Interim Report - Report No 372, June 2014

Case No 3024 (Morocco) - Complaint date: 24-MAR-13 - Follow-up

Allegations: The complainant organization reports the authorities’ exclusion of the Democratic Union of the Judiciary (SDJ) from all collective bargaining despite it being the most representative organization in the sector, harassment of the organization’s members and the violent dispersal of peaceful demonstrations by the security forces

1. 376. The complaint is contained in a communication from the Democratic Federation of Labour (FDT) dated 24 March 2013.
2. 377. The Government sent its reply in a communication dated 4 July 2013.
3. 378. Morocco has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers’ Representatives Convention, 1971 (No. 135), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154). 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. 379. In a communication dated 24 March 2013, the FDT states that in 2011 Morocco drafted and approved a new Constitution enshrining freedoms and human rights. Of particular note are article 8, which emphasizes the role of trade union organizations in the protection of members’ social and economic interests and rights and encourages the public authorities to engage in collective bargaining, and article 29, which guarantees the freedom to join a trade union and the right to strike, and states that the conditions under which the right to strike may be exercised shall be determined by an organic law. According to the FDT, the new constitutional framework provides an opportunity for the Government to increase its engagement in protecting freedom of association and to give fresh impetus to collective bargaining, thereby complying with international labour standards. The FDT considers that there is no longer any basis for reservations and reticence towards ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
2. 380. The FDT recalls the complaints presented over the years by trade union organizations in relation to freedom of association and collective bargaining, and the conclusions and recommendations of the International Labour Organization’s supervisory bodies on the matter, in particular the Committee on Freedom of Association, the Committee of Experts on the Application of Conventions and Recommendations and the Committee on the Application of Standards of the International Labour Conference, and notes that the Government has not adopted the necessary legislative reforms.
3. 381. The FDT reports many violations of freedom of association and collective bargaining by the authorities in relation to one of the federation’s affiliates, the Democratic Union of the Judiciary (SDJ). The FDT states that the SDJ is the most representative trade union in the justice sector, in terms of both the number of members and the number of representatives elected to joint committees (65 per cent of representatives at the regional level and 99 per cent at the central and national levels). According to the complainant organization, the SDJ’s status as the most representative union and the absence of any legislation concerning collective bargaining in the public service make it the logical choice of organization to represent the judiciary in labour relations and any collective bargaining in the sector.
4. 382. The complainant organization reports that, since the Government came into office, the Ministry of Justice has declined to have any dealings with the SDJ, thereby contravening the national practice in collective bargaining. The complainant organization also reports acts of harassment and discrimination towards SDJ leaders and members, and accuses the Government of the actions set out below.
5. 383. In 2011, the Government purposely excluded the SDJ from the work of the High Authority for the Reform of the Judicial System, despite the fact that the reform concerned the working conditions of court clerks and judiciary officials in general. The union’s various protest actions failed to change the situation.
6. 384. The Ministry of Justice refuses to apply an agreement signed in June 2006 which constitutes a framework agreement for the organization of labour relations in the sector (a copy of the agreement is enclosed with the complaint). The complainant organization reports that the Ministry of Justice refuses in particular to organize the monthly negotiation meetings provided for in the agreement. According to the complainant, a new agreement was signed with the current Minister of Justice following mediation from human rights associations. The new agreement provides for dialogue and negotiation sessions to be held at the union’s request. However, besides the fact that the Ministry of Justice has never followed up on the SDJ’s many written requests for such sessions, the complainant reports that the agreement was signed by another union in the judiciary which it considers to be closely allied to the Government.
7. 385. The Ministry of Justice published a statement on 27 December 2012 officially announcing a boycott of the SDJ’s activities and refusing any dialogue (a copy is provided by the complainant). The announcement effectively prevents the union from developing its activities, in violation of the Constitution of Morocco and universal principles of freedom of association. Such arbitrary and unilateral action by the Ministry of Justice leads the complainant to question the purpose of adopting rules and laws or of organizing elections to associations to measure representativeness.
