Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) set out in a communication received on 2 June 2015. The Committee observes that SEKRIMA refers in particular to a number of dismissals for strike action, the imprisonment of four workers of the Antsirabe urban community who took strike action for the non-payment of several months’ wages, and alleged unequal treatment of first-level unions affiliated to SEKRIMA during the declaration of existence procedure. The Committee requests the Government to send its comments on the matters raised by SEKRIMA. The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Restriction on trade union activities in the maritime sector. With regard to the independent inquiry conducted into anti-union acts in the maritime sector, the Committee notes the information from the Government to the effect that with the re establishment of the rule of law after the crisis in Madagascar, the inquiry will be resumed. Observing that it has been raising this matter with the Government since 2008, the Committee urges the Government to ensure that the abovementioned independent inquiry is concluded as soon as possible and to communicate the findings thereof.

Legislative matters

Article 2 of the Convention. Workers governed by the Maritime Code. With regard to the exclusion from the scope of the Labour Code of workers governed by the Maritime Code and the absence from the Maritime Code of sufficiently clear and precise provisions to ensure the right of the workers to whom it applies to establish and join trade unions, the Committee notes that the Government indicates that: (i) a draft Maritime Code has been prepared; (ii) the draft establishes the right of seafarers to establish and join trade unions, and related rights; and (iii) the adoption of the Maritime Code requires the involvement of a number of institutional bodies. While noting that a new Maritime Code is to be adopted shortly, the Committee expresses the firm hope that the right to organize of seafarers will be recognized in the near future, both in law and in practice.

Article 3. Representativeness of workers’ and employers’ organizations. Noting 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 on the basis of evidence provided by the organizations concerned and the labour administration”, the Committee requested the Government to take steps to ensure that representativeness is determined in a procedure affording full guarantees of impartiality, carried out by an independent body having the confidence of the parties. The Committee notes that the Government reports the adoption, on 6 September 2011, following a favourable opinion from the National Labour Council, of Decree No. 2011-490 on employers’ and workers’ organizations and representativeness. The Committee observes that according to the Decree the following are deemed representative: (i) at enterprise level, the trade unions in the enterprise that obtain at least one staff delegate in occupational elections; (ii) at sectoral, regional or national levels, the trade unions obtaining at least 10 per cent of all the staff delegates elected at the level concerned. The Committee also observes that the same Decree provides that the criteria of representativeness applying to employers’ organizations are: (i) the number of enterprises directly or indirectly affiliated; (ii) the size of the staff of the enterprise; (iii) the contributions paid to social security bodies; and (iv) geographical presence. The Committee further observes that according to the Decree, for the criteria to apply there must be agreement among the employers’ organizations. While noting with interest the objective nature of the criteria set in Decree No. 2011-490, the Committee requests the Government to provide information on the practical effect given to the Decree and its impact on the determination of the employers’ and workers’ organizations that participate in social dialogue at national level.

Compulsory arbitration. The Committee requested the Government to take the necessary steps to amend sections 220 and 225 of the Labour Code which provide that if mediation fails, the collective dispute is referred by the Minister in charge of labour and social legislation to a process of arbitration and that the arbitral award ends the dispute, as well as any strike that may have been started in the meantime. The Committee notes that, according to the Government, this observation will be studied by the National Labour Council. The Committee recalls that, in a collective dispute a compulsory arbitration order is acceptable only where strikes may be prohibited, namely in the case of public servants exercising authority in the name of the State, in essential services in the strict sense of the term and in the event of an acute national crisis. The Committee, therefore, requests the Government once again to take all necessary measures to amend the provisions of the Labour Code that concern arbitration so as to align them with this principle.

Requisitioning. In order to limit the risk of interference by public authorities in the affairs of employers’ and workers’ organizations, in accordance with Article 3 of the Convention, the Committee requested the Government to take the necessary steps to amend section 228 of the Labour Code on the requisitioning of striking employees, so as to replace the notion of disruption of the public order by the notion of acute national crisis. The Committee notes that the Government indicates that this observation will be studied by the National Labour Council. The Committee requests the Government once again to take all necessary steps to amend section 228 of the Labour Code on requisitioning in order to align it with the principle set out above.