The debates on the bill governing the right to strike (number 15/97), developed towards the end of the Benkirane government’s term, resurface today on the occasion of the seventh attempt to regulate strikes since the adoption of the Constitution in 1962 when, for the first time in the country’s history, the Moroccan legislature recognized the right to strike, established in Chapter 14 of the Constitution. Before that, Morocco, as a member of the United Nations, had implicitly recognized the right to strike as an element of the International Covenant on Economic, Social, and Cultural Rights of 1966. This international recognition relieves us of the need to refer to other international texts and norms to prove the right to strike since it is integrated into the universal reference to human rights, to which Morocco adheres.
Therefore, the right to strike is a fundamental right that requires a legislative framework for its exercise, in accordance with the formal and substantive conditions and mechanisms in place. One of these essential mechanisms is dialogue during the legislative process from its beginning to its end to ensure a consensual text. However, the government has taken a different approach in drafting the current bill on strike regulation. Unfortunately, this inevitably leads to conflicts and protests, both in terms of form and content.
The current text has several fundamental shortcomings; the preamble is non-existent, while nearly half of its articles (23 out of 49) are dedicated to detailing the conditions and procedures for exercising the right to strike in the private sector. This includes notice and notification periods that can extend up to sixty days, ranging from the start of negotiations (30 days) to the convening of a general assembly (15 days), to the notification of the strike date (15 days). Furthermore, some conditions seem almost impossible to fulfill, such as the requirement of a quorum of 4/3 of workers for the holding of the general assembly, as well as the collection of their names, national identification numbers, and signatures. These requirements appear more restrictive than regulatory and hinder the possibility of a real and effective strike.
The strike is a right that cannot be restricted or hindered to the point of becoming impossible to exercise. This right aims to restore the imbalance in labor relations, whether in the private sector, where it concerns the professional relationship between the employer and employees, or in the public sector, where it concerns the relationship between the state and civil servants. To correct this imbalance, employees, workers, and unions must have the opportunity to exercise their right to strike to restore fair working conditions. Therefore, the strike is not a whim but a means to defend a right and a tool to correct existing violations.
In Morocco, the right to strike has evolved through two periods: that before the 1962 Constitution and that after the 1962 Constitution.
In the first phase, which occurred after Morocco’s independence, the Moroccan administration referred to Article 5 of the decree of February 2, 1958, which stated that “any organized work stoppage and any collective act leading to manifest disobedience were subject to sanctions in addition to disciplinary measures.” Consequently, the right to strike was considered illegitimate. In the same context, the decision of the Supreme Council at the time regarding the case of the late Mohamed El Hahi against the Minister of National Education, Youth, and Sports, dated April 17, 1961, became part of jurisprudence; the complainant had been suspended from his job without pay by the minister for participating in a collective strike on March 25, 1960.
As for the post-1962 Constitution period, which stipulates in Article 14 that the right to strike is guaranteed and that the legislator will specify the conditions and procedures to be followed, Article 5 of the February 2, 1958 decree remained in force. In 1979, the Prime Minister suspended the right to strike for public sector employees through circular No. 319/3, relying on the aforementioned decree’s Article 5, thus ignoring Article 14 of the Constitution. In 1981, the first attempt at regulation took place with the government of the late Maati Bouabid, in response to the famous strikes of 1981. The Prime Minister at the time was not seeking to respect constitutional obligations but rather to appease a highly tense social and political situation. Of course, the unions of that time rejected the project in its entirety, paying it little attention.
The second attempt took place in 1995 with the government of Abdellatif Filali, who was in the midst of a consensual political initiative. The project was presented in a unilateral press conference, without providing copies to trade unions and without submitting it to Parliament. Thus, the project remained in the government’s hands.
The third attempt occurred in 2001 when the Ministry of Employment prepared a project guaranteeing the right to strike in the private and public sectors. This project was presented and discussed during social dialogue, but at that time, the dialogue primarily focused on drafting the Labor Code. Therefore, the unions agreed to postpone the discussion of this project until after the adoption of the Labor Code.
In 2004, the fourth attempt was limited to the private sector only, which the unions considered incomplete since it did not include the public sector. Consequently, it was not discussed because a strike law must be comprehensive and should not exclude any sector. The fifth attempt occurred in 2005 when the government presented a new bill, different from the 2004 one, in response to union proposals. However, this new project was not accepted because the unions prioritized the implementation of the provisions of the Labor Code and their enforcement. Employers were reluctant to apply the Labor Code, so the unions deemed it necessary to postpone the discussion of this new project until after the adoption of the Labor Code.
In 2010, the sixth attempt was made, with the formulation of a new bill that was submitted to the International Labour Organization (ILO) for expert evaluation. The ILO made minor observations on the project, which were supposed to be taken into account to make it compliant with the organization’s standards. However, this project was not concretized because in 2011, the Arab Spring erupted, bringing a new government, a new constitution, and a government declaration stating that the law governing strikes would be enacted during the first government term, in line with constitutional requirements that obliged the executive branch to adopt regulatory laws in the term following the constitution’s approval. However, the government could only finalize and promulgate this law at the end of its term for a simple reason: the head of the government believed he had a sufficient parliamentary majority to pass any law, and thus saw no need to involve stakeholders and unions in the development of a new strike bill. Therefore, this project was the seventh attempt, and it was submitted to Parliament on October 16, 2016, as a social legislative proposal. On February 3, 2017, it was referred to the Parliament’s Social Affairs Committee. The government then announced that it had fulfilled its constitutional commitment by completing the project and submitting it to Parliament. However, at that time, the end of the government’s term was approaching, and everyone was busy preparing for the legislative elections, so the project remained ignored by the relevant committee.
