Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Night Work Convention, 1990 (No. 171) - Madagascar (Ratification: 2008)

Article 3(1) and (2) of the Convention. Minimum protection measures for night workers. The Committee notes the indications in the Government’s first report to the effect that it does not provide for any specific measures other than those laid down by Articles 4 to 10 of the Convention. The Committee notes that Decree No. 68-172 of 1968 issuing regulations on overtime and higher rates of pay for work at night, on Sundays and on public holidays, as amended and supplemented by Decrees Nos 72-226 of 1972 and 2007-007 of 2007 establishing obligations for the employer to provide transport for and ensure the safety of night workers, appears to be the only legislative text establishing specific measures for the protection of night workers. The Committee reminds the Government that the Convention calls for special measures to protect the health of night workers and assist them in meeting their family and social responsibilities, and specific measures must therefore be taken to give effect to the provisions of Article 6 (workers deemed unfit for night work), Article 7 (maternity protection), Article 9 (social services) and Article 10 (consultation of workers’ representatives) of the Convention, which set out a number of measures that are necessary for ensuring a minimum of protection for night workers. The measures to be taken may be introduced gradually but they remain compulsory and must be implemented. The Committee therefore requests the Government to supply further information on this matter.

Article 4. Health assessment. The Committee notes the Government’s statement that Malagasy legislation does not contain specific provisions concerning the health of night workers. However, it refers to section 5 of Decree No. 2003-1162 concerning occupational medicine, which provides for periodic medical examinations. The Committee requests the Government to take all necessary steps to give full effect to this Article of the Convention.

Article 5. Suitable first-aid facilities. The Committee notes that, under section 33 of Decree No. 2003-1162 concerning occupational medicine, first-aid measures exist with regard to accidents in the workplace, for both day and night workers. Section 41 provides that every establishment that belongs to an inter-company medical service must have the following equipment on the premises: a first-aid kit where there are less than 20 staff; a stretcher with blanket, a first-aid kit and a bed with two blankets where there are between 100 and 499 staff; a treatment room with a bed for medical examination or rest and a stretcher with a blanket where there are 500 staff or more. The Committee requests the Government to consider the possibility of introducing arrangements whereby night workers, where necessary, can be taken to a place where appropriate treatment can be provided, as required by this Article of the Convention.

Article 6. Workers deemed unfit for night work. The Committee notes the Government’s statement that there is no legislation that gives effect to this Article of the Convention. However, the Government adds that in practice night workers who, for health reasons, are certified as unfit for night work are transferred, whenever practicable, to similar jobs for which they are fit. The Committee requests the Government to take the necessary steps to give full effect to the provisions of this Article of the Convention.

Article 7(1)–(3). Maternity protection. The Committee notes that section 85(4) of the Labour Code provides that on no account shall women who are medically certified as pregnant be employed on night work during a period of up to eight weeks following childbirth. However, section 5.6 of Act No. 2007-037 of 14 January 2008 concerning export processing zones and enterprises in Madagascar provides that the provisions of the Labour Code concerning night work for women, in particular section 85 of the Labour Code or any other legislative or regulatory provision replacing it, are not applicable to export processing enterprises. The Committee reminds the Government that this Article of the Convention requires an alternative to night work (for example, similar or equivalent day work) to be available to women workers for a period of at least 16 weeks, including at least eight weeks before the expected date of childbirth (eight weeks under the terms of section 85(5)), or for longer periods on production of a medical certificate stating that it is necessary for the health of the mother or child. The Committee requests the Government to indicate whether the legislation provides, in addition to a transfer to day work, for a possible extension of maternity leave and also provides for women workers, during the 16-week period, to be protected against wrongful dismissal, to maintain their level of income and to retain their benefits regarding status, seniority and access to promotion.

Article 9. Social services. The Committee notes the information in the Government’s report to the effect that there are transport and safety provisions for night workers. Section 3 of Decree No. 2007-007 of 9 January 2007 provides that transport must be provided free of charge by the employer. Section 4 of the Decree states that in order to ensure the safety of workers against any form of aggression or accident, whether at the workplace or on the way to work, suitable facilities must be provided by the employer in accordance with the arrangements to be fixed by agreement between the parties, taking account of local conditions. Furthermore, the Committee recalls that the term “social services” as defined by the Convention seeks to cover a wide variety of measures, including transport. The Committee wishes to draw the Government’s attention to Paragraphs 13–18 of the Night Work Recommendation, 1990 (No. 178), which give guidance on other measures that might be considered appropriate for night workers, such as suitable rest facilities, flexible schedules for crèches and adaptable cultural, sporting or recreational activities. The Committee therefore requests the Government to indicate any specific steps taken or contemplated to give full effect to this provision of the Convention.

Article 10. Consultation of workers’ representatives. The Committee notes that the Government refers to section 158 of the Labour Code, which gives general indications concerning the tasks of staff delegates, such as presenting individual or collective demands to the employers, bringing any complaints or demands before the labour inspectorate, and monitoring the implementation of regulations relating to occupational safety and health and social protection. However, these are general provisions which say nothing regarding the obligation to consult representatives of the workers concerned regarding work schedules requiring the services of night workers. The Committee wishes to remind the Government that that this Article of the Convention calls for consultations with the workers’ representatives before introducing work schedules requiring the services of night workers, and regular consultations in establishments employing night workers, particularly to ensure that all necessary regulations relating to occupational safety and health and social services are given sufficient consideration. The Committee requests the Government to indicate the measures taken or contemplated to give full effect to this Article of the Convention.

Article 11 and Part V of the report form. Application in practice. The Committee notes the Government’s indication that, given the current political and social context in Madagascar, it is not yet possible to take any decision concerning the application of the provisions of the Convention. The Committee requests the Government to send the Office a copy of any new legislation or collective agreement governing night work, in accordance with the provisions of the Convention.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part-time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.