Weekly Rest (Industry) Convention, 1921 (No. 14) - Madagascar (Ratification: 1960)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide an overview of matters relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine the application of Conventions Nos 14 (weekly rest in industry) and 132 (holidays with pay) in a single comment.

The Committee notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE) and the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 1 September 2022. It also notes the observations of the FISEMA and the Christian Confederation of Malagasy Trade Unions (SEKRIMA), received with the Government’s report.

A.Weekly rest

Articles 4 and 5 of Convention No. 14. Total or partial exceptions – Compensatory rest. Further to its previous comments, the Committee notes the Government’s indication in its report that no new legislative measures have been adopted to bring sections 13 to 15 of Decree No. 62-150 of 28 March 1962, which envisage exemptions from weekly rest without any compensatory rest, with Article 5 of the Convention. In this regard, the Committee notes the observations of the FISEMA according to which no draft decree to amend Decree No. 62-150 has been discussed in the National Labour Council. It also notes the denunciation by the FISEMA that the weekly rest of certain employees in textile and industrial enterprises is not respected and that measures should be taken to penalize those enterprises. The Committee requests the Government to take the necessary measures to ensure that compensatory rest is granted to the workers covered by the Convention who are required to work on their weekly rest day and to provide information on any progress achieved in this regard.

B.Holidays with pay

Article 9(1) and (3) of Convention No. 132.Postponement and accumulation of paid holiday. In its previous comments, the Committee noted that section 88(5) of the Labour Code, under the terms of which workers have the possibility to accumulate their whole holiday entitlement over a period of three years preceding retirement, is not in conformity with the Convention. The Committee notes the Government’s indication in its report that no measures have been adopted to bring the current legislation into conformity with Article 9(1) and (3) of the Convention. The Committee recalls that Article 9 of the Convention provides that an uninterrupted part of the annual holiday with pay consisting of at least two working weeks shall be granted and taken each year, and the remainder may be postponed for a limited period. The Committee requests the Government to take the necessary measures to bring the legislation and practice into conformity with the Convention on this point.

Article 12.Prohibition of relinquishing annual holiday in exchange for financial compensation. Further to its previous comments, the Committee notes the Government’s indication that it is compulsory to take annual holiday and that it is prohibited to relinquish this right in exchange for financial compensation. The Committee notes that the FISEMA once again reports cases in which workers relinquish their annual leave in exchange for financial compensation. The FISEMARE observes a significant decrease in practices of “buying back holidays” in recent years, but indicates that the limitation to three years of the right to take annual holidays is problematic. The Committee requests the Government to reply to these observations and to provide details on the number of workers involved and the length of the annual leave period which is exchanged for financial compensation.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee recalls its previous comments in which it noted that sections 13 to 15 of Decree No. 62-150 of 28 March 1962 provide for exemptions to weekly rest without any compensatory rest in case of urgent work, in industries that process perishable goods or have to cope at certain times with an exceptional workload, and for the loading and unloading of goods at ports, landing stages and stations. The Committee notes in this connection the comments of the General Confederation of Workers’ Unions of Madagascar (CGSTM) received on 2 September 2013 and forwarded to the Government on 19 September 2013. The CGSTM indicates that the grant of weekly rest is for the most part respected, but objects that to date no draft decree has been submitted to the National Labour Council pursuant to section 80 of the Labour Code in order either to determine arrangements for the application of weekly rest or to update Decree No. 62-150 setting forth such arrangements. In its reply, the Government states that, in view of the current crisis in Madagascar, it is impossible to embark on a legislative amendment process. The Committee hopes that, as soon as the situation in the country allows, the Government will take the necessary steps to guarantee, as far as possible, compensatory periods of rest in the instances given in sections 13 to 15 of Decree No. 62-150, in accordance with Article 5 of the Convention.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee recalls its previous comments in which it noted that sections 13 to 15 of Decree No. 62-150 of 28 March 1962 provide for exemptions to weekly rest without any compensatory rest in case of urgent work, in industries that process perishable goods or have to cope at certain times with an exceptional workload, and for the loading and unloading of goods at ports, landing stages and stations. The Committee notes in this connection the comments of the General Confederation of Workers’ Unions of Madagascar (CGSTM) received on 2 September 2013 and forwarded to the Government on 19 September 2013. The CGSTM indicates that the grant of weekly rest is for the most part respected, but objects that to date no draft decree has been submitted to the National Labour Council pursuant to section 80 of the Labour Code in order either to determine arrangements for the application of weekly rest or to update Decree No. 62-150 setting forth such arrangements. In its reply, the Government states that, in view of the current crisis in Madagascar, it is impossible to embark on a legislative amendment process. The Committee hopes that, as soon as the situation in the country allows, the Government will take the necessary steps to guarantee, as far as possible, compensatory periods of rest in the instances given in sections 13 to 15 of Decree No. 62-150, in accordance with Article 5 of the Convention.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the adoption of Act No. 2003-044 of 28 July 2004, issuing the new Labour Code. In this respect, it notes that the provisions concerning weekly rest remain practically unchanged.

