Questions / Answers on the Labour Code

When the parties succeed in their collective bargaining, they can register their product in a “collective labour agreement” or “a collective agreement” which constitutes a collective agreement governing labour relations (Article 104), in particular around the issues listed for information purposes. Article 105 of the Code.

The collective agreement has a normative character and a conventional nature since all employees working in companies that are signatories can avail themselves of it. This is why it follows a registration procedure and can only be concluded by the most representative unions.

Indeed, the parties may seek to resolve the problems raised without seeking the conclusion of a collective labour agreement for reasons that may be attributable to the representativeness, the urgency, the limited size of the points under discussion or to any other cause.

In this case, one usually settles on the minutes of the negotiations or the signing of “protocols of agreements” which engage the parties, without the workers being able to avail themselves of them in the courts.

This is, in fact, what emerges from previous experience. Inspired by it, the code was oriented towards encouraging the parties to a collective dispute to seek conciliation with the labour inspector or the regional delegate of the Ministry of Employment (articles 551 to 556).

In case of failure of this attempt, the dispute is brought before the provincial or prefectural commission (articles 557 to 563), then before the national commission of inquiry and conciliation (articles 564 to 566).

In these last two phases, the tripartite commissions, whose president has investigative powers, are responsible for reaching an amicable solution between the parties. They may therefore enter into conciliation agreements, either before the initiation of these procedures or by recourse to conciliation bodies which draw up minutes to this effect, or even in the margins of such attempts or by recourse to the arbitration.

However, the Labour Code confers on the conciliation agreement and the arbitral award an enforceable force, which is not necessarily found in informal agreements (Article 581).

Collective bargaining is committed to the achievement of social peace and the development of an environment of understanding between the parties in the context of collective labour relations. This is why the legislator defines it as “a dialogue between the most representative trade union organizations or the most representative trade unions on the one hand, and one or more employers or the representatives of employers’ professional organizations on the other hand, at the movies of:

• Identify and improve working conditions and employment.
• Organize relations between employers and employees.
• As well as between employers and their organizations on the one hand and one or more trade union organizations of employees, the most representative on the other hand “.

Collective bargaining should take place at the firm or industry level once a year, unless another periodicity is provided for in the collective agreement.

Negotiations are also held once a year between the government and the professional organizations (Article 96).

A collective bargaining council has been set up to oversee social dialogue and promote collective bargaining (art 101).

Procedures have also been instituted to assist the parties in their negotiation both in the circumstances of peace and in conflict (Articles 97 to 100 and 551 and following).

The effectiveness of these measures remains subject to progress in collective representation and good practice in the field of labour relations, since it concerns the exercise of collective freedoms within the framework of the law, which may not require the parties to reach solutions.

International law and doctrine use the concept of the most representative unions to ensure the representativeness of the unions that enjoy a real weight, without seeking to classify them. For example, several decisions of the Credentials Committee of the ILO establish that it is up to the most representative unions in a country, to agree among themselves to designate their representative in the delegation of their country.

It is on this path that the code embarked when it laid down criteria that ultimately allow recognition of the representativity of several unions at the same time, which renders imprecise the use in the singular of the notion of most representative union.

Article 425 states that the benefit of this quality at the national level is recognized on the basis of the following elements:

• To obtain at least 6% of the number of employee delegates elected in the public and private sectors.
• The effective independence of the union.
• The actual ability of the union to contract.

To define the most representative unions at company or establishment level, it is necessary to consider the actual ability of the organization that invokes it to contract and obtain 35%, at least , the seats of employee representatives in the establishment or company concerned.

The result of this option is the coexistence of several nationally representative unions and the possibility of obtaining two most representative unions in the same establishment or enterprise.

The results of the employee delegates’ elections show that the union presence fails to ensure the required representativity in a number of establishments and enterprises, which will undoubtedly lead to the use of informal agreements, unless the unions are thus pushed to coalesce.

The Moroccan constitution states that “the right to strike remains guaranteed. An organic law will specify the conditions and forms in which this right can be exercised.

Since the Labour Code is of ordinary legislation and not an organic law, it has not specifically addressed this subject. Nevertheless, the procedure established for organizing collective bargaining, the watchkeeping function which has been devolved to the employment authority in the initiation of the conciliation procedure on the occasion of the outbreak of a collective dispute, the power to investigators and conciliation, the encouragement of the parties to resort to arbitration and the enforceability of conciliation and arbitration decisions are all factors which lead belligerents to negotiate in good faith and avoid strikes during the settlement of a labour dispute.

In addition, the Code has repeatedly proclaimed the right to strike and the protection of those who exercise it against discrimination, as well as the prohibition of hiring workers to replace strikers.

The employment policy is based on the institutional plan, in particular on the role of the National Agency for the Promotion of Employment and Skills (ANAPEC) as well as intermediation in hiring which aims at facilitate the reconciliation of supply and demand for employment “(article 475).

The government can thus create administrations under the authority in charge of work to provide their free services in the matter. However, Article 586 abolished the employment offices and no replacement of them by other public intermediation services.

In addition to these public structures, the Labour Code authorizes the creation of private employment agencies to perform the same functions with the possibility of rendering other services related to the search for jobs, the insertion of professional and the recruitment of “employees with a view to temporarily making them available to a third party called the user who sets their tasks and controls their execution”.

Thus, the working relationship can be established, either directly, by the immediate meeting of supply and demand through initiative, communication, competitions or other practical ways in which companies use know the vacancies and hire to fill them; or through ANAPEC or agencies authorized to perform intermediation.

In any case, the employee can not be asked to pay a consideration for the placement service that would have been returned to him.

An employer who wishes to hire employees must give priority to his former permanent and then temporary workers, whom he has dismissed for less than one year for structural, technical or sick reasons (Article 508). Similarly, the labour inspector may require the hiring of war-disabled or work-related persons or former combatants or former resistance personnel within the limit of 10% of permanent staff in the same category (Article 509).

More generally, Article 9 of the Code prohibits any discrimination which has the effect of violating or altering the principle of equal opportunity and equal treatment in employment or the exercise of nationality. a profession, particularly with regard to hiring, training and the conduct and distribution of work.

This principle has been reaffirmed, with regard to private intermediation agencies, to avoid preferential practices and those which tend to deprive freedom of association. Article 478 adds that “any special service offering or program delivery specifically designed to assist the most disadvantaged jobseekers in their search for employment” is not considered a discriminatory measure.

The employment relationship that is formed by an employment agency acting is characterized by its tripartite dimension since the employee is bound by a contractual relationship with the agency of temporary employment which makes it available to an employer with whom he performs the agreed task.

The employee thus places himself at the service of the temporary agency that pays his salary and is bound, in his regard, by all the obligations arising from the employment contract, even if the worker performs his work with others. (art 496). The user undertaking is obliged to take out insurance covering the risks of an accident at work and must observe the measures to protect its occupational safety and health.

The company seeking to hire temporary workers must first consult representatives of employee representatives and union representatives.

The faculty of resorting to this form of recruitment is removed from it, however, when it seeks, by this means, to cope with a temporary increase of work, whereas it would have done during the preceding year a dismissal of workers.

Authorized cases of recourse to temporary employment are limited to:

• The replacement of one employee by another in the event of suspension of the employment contract for a reason other than the strike.
• Circumstances of temporary extra work in the company.
• The period of execution of seasonal work.
  the need to perform work for which it is not customary to resort to the fixed-term contract.

In addition, the work done in the context of temporary work may not exceed the periods prescribed in section 500, that is, at most, the duration of the absence of the replaced worker, or six months in other cases.