Rapport définitif - Rapport No. 236, Novembre 1984

Cas no 1196 (Maroc) - Date de la plainte: 17-JANV.-83 - Clos

185. The complaint from the Democratic Confederation of Labour dates from 17 January 1983. The Committee has had to defer the examination of this case on several occasions whilst awaiting observations from the Government. At its meeting in May 1984, the Committee requested the Government to transmit its observations on this case as a matter of urgency and pointed out that it would present a report on the substance of this case even if it had not received a reply before the present meeting. After this, the Government sent its reply in a communication of 22 June 1984.

1. 185. The complaint from the Democratic Confederation of Labour dates from 17 January 1983. The Committee has had to defer the examination of this case on several occasions whilst awaiting observations from the Government. At its meeting in May 1984, the Committee requested the Government to transmit its observations on this case as a matter of urgency and pointed out that it would present a report on the substance of this case even if it had not received a reply before the present meeting. After this, the Government sent its reply in a communication of 22 June 1984.
2. 186. Morocco has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 187. In its communication of 17 January 1983, the Democratic Confederation of Labour (CDT) alleges many infringements of the rights of active members of the National Union of Water and Electricity Workers (CDT-SNEE), an organisation affiliated to the Confederation, perpetrated by the management of the National Electricity Board (ONE) and by the public authorities; these infringements allegedly occurred during elections held on 25 and 26 May 1982 to appoint staff delegates of the National Electricity Board (ONE) to the Moroccan Electrical Workers' Committee, to the Staff Committee, to the Social Welfare Committee and to the Committee of the Mutual Aid Fund at the Social Security office.
2. 188. As an outcome of these violations the trade union (SNEE) was eliminated, leaving the field open for the rival trade union, the National Federation of Lighting and Power (FNEFM-UMT); the latter, as a result of this occurrence, naturally won all the seats. The elimination of this trade union, continues the complainant, deprived its active members of the seats they were counting on in the above-mentioned occupational bodies; and furthermore, it had repercussions on the general elections scheduled for the summer of 1983 since some of the deputies elected for six years are appointed, through the two-tier voting system, on the basis of elections within the various occupational bodies.
3. 189. The complainant explains that the management of the ONE announced on 23 February 1982 that elections to the occupational bodies by the proportional representation were set for 25 to 28 May of the same year and that the list of candidates was to be deposited with the management no later than 27 April 1982 at 6 p.m., together with individual letters of candidature. The SNEE lists, together with these letters, were duly deposited on 27 April at 10 a.m.; this fact is corroborated by the management's acknowledgements of receipt, annexed to the complaint. However, from the next day onwards, delegates from the rival trade union federation allegedly went to various towns throughout Morocco, where the elections were to be held, with a view to forcing the SNEE candidates to withdraw their candidature. The militants allegedly resisted but their opponents exerted both moral and physical pressure on them (by threatening candidates and their families, abducting their victims and bringing them before the Secretary-General of the opposing trade union (FNEFM-UMT), Mr. Mohamed Abderrazak, who supervised the drawing up and signing a letter in which the candidates agreed to stand down from the elections). Both Mr. Najmi and Mr. Bahroud were forced to stand down due to this extortion. Once these letters had been wrested from the militants, the opponents sent them to the management; the latter took advantage of this situation by overlooking the CDT lists, considering them null and void, on the basis that the regulations for the elections (drawn up by the management) stipulate that "any resignation submitted before the registration date shall result in the nullification of the corresponding list"; this registration was to take place seven days before the final date for the deposit of the lists of candidates.
4. 190. According to the complainant, the management's argument is specious because the active members of the CDT, forced to sign letters in which they agreed to stand down from the elections, immediately wrote to the management to inform them of the pressures to which they had been subjected and confirmed that they still wished to stand for election. The letters of protest sent by Mr. Najmi and Mr. Bahroud to the management, confirming their wish to continue standing as candidates, signed on 28 and 29 April 1982 respectively, are enclosed with the present complaint. Furthermore, the SNEE trade union itself exposed its rival's intrigues by sending telegrams both to the management and the competent ministry, in this case the Ministry of Energy and Mines (photocopy of the latter is enclosed with the complaint). The management, however, decided once and for all that the lists were null and void and that they were not to be published.