What the government claims to be a constitutional commitment is actually an attempt to conceal the fact that the debate on such a project is not solely the responsibility of lawmakers in Parliament but of society as a whole. This issue must indeed be the subject of an open public debate. Furthermore, it would have been appropriate for the strike bill to be a direct result of Social Dialogue. Therefore, the current project, as it was formulated and developed, contradicts the 2011 project, which included preambles that are no longer present in the current project. The ILO had also expressed its opinion on the previous project, unlike the current project, which only takes into account the government’s opinion. Therefore, many aspects of the current version of the project, which the government planned to pass in Parliament without prior consultation, require direct discussion, negotiation, revision, and examination with stakeholders, especially the labor unions.
This is the chronology of the seven unsuccessful projects because except for the 2003 and 2010 projects, which offered real opportunities for a balanced and consensus-based project, the other attempts were dominated by unilateral government decisions. This goes against international practices in the construction and formulation of social laws, which require the inclusion, discussion, and integration of all perspectives and opinions of stakeholders. Furthermore, such laws require an essential element, namely trust between the parties involved, which cannot be achieved without the exercise of participatory democracy, far from the trend to bypass its philosophy and political depth. The current project was presented unilaterally, which had an impact on the content of its six chapters and its forty-nine articles, all of which limited access to the right to strike rather than facilitating it, making it restrictive and subject to restrictive procedures. In reality, 75% of declared strikes are due to non-compliance with the Labor Code, which should have prompted the government to address these imbalances related to labor law violations instead of restricting workers’ right to strike to claim their rights.
If this project is adopted in its current version, it will be a source of social tensions, and it is difficult to predict the consequences that may arise from it. Social fragility is increasing, violations of labor legislation are multiplying, trade union freedoms are being restricted, and attacks on social rights are intensifying in all sectors, day by day. The physical rule that “pressure leads to an explosion” could prove true with the deprivation of workers of their main tool of resistance, namely the right to strike.
Therefore, it would be wise and prudent for the government to heed the voice of reason by returning this project to the table of Social Dialogue and negotiating with social actors, thus preserving social peace and the credibility of trade unions as indispensable institutions for societal mediation. Unions are more than ever called upon to unify their struggles, even temporarily, to halt the attack on labor rights and freedoms, as well as the labor movement in general, with the aim of unifying their organizational structure, the true guarantor of building a new balance of power allowing the working class to defend and develop its rights and achievements in a national, regional, and international context marked by clear hostility towards anything social.
The current battle over the bill regulating strikes requires the same commitment to a united struggle on the ground, open to allied social forces of the working class, in order to create a powerful mobilization among workers, with a clear analysis of its objectives, coherent communication, and concerted action on all conditions and consequences that reflect the suffering of workers. Because this project is fraught with risks, which can be summarized as follows:
- Despite the legislator’s efforts to provide definitions to avoid multiple interpretations, some of them could be subject to varied interpretations, especially concerning the notion of a strike.
- The project limits the use of strikes to purely professional demands, thus excluding other objectives, such as solidarity strikes, which could allow authorities to question their legitimacy.
- Lack of clear criteria for minimum services in the public sector and factories, which could be interpreted as an attempt to disrupt the normal exercise of the right to strike.
- The project obliges exhausting all forms of dialogue and negotiation before calling for a strike.
- Remuneration is used as a punitive means to limit the exercise of the right to strike, especially in case of failed dialogue with unions.
- Imposition of restrictive freedom penalties and fines on anyone involved in a strike without considering certain provisions of the bill.
- Complexity of legal procedures and notification requirements for calling a strike, especially regarding the number of entities affected by the notification.
- The project states that sudden, surprise, and emergency strikes are illegal, requiring prior compliance with conditions and procedures before, during, and after declaring a strike.
- Restriction of the exercise of the right to strike by limiting the entities authorized to call a strike (the most representative union, the union bureau, and the strike committee), making any strikes led by workers outside of these frameworks illegal.
- Lack of effective protection measures for employees and their union representatives before, during, and after a strike.
- Lack of clear criteria to define the minimum level of essential services, which could be used to hinder the normal exercise of the right to strike.
- Exclusion of certain categories of workers from the exercise of the right to strike, including employees responsible for maintaining public services, security, and the protection of public property, as well as workers directly providing services to citizens.
- The text grants employers the right to resort to the courts to maintain production during a strike, without providing a similar recourse for strikers to protect their demands.
- Imbalance in sanctions between employers and strikers in case of violations of the provisions of this bill.
In conclusion, wasn’t it the government’s responsibility, while preparing this bill, to create the conducive conditions for its success?
1. The first condition is the inclusion of all relevant parties within the natural framework of Social Dialogue.
2. The second condition is the repeal of Article 288 of the Penal Code and the ratification of International Convention No. 87.
3. The third condition is the repeal of the provisions of the September 13, 1938 decree regarding requisition, especially since Article 10 of the Labor Code explicitly prohibits the forced requisition of workers.
4. The fourth condition is the repeal of Article 5 of the February 2, 1958 decree.
5. The commitment to fully respect the outcomes of the Social Dialogue in April 2022, including the expedited issuance of the decree for the second minimum wage increase.
For this project to succeed, it is essential to withdraw it from Parliament and place it on the table of Social Dialogue negotiations. Creating favorable conditions for trust between the parties is crucial, and drafting a project that protects the exercise of the right to strike in accordance with international treaties and conventions, as well as the fundamental principles established by the ILO supervisory bodies. This project should also strengthen trade union rights and protect labor relations.
English 
العربية