8. 386. The Ministry of Justice harassed the SDJ’s leaders by demanding explanations and making other inquiries on the grounds of incitement to strike (the complainant appended a communication to the complaint). By way of example, the complainant reports that the Ministry asked union leaders for explanations about absences after a strike of which it had in fact been informed. The complainant also reports internal circulars calling for an end to union members’ rights to be absent to attend union training and participate in union meetings.
9. 387. The SDJ deputy general secretary was suspended without cause from his position as head of the registry at the court of first instance of Ksar el-Kebir (a city in northern Morocco), barely a week after a demonstration was organized during a visit from the Minister of Justice (document appended to the complaint).
10. 388. The Government violently suppressed peaceful demonstrations organized by the SDJ to protest against the total lack of negotiation and its exclusion from the work of the High Authority for the Reform of the Judicial System. For example, the security forces violently dispersed a peaceful sit-in in front of Al Akhaoayne school in Ifrane on 19 October 2012, injuring the SDJ general secretary, Mr Abdessadek Saidi, who had to be admitted to the clinic in Fes for a week (the complainant appended a medical certificate). The security forces were also extremely violent in dispersing a group of trade union activists during a peaceful demonstration in front of the Tangier court of first instance on 1 February 2013. The victims, who are named by the complainant, had to be taken to hospital by ambulance. On 9 February 2013, a group of trade union leaders were forcibly detained by the management and security staff of the Mohammedia social welfare association’s summer resort. The public prosecutor’s office refuses to register any complaint in relation to the matter.
11. 389. The Government is withholding pay from striking SDJ activists. The complainant notes in this connection that the withholding of pay is without any legal basis since, although the Labour Code provides for the suspension of an employment contract during a strike, there is no similar instrument for the public service. Furthermore, the FDT observes that the Government is taking advantage of the legal lacuna to impede the exercise of the right to strike by withholding pay only from the members of certain unions.
12. 390. The Minister of Justice refused to debate with the SDJ general secretary in a television broadcast in January 2013. At the last minute, the television channel’s management told the union leader that the Minister of Justice had refused to meet with him in the same TV studio. The complainant states that this was a denial of a trade union leader’s right of expression and his right to use the public media.
13. 391. The complainant reports the Minister of Justice’s hostility towards the SDJ in repeated aggressive statements, despite the FDT having corresponded with the Head of Government to request his intervention to put an end to the excesses of the Minister of Justice (copies are appended by the complainant).
14. 392. The complainant states that, as a result of all these attacks on the SDJ by the authorities, a judicial coalition consisting of 18 independent civic associations which monitor and advocate for human rights announced its solidarity with the SDJ.

B. The Government’s reply

1. 393. In a communication dated 4 July 2013, the Government recalls that Morocco ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), on 20 May 1957 and adopted the Dahir (Royal Decree) of 16 July 1957 governing trade unions, which grants freedom of association to workers, including public servants. The recognition of freedom of association led to the establishment of a pluralist trade union movement comprising more than 25 trade union associations, four of which are considered to be the most representative. The adoption of the new Labour Code in 2003 provided an opportunity to develop the right to organize, by granting increased protection to workers’ representatives and providing them with the necessary facilities, in the light of the Workers’ Representatives Convention, 1971 (No. 135), which was ratified in 2002.
2. 394. The Government also states that section 14 of the General Public Service Regulations (Dahir of 24 February 1958) provides that the right to organize shall be exercised by public servants under the conditions set out in the legislation in force. The same section provides that “membership or non-membership of a trade union shall have no bearing on matters concerning recruitment, promotion, assignment or the overall circumstances of the officials to whom these Regulations apply”. With a view to enabling officials with trade union responsibilities to carry out their union and representative duties, section 41 of the Regulations provides for the granting of special leave or absences on full pay which are not counted as part of the regular leave for duly mandated representatives of public servants’ unions or elected members of governing bodies to attend union, federation, confederation and international congresses.
