Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee takes note of the Government’s report.

The Committee also takes note of the comments made by the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, which concern some legislative issues already raised in the Committee’s previous observation as well as cases of government interference in trade union affairs, repression of trade unionists having participated in a strike in the public sector and impediment of the right to strike in the maritime sector. The Committee requests the Government to respond to the comments of the ICFTU.

Furthermore, the Committee takes note of the enactment of Law No. 2003‑044 of 28 July 2004 enacting the Labour Code. The Committee notes, however, that the process of development and adoption of the Code has not taken into account the issues that it had raised in its last comments and which concern the following.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee notes that the new Labour Code maintains the exclusion of its scope of workers governed by the Maritime Code. The Government indicates that the Committee’s observations concerning trade union rights of seafarers have been communicated to the relevant department and that it will keep the Committee informed of any developments. Recalling that the Maritime Code in its present state does not contain sufficiently clear and precise provisions ensuring workers’ right to form and join trade unions, as well as the pertaining rights, the Committee requests the Government to take the necessary steps to ensure that this right is recognized by the legislation and to keep it informed of any measure taken or envisaged in this regard. Concerning the General Maritime Trade Union of Madagascar (SYGMMA), the Government indicates that it has been legally formed before the public authority and that it is functioning as the other trade unions which have been legally formed. The Committee takes note of this information.

Article 3. 1. Representativeness of employers’ and workers’ organizations. The Committee notes that section 137 of the new Labour Code provides that the representativeness of employers’ and workers’ organizations participating in the national level social dialogue “is established with the elements provided by the concerned organizations and the labour administration”. The Committee recalls that, in order to avoid any interference by the public authorities in the decision regarding the representativeness of professional organizations, this decision has to be made by an independent body having the trust of the parties and according to a process which guarantees impartiality. The Committee notes that a draft decree on trade unions and representativity has been elaborated and that it is presently before the National Work Council for discussion. The Committee requests the Government to keep it informed of developments in this regard.

2. Compulsory arbitration. The Committee notes that according to sections 220 and 225 of the new Code, in case of failure of mediation, the minister in charge of labour and social laws refers a collective dispute either to a contractual arbitration procedure, in conformity with the collective agreement of the parties or to a judicial arbitral procedure before the jurisdiction’s tribunal. The decision, which is final and without appeal, puts an end to the dispute and to any strike which could have started in the meantime. The Committee recalls that the resort to arbitration in order to put an end to a collective dispute can be justified only if it is requested by both parties and/or in case of a strike in essential services in the strict sense of the term, i.e. in services the interruption of which would endanger the life, health or personal security of all or part of the population. The Committee considers that, apart from the case where it stems from an agreement between parties, this arbitration procedure which gives rise to a final decision terminating a strike is, in sectors other than essential services, an interference from the public authorities in trade unions’ organization, conflicting with Article 3 of the Convention. Consequently, the Committee requests the Government to take all necessary measures to amend the new Labour Code in order to ensure the full right of workers’ organizations to organize their activities and formulate their programmes of action without interference from public authorities, notably in the exercise of the right to strike in sectors other than the essential services, in conformity with Article 3.

3. Requisitioning. The Committee further notes that section 228 of the new Code provides that the right to strike “cannot be limited by requisitioning only in cases of public order disruption or in cases where the strike would endanger life, security and health of all or part of the population”. The Committee notes in this respect that the corresponding version of the draft Labour Code (section 199) reflects better the position of the supervisory bodies by referring to cases of “acute national crisis” and not to the notion of public order disruption. Moreover, this version constituted a clear improvement which could lead to section 21 of Law No. 69-15 of 15 December 1969 being repealed. This section provides for the possibility of requisitioning workers in cases of a state proclamation of national necessity. Noting that, according to the Government, the provisions of section 228 of the Code and the law of 15 December 1969 have the same aim, the Committee expresses the hope that section 228 of the new Code – as well as Law No. 69-15 – will be formally modified in accordance with the principles mentioned.

4. Sanctions in case of strike action.  Finally, the Committee takes note that, according to section 258 of the Labour Code, the “initiators and leaders of illegal strikes” shall be punished with a fine and/or imprisonment. The Committee recalls that sanctions should be available in case of a strike only when the ban is in conformity with the principles of freedom of association and that such sanctions are in proportion to the acts committed. While noting that, according to the Government, this provision has never been used, the Committee requests the Government to exclude, in all circumstances, recourse to imprisonment measures against those who have organized or participated in a peaceful strike.