Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Protection of Workers' Claims (Employer's Insolvency) Convention, 1992 (No. 173) - Madagascar (Ratification: 1998)

The Committee notes the Government’s report and the information it contains as well as the adoption of Act No. 2003-044 of 28 July 2004 issuing the Labour Code.

Article 6 of the Convention. Protected claims. The Committee notes with interest that by virtue of section 29 of the new Labour Code, which reproduces section 38 of the former Code, the privilege protecting workers’ claims extends to severance pay, pay in lieu of notice, and any damages and interests due. The Committee notes, however, that the Government has not taken the opportunity of revising the Labour Code to also amend the provisions limiting the privileged treatment to the remuneration due for the last 60 days of work whereas, under the Convention, the privilege must cover at least three months’ wages. The Committee also notes that the new Labour Code has not extended the protection of privilege of workers’ claims to paid absence other than paid leave. In this regard, the Committee notes that, according to the indications given by the Government in its report, the payment of amounts due for such absences (sick leave or maternity leave) is generally made at the time when the absences occur. The Committee recalls, however, that, under this Article of the Convention, the privilege must cover workers’ claims for amounts due in respect of paid absences other than annual leave, relating to a specified period, which may not be less than three months, prior to the insolvency or the termination of the employment. The Committee again expresses the hope that the Government will shortly be able to amend its legislation in order to give full effect to this provision of the Convention.

Article 7. Limitations. The Committee notes that section 73(2) and (3) of the new Labour Code are limited to reproducing the corresponding provisions of section 83 of the former Code under which remuneration due to employees and apprentices for the last 60 days of work has absolute priority up to a monthly ceiling laid down by regulations. The Committee notes that, in its report, the Government confirms that it will keep the Committee informed of any developments relating to the adoption of regulations in application of this provision.

Article 8. Rank of privilege. The Committee notes with satisfaction that section 73(1) of the new Labour Code provides that workers’ claims have a higher rank of privilege than those of the State and the social security system.

Part IV of the report form. The Government is requested to provide general indications as to the manner in which the Convention is applied in practice including, if possible, information concerning the number of workers covered by the legislation giving effect to the Convention.