3. 395. Public servants exercise the right to organize in full freedom, as do workers in the private sector. There is significant trade union activity in many areas of the public service, such as the education, healthcare, justice and financial sectors and local government. The right to strike is also exercised in full freedom in the public sector, including in the justice sector. The Government states that the justice sector, in which several trade unions are active, has had several general strikes which have negatively impacted on the interests of users and litigants, but the Government took no action against the strikers even though no provision had been made to ensure a minimum service.
4. 396. As regards collective bargaining in the public service, legislation was introduced to establish a Higher Council of the Public Service, which has a consultative role with regard to bills and regulations affecting officials covered by the General Public Service Regulations and in-service training for officials and employees of the State and local governments.
5. 397. Furthermore, public servants’ unions present their candidates for election in the framework of joint committees, in order to represent the professional interests of public servants. Negotiation of the various subjects which affect the public service takes place in the framework of national social dialogue within the Public Sector Committee. Areas of collective bargaining in the public sector have included promotion of public servants, revision of the regulations pertaining to certain categories of public servants, in-service training, acquisition of permanent contracts for temporary workers, social activities, retirement, family allowances, the performance appraisal system for public servants, and union offices. Since 1996, the aforementioned areas have been the subject of four collective agreements between the Government and employers’ and workers’ organizations (dated 1 August 1996, 23 April 2000, 30 April 2003 and 26 April 2011). Furthermore, with a view to promoting collective bargaining in the public service, the Government ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), on 4 June 2013. It had previously ratified the Collective Bargaining Convention, 1981 (No. 154).
6. 398. Concerning the allegations that the Ministry of Justice and Freedoms violated the right to collective bargaining, the Government states, firstly, that the concept of the most representative trade union is set out in Title V of the Labour Code, section 425 of which provides: “In the determination of the most representative trade union at the national level, account must be taken of the following: the union must have polled at least 6 per cent of the total number of staff delegates elected in the public and private sectors, it must enjoy effective independence and it must have contractual capacity. In the determination of the most representative trade union at the enterprise or organization level, account must be taken of the following: the union must have polled at least 35 per cent of the total number of staff delegates elected at the enterprise or organization level and it must have contractual capacity.”
7. 399. The Government acknowledges that there are no criteria in the legislation for the determination of the most representative union in the public sector. This is remedied in the Trade Unions Bill, section 37 of which provides that, in order to enjoy the status of the most representative trade union, the union must poll at the national level in the public sector at least 6 per cent of the total number of staff representatives within the joint administrative committees.
8. 400. The Government states that, despite the legal lacuna, the Ministry of Justice and Freedoms granted the SDJ a privileged position in the framework of the agreements concluded. However, the Government recalls that the Committee on Freedom of Association has stated that the concept of the most representative union must not be used to exclude other trade union organizations which do not satisfy the conditions of representativeness but which nevertheless retain the right to represent their members, such that public servants are not encouraged to join only the most representative union.
9. 401. As regards non-representation of the SDJ in the High Authority for the Reform of the Judicial System, the Government explains that the authority comprises 40 individuals from various sectors whose appointment is unrelated to the category, profession or union to which they belong. The High Authority’s mandate is to prepare a draft agreement for an extensive, comprehensive reform of the judicial system. It has no decision-making power or oversight over negotiations with any party. Its role is restricted to setting the main lines of the reform and the dialogue methodology, and collecting opinions and proposals for submission to regional debates. The Government adds that a link has been added to the Ministry of Justice website (www.justice.gov.ma) to receive citizens’ comments and proposals concerning the reform of the judicial system.
10. 402. According to the Government, the real discussion on the main lines of the reform took place in 11 national debates held in the various regions of Morocco. The Office for the Administration of National Dialogue – an umbrella organization comprising more than 180 public and political establishments and those linked to political parties, as well as representatives of unions and associations – officially invited the SDJ to join. However, the union flatly rejected the offer in several communications, on the pretext that it was not represented in the High Authority (document appended by the Government). The Government emphasizes that the union attempted to disturb meetings of every regional debate and to rally its members to occupy the premises in which the debates were held.
