Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes the Government’s report and the replies provided to the comments made by the International Trade Union Confederation (ITUC) in 2008. With regard to the comments concerning the absence of social dialogue in the mining sector and in export processing zones, the Committee notes the Government’s indication that collective bargaining is being developed in the mining sector at the initiative of mining companies and that enterprises in export processing zones participate in the discussions held within the National Labour Council alongside the most representative organizations of employers and workers. The Committee notes the new comments made by the ITUC dated 24 August 2010 that a 2009 survey of the trade union movement revealed that collective agreements were signed mainly in public enterprises and that the privatization process has resulted in most of the collective agreements concluded in sectors such as the rail, telecommunications and energy sectors being obsolete. Furthermore, according to the ITUC, most known cases of anti-union discrimination concern employers in export processing zones where trade union organizations are not well established. Other cases of discrimination are also possible in so far as trade unions are obliged to provide lists of all their members, which, according to the ITUC, paves the way for anti-union practices. The Committee requests the Government to provide its comments in reply to the ITUC’s new observations.

Article 4 of the Convention. Criteria of representativeness. In its previous observation, referring to section 183 of the Labour Code which establishes a number of criteria for determining the representativeness of organizations of employers and workers, the Committee noted the Government’s indication that a draft decree on trade union organization and representativeness could not be adopted by the National Labour Council due to a lack of unanimous support, but that discussions were still being held on the matter. In its latest report, the Government indicates that the draft decree was approved by the National Labour Council in December 2008 and is awaiting adoption by the Council of Ministers. The Committee requests the Government to indicate in its next report any developments relating to the adoption of the decree on trade union organization and representativeness and, if applicable, to provide a copy of the text. It hopes that the text adopted will take into account the principle that trade union representativeness should always be determined according to objective and pre‑established criteria, so as to avoid any possibility of bias or abuse.

Promotion of collective bargaining. Referring to the provisions of the Labour Code concerning collective bargaining, the Committee previously requested the Government to provide information on the measures adopted to promote collective bargaining in enterprises employing fewer than 50 workers as well as on the collective agreements concluded in these enterprises. The Committee notes that, according to the Government’s report, the National Institute of Labour promotes collective bargaining through awareness raising and the training of staff representatives, trade union delegates and other workers on collective bargaining, particularly on negotiation techniques. The Institute also organizes annual workshops which are well attended by enterprises with fewer than 50 employees (25–30 on average). The Committee notes this information. It requests the Government to provide information on the number of collective agreements concluded in enterprises employing fewer than 50 workers and to indicate the number of workers and sectors covered.

Article 6. Collective bargaining for seafarers. In its previous comments, the Committee noted that the Labour Code excludes maritime workers from its scope and requested the Government to take the necessary steps to ensure the adoption of specific provisions on the collective bargaining rights of seafarers governed by the Maritime Code. The Committee notes that the Government indicates in its report that the Ministry of Labour participated in drawing up the draft new Maritime Code and that the fundamental rights of seafarers have been respected. However, as a result of the political and social crisis, the adoption of the draft Maritime Code by the Council of Ministers has been suspended. The Committee trusts that the draft new Maritime Code will provide that the rights guaranteed by the Convention are extended to maritime workers and hopes that the Government will be able to report its adoption in its next report.

Collective bargaining for public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. In its report, the Government indicates that the Public Service Higher Council (CSFOP) serves as a platform for negotiation and dialogue for public servants not engaged in the administration of the State. All legislative and regulatory texts concerning the public service must be referred for an opinion to the CSFOP, which is composed of an equal number of representatives of the relevant ministerial departments and the most representative trade union confederations. The Government adds that, despite the lack of a specific text, certain decrees implementing Act No. 2003-011 of 3 September 2003 on the general conditions of service of public servants, particularly those laying down the conditions governing travel and remuneration, are applicable to contractual public employees governed by Act No. 94-025 of 17 November 1994. The Committee notes this information, but considers that the situation still creates uncertainty to the legal framework applicable to the collective bargaining of public servants, which could hinder the development of collective bargaining and goes against the requirements of the Convention. It also notes that no measures have been taken to ensure protection against acts of anti-union discrimination and interference in the public sector. The Committee once again requests the Government to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. The Committee trusts that the Government will take the necessary steps to that end and will give an account of the progress made in its next report. Furthermore, the Committee requests the Government to provide a copy of any collective agreement concluded in the public sector.