Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Private Employment Agencies Convention, 1997 (No. 181) - Madagascar (Ratification: 2019)

The Committee welcomes the Government’s first report on the application of the Convention and wishes to draw its attention to the following points.

Articles 1(1) and 3(1) of the Convention. Definition and legal status of private employment agencies. The Government indicates that the texts that are in force do not define the activities or the legal status of private employment agencies. At the same time, the Government indicates that, by Order No. 20,308/2015/MEETFP of 11 June 2015, it cancelled the approval of private placement agencies. The Committee notes that, in a study on equitable recruitment in Madagascar, published in 2021, it is reported that this cancellation had the effect of favouring the development of informal agencies acting outside the legal framework and of worker protection measures. By way of illustration, the practice of commissions to be paid by workers, which are prohibited by the Convention and the Madagascar Labour Code, is increasing rapidly. Noting that the Office is working with the Government to align the national legislation with the Convention, the Committee requests the Government to indicate the progress achieved in the incorporation into the national legislation of a definition of private employment agencies setting out the services and activities that they are authorized to provide and the determination of their legal status. The Committee also requests the Government to indicate the employers’ and workers’ organizations consulted for this purpose.

Article 4. Freedom of association and collective bargaining. The Government indicates that the provisions of the Constitution and the Labour Code respecting freedom of association and collective bargaining apply to the “workers of private employment agencies”. The Committee requests the Government to specify whether the provisions of the Madagascar Constitution and Labour Code respecting the right to freedom of association and collective bargaining also apply to temporary workers of user enterprises and, if so, to indicate the extent to which they are applicable.

Article 5(2). Special services or programmes designed to assist the most disadvantaged workers. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to encourage private employment agencies to collaborate or participate in the provision of special services or targeted programmes to assist the most disadvantaged workers to find work.

Article 8(1). Protection of migrant workers. The Government indicates that the foreign workers who have requested the services of the regional labour inspection service of Analamanga have benefited from the same protection as national workers. The Government adds that the Ministry of Employment controls the activities of private employment agencies in Madagascar, particularly in relation to the treatment of migrant workers. The Government emphasizes that, in accordance with section 5 of Decree No. 2005-396 of 28 June 2005, the approval issued for private employment agencies can be revoked at any time for any violation of the regulations in force. In its latest comments in relation to the Employment Service Convention, 1948 (No. 88), the Committee notes that the Government has cancelled the approval of private employment agencies as a result of cases of the ill-treatment of Madagascan workers abroad. The Committee also notes that the Government is working on bringing the national texts into conformity with Convention No. 181, including through the development of procedures respecting the exit from the national territory of Madagascan migrant workers. The Committee requests the Government to provide updated and detailed information on the measures adopted or envisaged to ensure that migrant workers who are recruited or placed by private employment agencies benefit from adequate protection and to prevent abuses being committed against them. The Committee also requests the Government to indicate the employers’ and workers’ organizations consulted in this regard.

Article 8(2). Bilateral agreements. The Government indicates that bilateral agreements have been concluded on criminal matters with China and the island of Mauritius covering “all legal situations” and that a bilateral agreement exists with China on judicial cooperation. The Government also reports “procedures for the conclusion of bilateral agreements” with France, Comoros and the island of Mauritius on the transfer of prisoners. The Government has not provided copies of the agreements concluded or under discussion and does not explain the manner in which they contribute to the prevention of abuses and fraudulent practices in relation to migrant workers. The Committee requests the Government to provide detailed and updated information concerning the bilateral agreements concluded to prevent abuses and fraudulent practices in relation to the recruitment, placement and employment of migrant workers. It also requests the Government to provide copies of these agreements.

Article 10. Investigation of complaints. The Government indicates that the Ministry of Labour and the Ministry of Foreign Affairs can report to the regional directorates of labour and employment that there are waves of recruitment in private employment agencies. In the event of anomalies, the regional directorates of labour and employment can refer the matter to the Ministry of Public Security. The Government does not describe the machinery and procedures for the investigation of complaints and allegations from the users of private employment agencies and does not refer to the legislation applicable in this regard. The Committee requests the Government to provide a more detailed description and the applicable legal texts relating to machinery and procedures for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies.

Articles 11(c) to (j) and 12. Adequate protection of workers employed by private employment agencies. Respective responsibilities of private employment agencies and user enterprises. The information contained in the Government’s report on Articles 11 and 12 of the Convention is brief. The Government indicates that, according to the Department of Social Security, general legislative provisions in this field are applicable to workers employed by private employment agencies. The Government adds that, according to regional inspection services, workers placed by private agencies are treated in the same way as other workers. The Government specifies that laws in Madagascar do not provide for the sharing of responsibility between private employment agencies and user enterprises. The Committee recalls that, in its 2010 General Survey concerning the employment instruments (paragraph 313), it emphasized the need to have a clear legal framework in place to secure adequate protection in the areas enumerated in Articles 11 and 12 of the Convention. It recalls that, given the particularities of working arrangements in which employees work for a user enterprise that assigns and supervises the execution of the work and the indeterminacy of responsibility, it is necessary for Member States to address these particularities through measures that ensure that in each case effective responsibility is determined. The Committee requests the Government to specify the provisions that secure adequate protection for workers employed through private employment agencies in each of the areas set out in Article 11(c) to (j) of the Convention. The Committee also requests the Government to indicate the measures that have been adopted or are envisaged to determine and allocate the respective responsibilities of private employment agencies and user enterprises in each of the areas covered by Article 12 of the Convention.

Article 13(1) and (4). Cooperation between the public employment service and private employment agencies. In its first report on the Convention, the Government has not provided information on the promotion and implementation of cooperation between the public employment service and private employment agencies. The Government indicates that the provision to the public of data on private employment agencies is not envisaged. The Committee refers in this regard to its comments in relation to Article 11 of the Employment Service Convention, 1948 (No. 88), and requests the Government to provide updated and detailed information on the measures adopted or envisaged to promote cooperation between the public employment service and private employment agencies. The Committee also requests the Government to indicate the measures adopted or envisaged to compile and, at regular intervals, make publicly available information on the activities of private employment agencies.

Article 14(2) and (3). Remedies and penalties. The Committee requests the Government to indicate the measures adopted or envisaged to include in the new legislation giving effect to the Convention adequate remedies and penalties to curb the activities of informal agencies operating in Madagascar and to ensure that they cease their practices that are contrary to the provisions of the Convention.