Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Madagascar

Holidays with Pay Convention (Revised), 1970 (No. 132) (Ratification: 1972)
Night Work Convention, 1990 (No. 171) (Ratification: 2008)

In order to provide an overview of matters relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine the application of Conventions Nos 132 (holidays with pay) and 171 (night work) in a single comment.

The Committee notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE) and the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 1 September 2022. It also notes the observations of the FISEMA and the Christian Confederation of Malagasy Trade Unions (SEKRIMA), received with the Government’s report.

A.Paid leave

Article 5(2) of Convention No. 132. Minimum period of service for holiday entitlement. Further to its previous comments, the Committee notes the Government’s reaffirmation in its report that in practice workers can avail themselves of their entitlement to 2.5 days of holiday for each month of service even before their total service amounts to the minimum period of 12 months set out in section 88(1) of the Labour Code. However, the Government indicates that at present no measures have been taken to bring the current legislation into conformity with Article 5(2) of the Convention. While taking due note of this information, the Committee requests the Government to indicate whether measures have been taken or are envisaged to bring the national legislation into line with the practice that is generally followed.

B.Night work

Article 3 of Convention No. 171. Specific measures for night workers. The Committee notes that section 85 of the Labour Code provides that women may not be employed at night in industrial establishments, with the exception of establishments in which only the members of the same family are employed. The Committee recalls that protective measures applicable to women’s employment at night which go beyond maternity protection and are based on stereotyped perceptions regarding women’s professional abilities and role in society violate the principle of equality of opportunity and treatment between men and women (2018 General Survey concerning working-time instruments, paragraph 545). The Committee requests the Government to review the national legislation in light of this principle, in consultation with the social partners. Moreover, noting that the country is still bound by the Night Work (Women) Convention (Revised), 1948 (No. 89), and that the window for the denunciation of that Convention will be open from 27 February 2031 to 27 February 2032, the Committee encourages the Government to envisage its denunciation at the appropriate time.

Articles 4 and 5. Health assessment. Suitable first-aid facilities. Further to its previous comments, the Committee notes the Government’s indications that sections 5 to 12 of Decree No. 2003-1162 of 17 December 2003 on the organization of enterprise medicine, as amended by Decree No. 2011-631 of 11 October 2011, provide that: (i) the systematic examinations that employers are required to have carried out include the examination upon recruitment, regular medical examinations, examinations upon taking up work again following an absence due to occupational disease, and the examinations envisaged for women and children; (ii) in case of necessity, the physician may call for additional examinations upon recruitment, as well as regular examinations and systematic testing for occupational diseases; (iii) the care provided by occupational health services, including health assessments for workers, are free of charge; and (iv) the medical file for workers created following the recruitment examination is confidential. It also notes that the Decree provides for the availability of first-aid facilities, including the presence of nursing personnel responsible for the provision of elementary care and first aid in the event of accidents (section 33); the availability of first-aid equipment (section 41); the evacuation of workers (section 16); and the training in first aid of at least one in every 50 workers (section 5(b)). The Committee notes this information, which replies to the points raised previously.

Article 6. Workers declared unfit for night work. Further to its previous comments, the Committee notes the Government’s reference to sections 8 and 10 of Decree No. 2003-1162, which provides that: (i) in the event of incapacity to perform the envisaged work, noted during the health assessment prior to assignment, the enterprise physician shall inform in writing the person concerned and the employer concerning the types of work compatible with the worker’s physical and/or intellectual capacity; and (ii) in the event of return to work following an absence due to occupational disease, the physician shall indicate the capacity of the worker to return to the previous work or the need for functional rehabilitation and a change of assignment. The Government indicates that, in practice, the employer has to take into account the decision of the occupational physician when it is indicated in a medical certificate that a worker is declared unfit for night work for medical reasons. Nevertheless, the Committee observes that the legislation does not appear to contain provisions under which, when a transfer to a similar job is not practicable, workers shall be granted the same benefits as other workers who are unable to work or to secure employment, and that a night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that full effect is given to this provision of the Convention.

Articles 8 and 9. Compensation for night workers. Social services. Transport. The Committee notes that in its observations the FISEMARE refers to cases of the non-payment of the wage supplement for night work. The Committee also notes that the FISEMA and the SEKRIMA call for the adoption of support measures to ensure the transport and safety of night workers when commuting, as well as breaks, and call for regulations to be adopted to improve the effect given to the Decree that is in force. The Committee requests the Government to provide its comments in this respect.

Article 10. Consultation of workers’ representatives. The Committee notes that, in response to its previous comment, the Government has not provided any further information. The Committee requests the Government to indicate the manner in which it is ensured that, before introducing work schedules requiring the services of night workers, the employer consults the workers’ representatives concerned on the details of such schedules and the forms of the organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services that are required, as required by this Article of the Convention.