5. 191. The trade union then requested the management to send it confirmation in writing of its refusal to accept the candidatures and to specify the grounds for this decision; however, the management; refused this, merely stating verbally that the CDT was illegal as it was banned by the State, since its leaders were in prison. However, the complainant Confederation explains that the CDT is not banned de facto, even although, at the time, some of its leaders were in custody following the events of Casablanca on 20 June 1981 awaiting trial. (Moreover, since then, the CDT leaders have been released. [See 233rd report, Case No. 1054, Morocco, paras. 318 to 381]). The SNEE-CDT officially took note of the management's rejection of its candidates on 17 May 1982 by sending it a letter, of which a copy was sent to all the authorities concerned. the Wali of Casablanca, the Ministries of Energy and Mines, Labour, Justice, Foreign Affairs, the Prime Minister and Head of the Royal Cabinet. Unfortunately, none of these authorities intervened to restore the legality of the elections and this omission allowed the ONE management to feel it could go ahead and do away with the trade union in question. As the public authorities left it up to the management to do what it liked, the trade union SNEE did not take part in the elections and the rival trade union, known for its collaboration with the management, obtained all the seats.
6. 192. The complainant also explains that the trade union cannot have the elections declared void, for both factual and legal reasons. section 20 of the Regulations drawn up by the management of the National Electricity Board in May 1982, concerning elections to the Social Welfare Committee and the Committee of the Mutual Aid Fund at the Social Security Office, stipulates that "In a case when a dispute between the general management of the ONE and the legally constituted trade unions cannot be settled out of court, it shall be submitted for arbitration to the Staff Committee within five days after the declaration of results". While the five-day time-limit laid down in the Regulations might be straightforward, explains the complainant, the arbitration provided for in section 20 cannot possibly be of a binding nature because the Committee entrusted with this task is made up entirely of the management, i.e. it is presided over by the General Manager or his delegate and representatives from the rival trade union federation whose candidatures had been accepted. It is therefore obvious that there can be no objective arbitration on the dispute, since those arbitrating are both "judge and judged".
7. 193. Furthermore, the complainant adds that it is impossible to" have the elections declared void at law for the following reasons. in an Order of 27 July 1979, the Supreme Court stipulated that the period of five days in which to "lodge an appeal against the legality and sincerity of the elections" (provided for in section 24 of the Order of the Minister assigned to the Ministry of Labour and Social Affairs of 26 December 1962 concerning the election of staff delegates) commences as soon as the results have been declared by the "polling station", which, according to the Supreme Court, takes place immediately after the counting of the votes. However, this shows that the Supreme Court is unaware of the true nature of the elections which take place within the ONE. ONE elections are not, in fact, subject to the Order of 26 December 1962 but to the above-mentioned Regulations established by the management, the provisions of which are not in accordance with the said Order. According to these Regulations, the polling stations (at various places throughout the country) do not announce the results of the voting (which, moreover, is logical as the voting is on a national level) in so far as those elected to the various occupational bodies represent all the staff at the ONE and not just the employees of a particular unit. The results are therefore declared at the ONE headquarters, a long time after the voting, at a date decided upon by the management. Indeed, section 13 of the Regulations stipulates that. "after voting has closed, ballot boxes, copies of voting lists which have been marked off and reports shall be centralised at the ONE headquarters in Casablanca under the authority of the Chairman of the Ballot Committee, who shall nevertheless be responsible until all votes have been counted", and section 18 of the Regulations stipulates that: "the results shall be announced by the Chairman and approved by a decision of the ONE General Manager". The Chairman of the Ballot Committee does not, therefore, declare the results: this declaration is always made by, the ONE General Manager alone, in the form of a "Decision" which is made public by being pinned up. The announcement of results and the administrative formalisation of this declaration thus take place at one and the same time by one and the same person. Consequently, when the Supreme Court in its above-mentioned Order stipulated the period of five days provided for in section 24 of the Order of 26 December 1962 "commences on the day on which results are declared by the polling station" (according to the terms of the Order) it referred to a procedure which never happens. the Supreme Court wrongly believes that the polling station declares the results immediately after the end of voting. In view of this, the complainant considers it obvious that any appeal to the courts to have the elections declared void is bound to be declared inadmissible because, in practice, this can only be lodged after the publication of the managerial "Decision", whereas the Supreme Court considers that the date of this decision cannot be taken as the start of the statutory time period.
8. 194. In concluding, according to the complainant, the CDT has no chance of obtaining the seats it deserves in the occupational bodies of the ONE and, at a higher level, within the Parliament in the present circumstances because of the management's attitude (which openly violates the electoral rules), the criminal actions of the' rival trade union federation (which puts pressure on these candidates to withdraw their candidature, thus, in the management's eyes, rendering the lists null and void), the indifference of the public authorities (who do not intervene) and finally the Supreme Court (whose interpretation of the law is obviously incompatible with the real situation).