11. 403. Regarding the allegations of non-compliance with the agreements concluded with the Ministry of Justice and Freedoms, the Government states that the Ministry in question attempted to institutionalize sectoral dialogue, either centrally or regionally, with all trade unions in the sector, with a view to seeking solutions to the public servants’ demands through two mechanisms: (a) central dialogue organized within the Central Committee comprising representatives of the Ministry and the national offices of the trade unions; and (b) regional dialogue organized regularly in the regional dialogue committees between the regional directors in the appeal courts of the Kingdom and the regional or local offices of the trade unions.
12. 404. In this context, the Minister of Justice and Freedoms met with the national executive committees of the trade unions on 1 February 2012 after the new Government had been formed. A series of meetings on sectoral dialogue was initiated, including three with the SDJ. However, according to the Government, despite the regular dialogue and positive outcomes, the SDJ adopted a negative position and chose to boycott the meetings in response to the Ministry’s conclusion of an agreement with the National Association of the Justice Sector, which is the second largest union in the sector, and the National Trade Union of the Judiciary. The Government points out that the Ministry has always wanted to have constant dialogue with all trade unions, some of whose demands are identical while others are different. The Government states that the Ministry’s conclusion of an agreement not only with the SDJ but also with the National Association of the Justice Sector and the National Trade Union of the Judiciary enables all public servants in the Ministry of Justice, even those who are not members of the SDJ, to exercise their right to organize.
13. 405. Regarding the allegations of violations of freedom of association during peaceful protests, the Government states, firstly, that the Ministry of Justice and Freedoms had decided to give the SDJ priority in the sectoral dialogue. However, the union chose to publish statements insulting, defaming and denigrating the head of the judiciary (document provided by the Government). The Government states that the SDJ deliberately chose to be confrontational by urging its members to obstruct the movements of the Minister of Justice and transporting hundreds of members in order to prevent the Minister from reaching the court of first instance in Ouyoune (southern Morocco), which was hosting a meeting of the High Authority for the Reform of the Judicial System. The union also disrupted the normal activities of the court, thereby infringing the rights of citizens, litigants and court clerks.
14. 406. Despite the SDJ’s practices which, in the Government’s view, bear no relation to legitimate trade union action, the Ministry of Justice and Freedoms is willing to resume dialogue with the SDJ, provided that it stops such practices. The Government states that the SDJ has clearly chosen to continue using the same kinds of defamatory statements and blocking tactics.
15. 407. Regarding the allegations of harassment of SDJ union leaders, the Government states that the matter concerns several offences committed by one administrative official in a senior court position in the capital. According to the Government, the official attempted to abuse his authority to impose the viewpoints of his union (calling for a strike) on his subordinates who were members of other unions. The Government considers that to be a violation of public servants’ freedom to choose their affiliation and whether to engage in strike action. The union official was therefore asked to provide an explanation. The Government observes that the fact that the official holds a senior position in the court administration, alongside several SDJ members, is itself proof that the Ministry of Justice and Freedoms respects union action and does not take it into account when making managerial appointments.
16. 408. On the subject of the allegations that it refused to provide trade union leaders with the facilities to perform their union duties and participate in the work of their executive bodies, the Government denies any such conduct by the Ministry of Justice and Freedoms and encloses a copy of Circular No. 49 4/1 which the Ministry sent to its departments concerning the applicable procedures for approval of absences for union representatives.
17. 409. In response to the allegations that the SDJ deputy general secretary was suspended from duty, the Government states that the action was taken in the general interest and has nothing to do with his union affiliation. It notes that the individual in question has lodged an appeal against the administrative decision, the outcome of which is still pending, and that it is now a matter for the courts to decide.
18. 410. As regards the alleged assaults on SDJ members and leaders, including its general secretary, during demonstrations, the Government emphasizes that several members of the SDJ attempted to prevent individuals intending to participate in a debate from entering the meeting premises in the town of Ifrane. The same members also attempted to occupy the premises by force. The security forces were obliged to intervene, on the orders of their superiors, to ensure the safety of people and property but did not resort to excessive violence, contrary to what is stated in the complaint. According to the Government, if assaults were in fact perpetrated, the victims are entitled to take legal action.
