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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Madagascar (Ratification: 1998)

The Committee takes note of the information in the Government’s report and of Act No. 2003-044 of 28 July 2004 issuing the Labour Code. It also notes the observations of 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU), most of which refer to legislative matters already raised by the Committee in previous comments, and to acts of anti-union discrimination.

Article 4 of the Convention. Determining representativity. 1. With reference to its previous comments, the Committee notes with interest that section 183 of the new Labour Code establishes a number of criteria for determining representativity in respect of organizations of employers and workers. The Committee notes that in its report, the Government states that there should be no ambiguity in determining the representativity of employers’ and workers’ organizations that participate at national level, since a draft text on this matter has been sent to the National Labour Council (CNT) for debate. The Committee requests the Committee to keep it informed on this matter and to provide a copy of the text as soon as it is adopted.

2. Promotion of collective bargaining. The Committee notes the Government’s statement that the Ministry of Labour plans to carry out information and advocacy campaigns in 2006 on the need to organize negotiations, with training for enterprises that have decided to conclude a collective agreement. Noting that the new Labour Code protects collective bargaining above all in enterprises with more than 50 workers, the Committee requests the Government to promote collective bargaining in small and medium-sized enterprises and to keep it informed in this respect.

3. Collective bargaining for seafarers and public employees. In its previous comments, the Committee requested the Government to provide additional information on the provisions applying to collective negotiation of the working conditions of seafarers covered by the Maritime Code and public servants not engaged in the administration of the State, together with data on the number of collective agreements and the number of workers covered.

The Committee notes that, in its report, the Government indicates that the Committee’s comments have been sent to the various departments concerned. The Committee observes that the new Code continues to exclude public servants and maritime workers from its scope (section 1). The Committee recalls that under the Convention, both seafarers and public servants not engaged in the administration of the State must be able to enjoy the right to collective bargaining in the same manner as other categories of workers. It again requests the Government to take the necessary steps to ensure that specific provisions are adopted on the collective bargaining rights of seafarers governed by the Maritime Code and of public servants not engaged in the administration of the State. Please keep the Committee informed on this matter.

4. Compulsory arbitration when mediation fails. The Committee notes that section 220 of the new Code provides that where mediation fails, the collective dispute may be referred by the Minister responsible for labour and social legislation to arbitration by the competent labour tribunal. The Committee reminds the Government that it should be possible to impose compulsory arbitration only in the public service (in connection with public servants engaged in the administration of the State) or in essential services in the strict sense of the term, or in the event of an acute national crisis. The Committee accordingly requests the Government to take the necessary steps to amend the legislation.