Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

Article 2, paragraph 2(c), of the Convention

Prison work

1. For many years, the Committee has been asking the Government to repeal or amend the Dahir of 26 June 1930 which allows prisoners to be handed over to and employed by private enterprises. Although this Dahir was repealed by Act No. 23-98 concerning the organization and operation of penal establishments, promulgated by Dahir No. 1-99-200 of 25 August 1999, the Committee notes that section 40 of the Act provides for the possibility of a prisoner to work for a private individual or organization under an administrative agreement fixing the conditions of employment and remuneration. The Committee recalls that employment of prisoners by private individuals would not be compatible with the Convention, unless the conditions under which the work is carried out were similar to those that apply in a free labour relationship. The Committee refers on this point to paragraphs 97 to 101 of its 1979 General Survey on the abolition of forced labour, paragraphs 82 to 146 of its 2001 General Report, especially paragraph 143, which defines what is to be understood as a free labour relationship, as well as to its 2002 general observation, in particular paragraphs 10 and 11. The Committee requests the Government to supply information on the procedures for concluding the administrative agreement in question, measures taken to ensure that prisoners consent freely (that is, have a genuine choice as to whether or not to work, without pressure or threats of any form of penalty), wages paid and other conditions of work, in particular, the application of labour law, social security coverage and safety and health.

2. The Committee notes the information supplied by the Government in reply to its 1999 general observation on prisoners working for private enterprises. In this regard, the Committee notes that there are no private prisons, or prisons managed by private companies, in Morocco, and notes also that there is no legislation authorizing individuals to enter prisons for the purpose of hiring prisoners. Furthermore, prisoners do not work outside prison premises, with the exception of those employed to do agricultural work for the prison, in which case the consent of the prisoners is required and they must be paid. Such work is done as part of the training and re-education of the prisoners and in order to facilitate their reintegration. The Committee requests the Government to indicate whether there are private enterprises using prisoners in prison establishments, either for themselves or on behalf of other enterprises, and whether the prisoners who are allowed to work outside prisons to do agricultural work can be employed by private enterprises or individuals and, if so, to supply information on the safeguards that apply in respect of prisoners’ freely given consent. The Committee notes that the joint Order of the Ministers of Justice and Economics and Finance, No. 239-00 of 3 February 2000 enacted under the terms of section 45 of Act No. 23-98 referred to above, sets the rate of remuneration of each prisoner carrying out work in prison at six dirhams a day. The Committee requests the Government to supply information on the rate of remuneration of prisoners employed outside prison premises.

3. The Committee notes that section 26 of Decree No. 2-00-485 of 3 November 2000 establishing procedures for implementing Act No. 23-98 provides for the possibility of convicts to be employed outside the prison on work of benefit to the community. The Committee requests the Government to indicate whether such work can be carried out for the benefit of private parties, be they individuals or companies, and to communicate information on the practical arrangements for carrying out this work.

Article 2, paragraph 2(d)

Call-up of persons

4. For many years, the Committee has been drawing the Government’s attention to a number of legislative texts which authorized the calling up of persons and the requisitioning of goods in order to satisfy national needs (the Dahirs of 10 August 1915 and 25 March 1918, as contained in the Dahir of 13 September 1938 and reintroduced by Decree No. 2-63-436 of 6 November 1963). The Committee had requested the Government to take steps to ensure that calling up could only take place in situations endangering the existence or well-being of the whole or part of the population. The Committee noted that according to the Government, the only cases in which the provisions allowing the requisitioning of goods and the calling up of persons may be invoked are emergencies within the meaning of the Convention and that recourse to such measures must be based on the necessity of satisfying urgent needs, under circumstances of extreme difficulty, in order to protect the nation’s vital interests (for example, war, natural disasters or major accidents). The Committee had expressed the hope that the Government would take the necessary measures in the very near future to give legislative expression to this practice, by repealing or amending the aforementioned provisions. Since the Government has not communicated any information on this point in its most recent reports, the Committee again expresses the hope that the Government will soon repeal or amend the legislation in question and supply information on the measures taken or envisaged to ensure that the conditions under which persons can be called up are strictly limited to situations endangering the existence or well-being of the whole or part of the population.

Article 25

5. The Committee previously also drew attention to the absence in national legislation of any penal sanctions against persons guilty of the illegal exaction of forced labour, and recalled that Article 25 of the Convention stipulates that the illegal exaction of forced or compulsory labour must be subject to really adequate and strictly enforced penal sanctions. The Committee takes note of the information in the Government’s report to the effect that under the terms of section 10 of the draft Labour Code, the exaction of forced labour is prohibited and liable to criminal sanctions. The Committee notes that the draft Labour Code is currently being discussed by Parliament. The Committee reiterates its hope that this legislation will be adopted soon, and requests the Government to supply a copy once it has been adopted.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2, of the Convention

Freedom of public servants and career members of the armed forces to terminate their employment

6. In its previous comments, the Committee had noted that, under the terms of section 77 of the Dahir of 24 February 1958 establishing the General Conditions of Employment of the Public Service, the resignation of an official does not come into effect unless it is accepted by the authority within whose competence the power of appointment lies, and in the event of refusal by the competent authority the person concerned may bring the case before the Joint Administrative Committee, which issues a reasoned opinion for transmission to the competent authority. The Committee noted the information provided by the Government to the effect that the criteria applied in accepting or rejecting a resignation request are the needs of the service and whether or not it is possible to find a similarly qualified replacement for the official who is resigning. Furthermore, since this is an administrative decision, a refusal of the resignation request, like any other administrative decision, can be challenged before the competent jurisdiction on grounds of exceeding authority. The Committee had referred to paragraphs 67-73 of its 1979 General Survey on the abolition of forced labour, where it had expressed the view that legislation under which workers may in emergency situations be prevented from leaving employment does not affect the observance of the Convention in so far as the power is limited to what is necessary to cope with cases of emergency within the meaning of Article 2, paragraph 2(d), of the Convention. The Committee took the view that the worker’s right to free choice of employment remains inalienable, and that legislation preventing an employee from terminating his employment by a reasonable period of notice has the effect of transforming a contractual relationship based on the will of the parties into service by compulsion of law and is thus incompatible with the Convention. Since no information has been communicated by the Government on this point in its most recent reports, the Committee once again requests the Government to amend the legislation with a view to restricting the possibility of preventing an official from leaving his or her employment to emergency situations, and to ensure the freedom of officials to terminate their employment by reasonable notice. The Committee again asks the Government to indicate in its next report the measures taken or planned to this end, and to provide a copy of the provisions governing the resignation of career officials.

Reply of the Government to the general observation of 2001

7. The Committee notes the information supplied by the Government in reply to its general observation of 2001, in particular regarding the provisions of national legislation to punish the exploitation of the prostitution of others. The Committee would like to have had more detailed information on points 1(b), 2 and 3, in particular with regard to measures taken to combat trafficking in persons.

In addition, the Committee raises another matter in a request addressed directly to the Government.