Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

In its previous comments, the Committee requested the Government to provide its observation in reply to the comments made by the International Trade Union Confederation (ITUC) in August 2008 concerning restrictions on the exercise of freedom of association under a Decree of 2000 requiring trade unions to provide the list of their members, interference by the authorities in the appointment of worker representatives to tripartite bodies and violations of trade union rights in the maritime sector. The Committee notes that, according to the Government’s report, solutions were found to these matters and that a draft decree on trade union organization and representativeness currently being drafted should allow all problems to be resolved. Furthermore, the Committee notes the ITUC’s comments dated 24 August 2010 concerning the legislative matters already raised by the Committee, as well as restrictions on the right to strike imposed on state employees. The Committee requests the Government to provide in its next report: (i) its observations in reply to the ITUC’s new comments; (ii) information on the adoption of the decree on trade union organization and representativeness and, if applicable, a copy of the text adopted; and (iii) the findings of the independent investigation that the Government indicates is under way concerning the anti-union acts in the maritime sector, and any action taken on these findings.

Legislative matters. 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. The Committee notes the Government’s indication in its report that the Committee’s comments will be transmitted to the National Labour Council so that it can carry out an analysis of the Labour Code and take the appropriate measures. The Committee hopes that amendments will soon be made to the Labour Code and that they will take due account of the comments that it has been making for several years. The Committee recalls that its comments concern the following points.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee previously noted 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. Furthermore, the Committee noted that the Maritime Code of 2000 was being revised and that a draft new Code including new provisions guaranteeing seafarers the right to establish and join trade unions, as well as all the related rights, had been presented in August 2008. The Committee requests the Government to take the necessary measures to ensure that this right is recognized in the legislation.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously noted 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 organizations concerned and the labour administration”. The Committee requests the Government to avoid any interference by the public authorities in the decision concerning the representativeness of occupational organizations and to take measures to ensure that this decision is made by an independent body having the confidence of the parties according to a procedure that offers full guarantees of impartiality.

Compulsory arbitration. The Committee previously noted 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 accordance 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 regard, the Committee recalls that recourse to arbitration to end a collective dispute is acceptable only if it is at the request of both parties involved in the dispute and/or in the case of a strike in essential services in the strict sense of the term. The Committee requests the Government to take all necessary measures to amend the provisions of the Labour Code concerning arbitration based on the above principle.

Requisitioning. The Committee previously noted that section 228 of the Labour Code provides that the right to strike “may be limited by requisitioning only in case of the disruption of public order or where the strike would endanger the life, safety or health of the whole or part of the population”. The Committee recalls 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 could moreover lead to the repeal of section 21 of 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. The Committee requests the Government to take necessary measures to that end.

Sanctions in the event of strike action. The Committee previously noted that, under section 258 of the Labour Code, the “instigators and leaders of illegal strikes” shall be punished by a fine and/or imprisonment. The Committee recalls that no penal sanctions should be imposed on a worker for having carried out a peaceful strike and that therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed on strikers. The Committee requests the Government to take all necessary measures to ensure that this principle is observed.