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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Madagascar (RATIFICATION: 1961)

1. Article 1 of the Convention. Legislative developments. The Committee notes the revised Labour Code (Act No. 2003-044) of 28 July 2003, which in section 52 provides that with regard to wage fixing no distinction may be made on the basis of the workers’ origin, colour, national extraction, sex, age, trade union affiliation, opinion and status. The Committee also notes that section 261 provides that any discriminatory treatment based on race, religion, origin, sex, trade union affiliation as well as political opinion or membership in relation to access to employment and vocational training, conditions of employment and promotion, conditions of remuneration and dismissal, shall be punished with a fine or imprisonment. While welcoming that the revised Labour Code prohibits discrimination on a number of grounds in all areas of employment, the Committee nevertheless notes that section 261 does not explicitly prohibit the principle of non-discrimination on the basis of colour and national extraction and that it does not define what constitutes discriminatory treatment. Further, the Committee notes the new Civil Service Statute (Act No. 2003-011) of 3 September 2003, which pursuant to section 5 prohibits discrimination in relation to its application on grounds of sex, religion, opinion, origin, parentage, wealth, political conviction or trade union affiliation, without setting forth the principle of non-discrimination on the basis of race, colour and national extraction. In view of the above, the Committee notes that the national legislation on discrimination is inconsistent and that there is no provision explicitly prohibiting direct and indirect discrimination in employment and occupation with respect to all the Convention’s grounds. Recalling that, where provisions are adopted to give effect to the principle laid down in the Convention, they should include all the grounds of discrimination specified in Article 1(1)(a) of the Convention, the Committee asks the Government: (a) to clarify whether the term "origin" referred to in section 261 of the Labour Code and in section 5 of the Civil Service Statute is intended to cover national extraction; (b) to consider harmonizing and supplementing the abovementioned provisions in order to ensure the prohibition of discrimination on all grounds set out in the Convention; and (c) to consider further strengthening the legal protection of discrimination by introducing a general prohibition of direct and indirect discrimination in accordance with the Convention.

2. Sexual harassment. Further to its 2002 general observation on the issue, the Committee notes with interest that the definition of sexual harassment in section 5 of the revised Labour Code includes both quid pro quo and hostile working environment harassment and protects employees against victimization for having witnessed sexual harassment. The Committee asks the Government to provide information on the application of section 5 in practice, including any court decisions and their outcome as well as on any practical measures taken or envisaged, including awareness-raising activities, to eliminate and prevent sexual harassment in the workplace.

3. Access to the public service. With respect to its previous comments on equal treatment in access to employment in the public service, the Committee notes the Government’s statement that access to different jobs in the public service is regulated by the new Civil Service Statute. It also notes that the texts governing admission to competitions in schools and centres for the training of future public servants are currently under examination in order to be in conformity with the new Civil Service Statute. However, the Committee notes from the Government’s report that no positive measures have been taken to promote equal access for women at all levels of responsibility in the public service and that no statistical data on the number of civil servants, disaggregated by sex, are available as the list of civil servants is currently being reviewed. Recalling the importance of active measures, including awareness-raising and other promotional activities, in order to promote the access of women in the public service at all levels of responsibility, the Committee hopes that the Government’s next report will contain information on such measures as well as data on the number of public servants, disaggregated by sex, in the various categories and posts of the public service, and information showing how these figures have evolved over the years.

4. Vocational training. With reference to its previous comments on the low attendance rate of girls and women in technical and vocational schools, the Committee notes the Government’s statement that it will keep it informed about any action taken by the Ministry of technical education and vocational training in this regard. The Committee hopes that the Government’s next report will contain information on the progress made to increase female enrolment in technical and vocational schools, particularly in training branches not deemed to be traditionally feminine, and on any other action taken by the Ministry, including with regard to the vocational training project to train specialized educators in the field of information, education and communication (IEC) and to inform and raise awareness among girls about various jobs, for which ILO assistance had been sought.

5. Obligation to declare and pursue a national policy to promote equality of opportunity and treatment in respect of employment and occupation. The Committee notes the Government’s statement that to date there is no specific policy on equal opportunities in the public and private sectors. In this respect, the Committee recalls the importance of every country formulating, updating and implementing a national policy to promote equality of opportunity and treatment in employment and occupation in law and practice on all the grounds listed in the Convention. Such a policy is not only one of the primary requirements of the Convention, it is a fundamental principle for the establishment of decent work for men and women. The Committee therefore asks the Government to take active steps to declare and pursue a national policy on equality with a view to eliminating discrimination on all the grounds listed in the Convention, and to report on the progress made in this regard.

6. Article 4. The Committee reiterates its request to the Government to provide information on the appeal procedures available to workers in both the public and private sectors who consider that they have suffered prejudicial treatment in this area as well as, where appropriate, copies of judicial decisions handed down in these cases.

7. Article 5. Special protective measures. The Committee notes that, pursuant to section 93 of the revised Labour Code, certain types of work can be prohibited for women and pregnant women, by decree and upon advice of the National Council of Labour. Please provide information on the list of jobs prohibited to women, including copies of the relevant decrees, and the reasons for such prohibition.