19. 411. As regards the position of the “Moroccan rights coalition” towards the attacks allegedly suffered by the SDJ, the Government points out that the document appended to the complaint to support this assertion is merely a letter to the SDJ informing it that its complaint had been received and had been forwarded to the relevant bodies. The document in no way constitutes proof of the veracity of the attacks in question. The Government emphasizes that the “Moroccan rights coalition” has thus far not published any statements or viewpoints on the matter.
20. 412. On the subject of the deduction of pay for strike days from the participating public servants, the Government recalls, firstly, that the Committee on Freedom of Association considers that such a measure is not, in principle, inconsistent with the principles of freedom of association. The Government is of the view that it is allowed in most countries and has been recognized in many decisions in the Moroccan courts, such as the Agadir administrative court decision No. 183/2005, published on 20 April 2001, and the Rabat administrative court decision No. 208/07/05 of 17 October 2007.
21. 413. Lastly, in response to the allegation that the SDJ was denied the right to make statements in the media, the Government states that, while the union’s general secretary was prevented from participating in the “En direct avec vous” live television broadcast on the 2M channel alongside the Minister of Justice and Freedoms, that was not attributable to the Minister. The Government notes that the Minister had previously agreed to meet with the SDJ general secretary in the context of a broadcast by the Aswat radio station on 31 October 2012. However, the union leader had made inappropriate remarks on that occasion. The Minister of Justice and Freedoms wanted to avoid any recurrence of that situation on the 2M TV broadcast in order to preserve the reputation of the judiciary in national public opinion.
22. 414. The Government declares that the dialogue with all the trade unions in the justice sector will remain open, as long as they act in good faith and respect national and international rules governing dialogue and collective bargaining.

C. The Committee’s conclusions

1. 415. The Committee observes that the present case deals with allegations concerning the exclusion of the Democratic Union of the Judiciary (SDJ) from collective bargaining by the ministry concerned despite it being the most representative organization in the justice sector, acts of discrimination against its leaders, and the violent dispersal by the security forces of peaceful demonstrations organized by the trade union in question.
2. 416. The Committee notes the statement from the complainant organization, the Democratic Federation of Labour (FDT), that an affiliated organization, the SDJ, is the most representative trade union in the justice sector, in terms of both the number of members and the number of representatives elected to joint committees (65 per cent of representatives at the regional level and 99 per cent at the central and national levels). According to the complainant, the SDJ’s status as the most representative trade union and the absence of any legislation concerning collective bargaining in the public service make it the logical choice of organization to represent the judiciary in labour relations and any collective bargaining in the sector. However, the complainant objects that not only has the SDJ been excluded from a body responsible for determining working conditions for judiciary officials but in the wake of growing hostility towards the SDJ from the authorities, the Ministry of Justice and Freedoms announced its decision to cease all dialogue with the trade union via an official statement in December 2012.
3. 417. The Committee notes the Government’s reply, the first part of which refers to the ratification of all the ILO Conventions concerning the right to collective bargaining, the legislative framework and national practice relating to the determination of representative organizations and collective bargaining in the public service. The Committee notes the explanations of the respective roles in collective bargaining of the Higher Council of the Public Service, which has an advisory capacity regarding bills and regulations, the joint committees and the Public Sector Committee. The Committee notes that, in the context of collective bargaining, four collective agreements have been signed between the Government and employers’ and workers’ organizations since 1996. The Committee observes that although the Government recognizes a legal lacuna concerning the determination of the most representative trade union organization in the public sector, it claims that this is remedied by the Trade Unions Bill, section 37 of which provides that, in order to enjoy the status of the most representative trade union, the union concerned must poll at the national level in the public sector at least 6 per cent of the total number of staff representatives within the joint administrative committees.