Article 5 of the Convention. Total or partial exceptions. Compensatory rest. The Committee notes that, under section 265(2) of the new Labour Code, Decree No. 62-150 of 28 March 1962 remains applicable until the publication of new legislation. Following up on its previous comments, the Committee notes that, according to sections 14 and 15 of this Decree, hours worked on the day of weekly rest in perishable goods industries or to cope at certain times with an exceptional workload are paid in the form of overtime but do not give rise to compensatory rest. It also notes that section 13 of this Decree excludes workers involved in urgent work on the weekly day of rest from the benefit of compensatory leave, if they are not usually in charge of maintenance or repair services in this enterprise. The Committee stresses once again that, under Article 5 of the Convention, the introduction of any exemptions from the weekly day of rest must give entitlement, as far as possible, to compensatory rest periods, which are essential for the protection of the health and well-being of workers. It requests the Government to take all the necessary measures to ensure, to the extent possible, a compensatory period of rest for these workers, in accordance with this Article of the Convention.

Article 7. Notices and rosters. The Committee notes the Government’s statement that specimen copies of notices and rosters detailing the days of collective rest are not yet available. It would be grateful if the Government could provide these specimen copies as soon as possible.

Part V of the report form. Practical application. The Committee notes the statistical data provided by the Government concerning the number of workers for the period from 2002 to 2006. It requests the Government to continue providing general information on the practical application of the Convention, and in particular extracts from the reports of the inspection services stating the number of violations of regulations concerning the weekly rest period that have been reported and the penalties imposed.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because they continued to respond to current needs (see GB.238/LILS/WP/PRS/1/2, paragraphs 17–18). The Committee accordingly invites the Government to contemplate ratifying Convention No. 106 and to keep the Office informed of any decisions taken or envisaged in this respect.

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

The Committee notes the adoption of Act No. 94-029 of 25 August 1995 issuing the Labour Code. It notes in particular that the provisions concerning weekly rest periods remain practically unchanged. The Committee would, however, like to draw the Government’s attention to the following points.

Article 2, paragraph 1, of the Convention. Scope of application. The Committee notes that section 1 of Decree No. 62-150 of 28 March 1962 stipulates that weekly rest is compulsory for all wage earners apart from workers or employees in water, air or rail transport firms for whom rest periods are regulated by special provisions. In this regard, the Committee would like to know whether Order No. 1855-1GT of 23 September 1953 and Orders Nos. 392-1GT and 393-1GT of 16 February 1954 are still in force, and whether they continue to apply, unamended, to these workers or employees. The Committee also invites the Government to indicate the special provisions applicable to workers or employees of water transport companies for whom there appear to be no specific regulations.

Article 5. The Committee notes that sections 13-15 of Decree No. 62-150 provide for exceptions to Article 2 of the Convention, without compensatory rest, in the event of certain forms of urgent work and in perishable goods industries. It recalls that Article 5 of the Convention requires provision to be made, as far as possible, for compensatory periods of rest for suspensions or diminutions of the weekly rest period. The Committee emphasizes the elementary nature of the principle of weekly rest in safeguarding the health and well-being of workers and in protecting them against any risk of abuse. It requests the Government to keep it informed of any measures taken or envisaged to ensure compensatory periods of rest for workers in such circumstances or to indicate the agreements or customs which already provide for such periods, in accordance with this provision of the Convention.

Article 7. The Committee notes that sections 5 and 6 of Decree No. 62-150 provide for the posting and maintaining of rosters detailing the days and hours of collective rest given by virtue of the exceptions provided for in the Decree. The Committee requests that the Government indicate the ways in which staff are informed of rest days within a company when these rest days do not stem from the exceptions to Article 2 of the Convention and also asks it to provide specimen copies of the notices and rosters used by employers.

Part V of the report form. The Committee reminds the Government that it has not provided any information on the practical application of the Convention since its ratification. It would therefore be grateful if the Government would provide, in its next report, extracts from reports of the inspection services, information concerning the number of workers covered by the current regulations and the number and nature of the contraventions reported.