Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Madagascar (Ratification: 1960)

In its previous comments, the Committee noted the observations made by the International Confederation of Free Trade Unions (ICFTU) in 2006 concerning cases of interference by the authorities in trade union matters, repression of trade unionists who participated in strikes in the public service and impediments to the right to strike in the maritime sector. In its reply, the Government indicates that, with regard to the trade union leader dismissed by the University of Antananarivo for leaving his post, the latter was subject to a disciplinary measure as he did not want to return to his former post following a temporary appointment at the Ministry of the Public Service, Labour and Social Legislation. It was merely a penalty against a public employee who had failed in his professional duties and not a measure against a trade unionist. With regard to disputes in the maritime sector, the Government indicates that it organized a round-table meeting between the parties to the dispute prior to an investigation of the alleged anti-union acts, further to the recommendations of the Committee of Freedom of Association (Case No. 2391). The Committee requests the Government to provide in its next report the findings of the independent investigation into discriminatory practices in the maritime sector and any action taken on these findings.

The Committee notes the comments dated 29 August 2008 of the International Trade Union Confederation (ITUC) concerning legislative matters already raised by the Committee in its previous comments, restrictions on the exercise of freedom of association in export processing zones, the risks of anti-union discrimination under a Decree of 2000 requiring trade unions, among other measures, to provide the list of their members, and interference by the authorities in the appointment of worker representatives to tripartite bodies. The Committee requests the Government to provide its observations in reply to the ITUC’s comments.

Legislative matters. Furthermore, in its previous comments, the Committee noted that Act No. 2003-044 of 28 July 2004 issuing the Labour Code did not take into account the Committee’s comments on several issues of non-conformity with the Convention.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee noted previously that the Labour Code maintains the exclusion from its scope of workers governed by the Maritime Code, and that the Maritime Code does not contain sufficiently clear and precise provisions ensuring the right of the workers to whom it applies to establish and join trade unions, as well as the related rights. It requested the Government to take the necessary measures to ensure that this right is recognized by the legislation and to indicate any measure taken or envisaged in this regard. The Committee notes the Government’s indication in its report that the Maritime Code of 2000 is under revision, that a draft new Code was presented in August 2008 during a workshop and that the draft text includes new provisions guaranteeing seafarers the right to establish and join unions, as well as all the related rights. The Committee notes these indications and requests the Government to provide a copy of the new Maritime Code once it has been adopted.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee noted previously that section 137 of the Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level “shall be established with the elements provided by the concerned organizations and the labour administration”. It indicated that, in order to avoid any interference by the public authorities in the decision regarding the representativeness of occupational organizations, this decision has to be made by an independent body having the confidence of the parties according to a procedure that offers full guarantees of impartiality. The Committee finally noted that a draft Decree on trade unions and representativeness had been submitted to the National Labour Council for discussion. The Government indicates that the draft text in question was not adopted unanimously and that discussions are still continuing on the matter. The Committee requests the Government to indicate any further developments in its next report.

Compulsory arbitration. The Committee noted previously that, under sections 220 and 225 of the Labour Code, in the event of the failure of mediation, the collective dispute shall be submitted by the ministry responsible for labour and social legislation either to a contractual arbitration procedure, in conformity with the collective agreement between the parties, or to the arbitration procedure of the competent labour court. The arbitration award is final and without appeal and brings an end to the dispute, including any strike that has been called in the meantime. In this respect, the Committee emphasized that recourse to compulsory arbitration to end a collective labour dispute is only acceptable if it is at the request of both parties involved in the dispute and/or in the case of disputes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. It indicated that, with the exception of cases in which it is derived from an agreement between the two parties, an arbitration procedure which gives rise to a final decision bringing an end to a strike constitutes, in sectors other than essential services, interference by the public authorities in the activities of trade unions, in conflict with Article 3 of the Convention. Finally, it requested the Government to take all the necessary measures to amend the respective provisions of the Labour Code. The Government merely indicates that in the event of the failure of mediation it is the responsibility of the mediator (labour inspector or the ministry responsible for labour) to submit the dispute to arbitration. It adds that in certain cases the presence of the authorities in the settlement of disputes is requested by the employer to accelerate the procedure. The Committee therefore once again requests the Government to take the necessary measures to amend the provisions of the Labour Code so as to ensure that recourse to arbitration to bring an end to a collective labour dispute can only be decided upon at the request of both parties and/or in the case of a strike in essential services in the strict sense of the term, that is in services the interruption of which would endanger the life, health or personal safety of the whole or part of the population. Accordingly, the right of workers’ organizations to organize their activities and to formulate their programmes without interference by the public authorities, including the exercise of the right to strike in sectors other than essential services, would be respected in accordance with Article 3.

Requisitioning. The Committee noted previously that section 228 of the Labour Code provides that the right to strike “may only be limited by requisitioning in case of the disruption of public order or where the strike would endanger the life, safety and health of the whole or part of the population”. The Committee indicated that the reference to cases of “acute national crisis”, rather than to the notion of the disruption of public order, would better reflect the position of the ILO supervisory bodies and would moreover lead to the repeal of section 21 of the Act No. 69-15 of 15 December 1969, which provides for the possibility of requisitioning workers in the event of the proclamation of a state of national necessity. Noting the Government’s indication that it has taken due note of its comments, the Committee trusts that the Government will soon report measures to formally amend section 228 of the Labour Code and Act No. 69-15, referred to above, in accordance with the principals recalled in this respect.

Sanctions in the event of strike action. The Committee noted previously that, under the terms of section 258 of the Labour Code, the “instigators and leaders of illegal strikes” shall be punished with a fine and/or imprisonment. The Committee recalls that it should only be possible to impose disciplinary sanctions for strike action in cases where the prohibitions in question are in conformity with the principles of freedom of association and that such sanctions should not be disproportionate to the seriousness of the violations. Nothing that the Government has taken due note of its comments, the Committee requests it to ensure that no penalty of imprisonment nor any other penal sanction may be imposed on workers or trade unionists who organize or participate in a peaceful strike. It requests the Government to indicate any measure adopted in this respect.