4. 418. The Committee notes that, despite this framework, the roots of the dispute that gave rise to the present complaint lie in the work of the High Authority for the Reform of the Judicial System. The complainant objects that in 2011 the Government deliberately excluded the SDJ from the work of the High Authority for the Reform of the Judicial System, despite the fact that this body was supposed to be dealing with issues having a direct impact on the working conditions of court clerks and judiciary officials in general. The union’s requests to participate in the work of the High Authority were reportedly not accepted. The Committee notes the Government’s explanations that the High Authority comprised 40 individuals from various sectors whose appointment was unrelated to any considerations of category, profession or trade union. The mandate of the High Authority was to prepare a draft agreement for an extensive, comprehensive reform of the judicial system and had no decision-making or negotiating powers. Its role was limited to setting the main lines of the reform and gathering opinions and proposals for submission to regional debates. According to the Government, the real discussion on the main lines of the reform took place in 11 national debates held in the various regions of Morocco. The Office for the Administration of National Dialogue, an umbrella organization comprising more than 180 public and political establishments and those linked to political parties, as well as representatives of unions and associations, officially invited the SDJ to join. However, the Government states that the union flatly rejected the offer in several communications, on the pretext that it was not represented in the High Authority.
5. 419. The Committee observes that the dispute between the SDJ and the Ministry of Justice and Freedoms took on a further dimension with the signature of an agreement between the Ministry and other trade unions in the justice sector. The Government indicates that the Ministry in question has always sought ongoing dialogue with all trade unions. In this way the Ministry has tried to institutionalize central and regional dialogue with all the trade unions in the sector with a view to seeking solutions to their claims, some of which are identical while others are different, through two mechanisms: (a) central dialogue organized within the Central Committee comprising representatives of the Ministry and the national offices of the trade unions; and (b) regional dialogue organized regularly in the regional dialogue committees between the regional directors in the country’s appeal courts and the regional or local offices of the trade unions. The Minister of Justice and Freedoms held a meeting with the national trade union offices on 1 February 2012 after the new Government had been formed. A series of meetings on sectoral dialogue was launched, including three with the SDJ. The Committee notes the Government’s statement that, despite the regular dialogue and positive results, the SDJ adopted a negative position and chose to boycott the meetings in response to the conclusion of the agreement signed with the other two trade unions.
6. 420. The Committee observes that the complainant alleges to have been affected not just by the signature of an agreement with the trade unions but also politically, criticizing the Minister of Justice and Freedoms for constantly refusing to convene the periodic meetings provided for in a framework agreement adopted in 2006 for the organization of labour relations in the justice sector or to convene negotiations called for by the trade unions as provided for in a more recent agreement, notwithstanding written requests made by the SDJ.
7. 421. Noting the statements by the complainant and the Government on the issue of representativeness and collective bargaining in the justice sector, the Committee sees fit to recall, with regard to the issues of representativeness and the rights of minority trade unions, that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company or bargaining unit are both compatible with the principles of collective bargaining contained in the relevant ILO Conventions. The Committee observes that the current system in the justice sector is not one that confers exclusive rights on the most representative trade union.
8. 422. As regards the criteria to be applied to determine the representativeness of organizations entitled to negotiate, this representativeness should be based on objective and pre-established criteria. The Committee notes the Trade Unions Bill, section 37 of which provides that, in order to enjoy the status of the most representative trade union, the union must poll at the national level in the public sector at least 6 per cent of the total number of staff representatives within the joint administrative committees. It requests the Government to keep it informed with regard to the adoption of the bill in question and the application thereof in the justice sector.
9. 423. Moreover, the Committee recalls, with regard to the agreements concluded, that collective bargaining implies both a give-and-take process and a reasonable certainty that negotiated commitments will be honoured, at the very least for the duration of the agreement, such agreement being the result of compromises made by both parties on certain issues, and of certain bargaining demands dropped in order to secure other rights which were given more priority by trade unions and their members. If these rights, for which concessions on other points have been made, can be cancelled unilaterally, there could be neither reasonable expectation of industrial relations stability nor sufficient reliance on negotiated agreements. Agreements should be binding on the parties since mutual respect for the commitments undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 939, 940 and 941]. Taking account of the wide-ranging representativeness of the SDJ, which the Government does not dispute, the Committee requests the Government to take the necessary measures to pursue collective bargaining with the trade union concerned and to keep it informed of the measures taken in this regard.