B. The Government's reply

1. 195. In its reply of 22 June 1984, the Government confirms that the National Electricity Board declared null and void the electoral lists of the staff delegates, about which the National Union of Water and Electricity Workers submitted a complaint.
2. 196. According to the Government, the grounds for this decision were as follows. First, the lists were incomplete as some candidates stood down from election during the five days following the submission of their candidature; these lists could not therefore be taken into account as they failed to comply with the regulations. Secondly, some signatures on the lists of candidatures were allegedly dissimilar from those in the candidates' individual files.
3. 197. With respect to the allegations concerning the injustices to which the workers of the complainant organisation were subjected, both within and outside the National Electricity Board, the Government states that the inquiry carried out on this matter revealed that these allegations were completely unfounded.

C. The Committee's conclusions

1. 198. The present case mainly concerns the complainant Confederation's objection to the results of the trade union elections of staff delegates to the National Electricity Board (ONE) in May 1982, which allegedly infringed the rights of the trade unionists belonging to the National Union of Water and Electricity Workers (SNEE), an organisation affiliated to the complainant.
2. 199. With respect to the first complaint concerning the violation of electoral rules by the general management of the ONE, the Committee notes that the Government makes no comment on this matter. The Committee nevertheless notes that the ONE general management adopted two sets of internal regulations for the elections in May 1982. one for the election of members to the Social Welfare Committee and the Committee of the Mutual Aid Fund at the Social Security office and the other for the elections of staff representatives to the Moroccan Electricity Committee and the Staff Committee. Under these two Regulations (sections 3 and 20), the lists of candidates are deposited and registered at the ONE general headquarters in Casablanca, against a receipt from the General Manager of the Board or his representative. Any resignation before the registration date nullifies the corresponding list. Furthermore, disputes between the ONE general management and the trade union organisations are submitted for arbitration to the Staff Committee within the five days following the announcement of results.
3. 200. The Committee notes that these provisions give the employer discretionary power to register the lists of candidates and grant the right to settle disputes to the Staff Committee which is made up of representatives of the ONE management and persons elected from lists to which the general management has inevitably agreed. This Committee is of the opinion that the bodies thus entitled to intervene in the electoral procedure are not as independent as might be wished. Consequently, the Committee trusts that these provisions will be changed and it would emphasise to the Government that the supervision of elections should be entrusted to the judicial authorities.
4. 201. With respect to the second allegation that those trade unionists inscribed in the rival lists had put pressure on the trade unionists on the complainant Confederation's list to withdraw their candidatures, the Committee notes that the complainant submitted two letters signed by those concerned and sent to the ONE management, in which they claimed that they had been forced, by violent means, to withdraw their candidatures; indeed, they had done this at first, but later declared that they wished to stand for election as before. The Government merely refutes these allegations, stating that the inquiry carried out on this matter revealed that they were completely unfounded. The Committee can only note the contradictory nature of these two versions and, in view of the fact that the complainant failed to mention that the two trade unionists concerned lodged a complaint before the courts on the grounds of legal confinement and extortion, the Committee considers that this allegation does not call for further examination.
5. 202. With respect to the third allegation that the public authorities remained indifferent to the repeated demands of the complainant (telegram sent to the Minister of Energy and Mines to inform him of the pressures to which the candidates had been subjected, letters to the Wali of Casablanca and to several ministers, informing them that the ONE management had rejected candidatures), the Committee notes that the Government affirms that there were no pressures brought to bear and claims that the candidatures were rejected because the candidates' signatures were not in order. In this regard the Committee also stresses that the supervision of elections, including the supervision of the deposit of the lists of candidates, should always be entrusted to the judicial authorities.
6. 203. Finally, the Committee notes that the Government has supplied no observations on the allegation concerning the interpretation by the Supreme Court of section 24 of the Order of the Minister of Labour and Social Affairs of 26 December 1962 concerning the lodging of an appeal on the legality of staff delegates' elections. The Committee notes that section 24 only stipulates that "within the five days following the election, any voter shall be entitled to lodge an appeal on the legality and sincerity of the electoral procedures". The Committee also notes that, according to the Supreme Court, the time period of five days in which an appeal may be made commences after the declaration of the results "by the polling station", immediately after the counting of the votes. However, it seems that the results of the elections are announced at the ONE headquarters, long after the voting has taken place, by the Chairman of the Ballot Committee and are then endorsed by a decision of the ONE General Manager. The interpretation given by the Supreme Court therefore makes it impossible in practice for workers and their organisations to appeal against the way in which elections are carried out and their results. The Committee is of the opinion that this lack of possibility to lodge an appeal constitutes an infringement of the workers' right to elect freely their representatives.

The Committee's recommendations

1. 204. In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular the following conclusions:
   • (a) With respect to the provisions contained in the regulations of the National Electricity Board which grant the employer the discretionary power to register the lists of candidates and confers the power to settle disputes upon the Staff Committee which is made up of representatives of the management and persons elected with the approval of the management, the Committee considers that the bodies thus entitled to intervene in the electoral process are not as independent as might be wished. The Committee therefore trusts that these provisions will be changed.
   • (b) The committee would emphasise to the Government that the supervision of elections, including the supervision of the deposit of the lists of candidates, should always be entrusted to the judicial authorities.
   • (c) With respect to the restrictive interpretation given by the Supreme Court on the provision contained in the Order of 26 December 1962 concerning the lodging of appeals on the legality of elections of staff delegates, the Committee considers that an interpretation of this nature, in the present case, makes it impossible in practice for workers and their organisations to lodge any appeal and therefore places a restriction on the right of workers to elect freely their representatives.