, or even getting the employer to come to the negotiating table. In addition, when they were present, the management representatives did not have any real negotiating power. In this regard, The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 814-815]. This means that any unjustified delay in the holding of negotiations should be avoided [see Digest, op. cit., para. 816]. The Committee believes that, when one party shows obvious reticence in negotiations and does not take part in good faith, the competent authorities have a particular responsibility, especially if the Government has ratified Convention No. 98, and should use all available procedures in national law to facilitate the progress of negotiations. While noting that ministry officials intervened several times in this case, the Committee urges the Government to instruct the competent services to intervene more actively in the next round of collective bargaining at the Somitex SA company, so as to ensure the progress of negotiations in good faith, in the light of the abovementioned principles. The Committee requests the Government to keep it informed of the development of the collective bargaining situation in the company.
4. Dismissals
5. 1048. Regarding the dismissals, the Committee notes that, even though there are certain contradictions between the complainant’s allegations and the Government’s reply, in particular with regard to the number and identities of those concerned, according to the latest documents submitted to the Committee by the complainant, 194 workers (of a total workforce of 330, that is almost two-thirds) were dismissed, 186 of them accepted severance pay and eight chose to take legal action. The Committee also notes that, according to the complainant, most of the 186 workers who accepted the out-of-court settlement were in fact forced to do so because they were in a precarious situation and that some of them, in order to obtain their severance pay, had to withdraw their accusations against the managers who had harassed them.
6. 1049. The Committee also notes that the labour inspectorate wrote three reports of violations of the labour legislation concerning a total of 34 persons: eight persons dismissed in violation of article 67 of the Labour Code; 12 persons dismissed without the agreement of the labour inspectorate, in violation of article 457 of the Code; and 14 members of the union executive committee, in violation of article 428 of the Code.
7. 1050. Regarding the dismissed union leaders, the Committee notes that they were engaged in legitimate union activities, i.e. representing the interests of workers and collective bargaining for improved working conditions. The Committee recalls in this regard that adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on the account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 724]. These principles are particularly relevant in this case as the local UMT branch has been practically deprived of its leadership as result of dismissals.
8. 1051. The Committee also notes that the two non-unionized workers’ representatives were not affected by the dismissals, which bears out the suspicion that the dismissals were acts of anti-union discrimination by the employer.
9. 1052. Taking account of the fact that Morocco has ratified the Workers’ Representatives Convention, 1971 (No. 135), the Committee requests the Government to take the necessary measures without delay to ensure that the union leaders dismissed in violation of national law, according to the labour inspectorate’s findings, effectively enjoy all the protections and guarantees provided by that law, including by reinstating them or, if reinstatement is not possible, by ensuring that the union leaders in question receive appropriate compensation taking account of the damage caused and the need to avoid the repetition of such acts in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
10. 1053. As for the other workers, the information presented to the Committee indicates that they were dismissed for showing solidarity with the members of their union executive committee, for going on strike and for wearing armbands expressing their support for their leaders in other words, legitimate union activities. Taking note of the offence reports written by the labour inspector, particularly regarding the dismissals made without prior authorization as stipulated in national law, the Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of 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]. Consequently, the Committee requests the Government to take the necessary measures so that all the dismissals carried out in violation of national law, according to the findings of the labour inspectorate, are punished in accordance with that law, including cancellation of the dismissals and reinstatement of the workers concerned or, if reinstatement is not possible, by ensuring that the union leaders in question receive appropriate compensation taking account of the damage caused and the need to avoid the repetition of such acts in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
11. 1054. Regarding the specific case of the eight workers who have refused the payments offered by the employer and brought legal action against the employer, the Committee trusts that the competent courts will give a verdict based on the principles of freedom of association expressed above. The Committee requests the Government to inform the Committee of the judgement in the case of these eight workers as soon as it is handed down.
12. 1055. The Committee requests the Government to indicate whether the employer concerned by the present complaint has been consulted and, if not, to obtain the employer’s view through the relevant employers’ organization.

The Committee's recommendations

1. 1056. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government to instruct the competent services to intervene more actively in the next round of collective bargaining at the Somitex SA company, so as to ensure the progress of negotiations in good faith, and requests the Government to keep it informed of the development of the collective bargaining situation in the company.
   • (b) The Committee requests the Government to take the necessary measures without delay to ensure that the union leaders dismissed in violation of national law, according to the labour inspectorate’s findings, effectively enjoy all the protections and guarantees provided by that law, including by reinstating them or, if reinstatement is not possible, by ensuring that the union leaders in question receive appropriate compensation taking account of the damage caused and the need to avoid the repetition of such acts in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
   • (c) The Committee requests the Government to take the necessary measures so that all the dismissals carried out in violation of national law, according to the findings of the labour inspectorate, are punished in accordance with that law, including cancellation of the dismissals and reinstatement of the workers concerned or, if reinstatement is not possible, by ensuring that the union leaders in question receive appropriate compensation taking account of the damage caused and the need to avoid the repetition of such acts in the future. The Committee requests the Government to keep it informed of the measures taken in this regard.
   • (d) The Committee requests the Government to inform it of the judgement as soon as it is handed down in the case of the eight workers who refused the payments.
   • (e) The Committee requests the Government to indicate whether the employer concerned by the present complaint has been consulted and, if not, to obtain the employer’s view through the relevant employers’ organization.