10. 424. The Committee notes the Government’s statement that the SDJ attempted to disrupt the meetings during each regional debate and to rally its members to occupy the premises in which the debates were being held. The information provided as part of the complaint shows that the various demonstrations referred to by the complainant to protest at the violent action of the security forces were organized during the regional debates concerning the reform of the judicial system.
11. 425. The Committee notes the complainant’s claims that the Government violently suppressed peaceful demonstrations organized by the SDJ. By way of example, the security forces violently dispersed a peaceful sit-in in front of Al Akhaoayne school in Ifrane on 19 October 2012, injuring SDJ general secretary Mr Abdessadek Saidi, who had to be admitted to the clinic in Fes for a week (the complainant attached a medical certificate). The security forces also violently dispersed a group of trade union activists during a peaceful demonstration in front of the court of first instance in Tangier on 1 February 2013. The victims, who are named by the complainant, had to be taken to hospital by ambulance. Lastly, on 9 February 2013, a group of trade union leaders were forcibly detained by the management and security staff of the Mohammedia social welfare association’s summer resort.
12. 426. The Committee notes that the Government in its reply recalls that the SDJ deliberately chose to be confrontational by urging its members to obstruct the movements of the Minister of Justice and transporting hundreds of members to prevent the Minister from reaching the court of first instance in Ouyoune (southern Morocco), which was hosting a meeting of the High Authority for the Reform of the Judicial System. The union also disrupted the normal activities of the court, thereby infringing the rights of citizens, litigants and court clerks. The Government declares, with regard to the alleged assaults on SDJ members and leaders, including its general secretary, that it was in the context of clashes initiated by SDJ members, who tried to prevent debates being held and to occupy the meeting premises, that the security forces were obliged to intervene, on the orders of their superiors, to ensure the safety of people and property but without resorting to excessive use of violence, contrary to the claim made in the complaint.
13. 427. The Committee deeply regrets the allegations that public demonstrations for defending professional interests are violently dispersed or result in the use of violence on both sides. It further notes with deep concern the statement that the general secretary and other SDJ leaders were subjected to such violence that they required urgent treatment by the medical services. In view of the conflicting accounts received, the Committee considers it useful to recall, with regard to trade unions’ right to demonstrate, that workers should enjoy the right to peaceful demonstration to defend their occupational interests. Although the right of holding trade union meetings is an essential aspect of freedom of association, the organizations concerned must, like other persons or organized collectivities, observe the general provisions relating to public meetings and respect the law of the land. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., paras 133, 140 and 143]. The Committee trusts that the Government and the complainant organization will ensure that these principles are observed in the future.
14. 428. The Committee notes that, according to the Government, if assaults were in fact perpetrated, the victims are entitled to take legal action. The Committee requests the Government or the complainant organization to keep it informed of any cases brought before the judicial authorities in the wake of the alleged violence, and of the outcome thereof.
15. 429. The Committee notes the allegations of reprisals against SDJ leaders and members for organizing or taking part in strikes. The Committee notes in particular the statement that the SDJ deputy general secretary was suspended without cause from his position as head of the registry at the court of first instance of Ksar el-Kebir (a city in northern Morocco) barely a week after a demonstration was organized during a visit from the Minister of Justice. The Committee notes that, according to the Government, the suspension was undertaken in the general interest and had nothing to do with the official’s trade union affiliation; the individual concerned has lodged an appeal against the administrative decision, the outcome of which is still pending. The Committee requests the Government to provide further information on the specific reasons for the suspension of the SDJ deputy general secretary, to keep it informed of the outcome of the judicial proceedings instituted by the latter and to send a copy of the final ruling.
16. 430. As regards the withholding of pay from striking SDJ activists, the complainant points out that this is without any legal basis since, although the Labour Code provides for the suspension of an employment contract during a strike, there is no similar instrument governing the public service. The FDT also objects that the Government is taking advantage of the legal lacuna to obstruct the exercise of the right to strike by withholding pay only from the members of certain unions. The Committee notes that the Government maintains in its reply that such a principle is accepted in most countries and has been recognized in numerous rulings in the Moroccan courts, including the Agadir administrative court decision No. 183/2005, published on 20 April 2001, and the Rabat administrative court decision No. 208/07/05 of 17 October 2007. The Committee recalls that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest, op. cit., para. 654]. However, if the salary deductions are applied to the activists of only one trade union, as alleged in the present case, and all the unions have taken part in the strike, this situation would constitute de facto discriminatory treatment against the union concerned, affecting the principles of freedom of association. The Committee requests the Government to send its observations in reply to the complainant’s allegations and, if such actions are proven, to put a stop to them immediately.
17. 431. The Committee notes the complainant’s allegation that in January 2013 the Minister of Justice declined to engage in debate with the SDJ general secretary in a television broadcast. At the last minute the management of the television channel reportedly informed the union leader that the Minister of Justice had refused to meet with him in the same TV studio. The complainant argues that this was a denial of a trade union leader’s right of expression and of his right to use the public media. The Committee notes that the Government indicates in its reply that the Minister of Justice and Freedoms had previously agreed to meet with the SDJ general secretary in the context of a broadcast by the Aswat radio station on 31 October 2012 but on that occasion the union leader had made inappropriate remarks. The Minister of Justice and Freedoms wanted to avoid any recurrence of that situation on the 2M TV broadcast in order to preserve the reputation of the judiciary in national public opinion. As regards freedom of expression and access to the media, the Committee merely wishes to recall that the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest, op. cit., para. 155].
18. 432. Lastly, the Committee notes the communiqué of 27 December 2012 from the Ministry of Justice and Freedoms officially declaring a boycott of SDJ activities and refusing any dialogue. According to the complainant, this communiqué effectively prevents the union from developing its activities, in violation of the Constitution of Morocco and universal principles of freedom of association. The Government, for its part, declares that the dialogue will remain open with all the unions in the justice sector as long as they act in good faith and respect national and international rules governing dialogue and collective bargaining. Such a public communiqué from a government ministry calling for a boycott of a representative trade union constitutes, for the Committee, a serious violation of the principles of freedom of association. The Committee considers, in view of the number of workers represented by the SDJ in the justice sector and with a view to easing tension, that the Government should endeavour to take action to ensure that dialogue is renewed between the Ministry of Justice and Freedoms and the trade union, so that the views of all the unions are taken into account as part of the current reform. The Committee requests the Government to indicate any measures taken in this regard.

The Committee’s recommendations

1. 433. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting with deep concern the statement that the leaders of the Democratic Union of the Judiciary (SDJ) were subjected to such violence that they required urgent treatment by the medical services, the Committee requests the Government or the complainant organization to keep it informed of any cases brought before the judicial authorities following the alleged violence, and of the outcome thereof.
   • (b) The Committee requests the Government to provide further information on the specific reasons for the suspension of the SDJ deputy general secretary, to keep it informed of the outcome of the judicial proceedings instituted by the latter and to send a copy of the final ruling.
   • (c) The Committee requests the Government to send its observations in reply to the complainant’s allegations that salary deductions for strike action are applied to the activists of only one trade union and, if such actions are proven, to put a stop to this discriminatory treatment immediately.
   • (d) The Committee notes the Trade Unions Bill, section 37 of which provides that, in order to enjoy the status of the most representative trade union, the union must poll at the national level in the public sector at least 6 per cent of the total number of staff representatives within the joint administrative committees. It requests the Government to keep it informed with regard to the adoption of the bill in question and the application thereof in the justice sector.
   • (e) The Committee requests the Government to take the necessary measures to pursue collective bargaining with the SDJ and to keep it informed of the measures taken in this regard.
   • (f) The Committee considers, in view of the number of workers represented by the SDJ in the justice sector and with a view to easing tension, that the Government should endeavour to take action to ensure that dialogue is renewed between the Ministry of Justice and Freedoms and the trade union, in order to continue collective bargaining and so that the views of all the unions are taken into account as part of the current reform. The Committee requests the Government to indicate any measures taken in this regard.