Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous comments

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2023, and the observations of the Randrana Sendikaly Alliance, received on 30 September 2023, which relate to issues examined in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2023 on the application of the Convention by Madagascar, during which it noted with concern the long-standing issues relating to the restrictions on trade union activities in the maritime sector, the absence of any elections for staff representatives since 2015 and the use of compulsory arbitration. The Committee expressed its deep concern regarding the imprisonment of Mr Zotiakobanjinina Fanja Marcel Sento and noted the Government’s information regarding his release by Presidential Decree. Taking into account the discussion of the case, the Committee urged the Government to:

• take all necessary steps in order to ensure that the new Maritime Code guarantees to seafarers the right to freely establish and join the organizations of their own choosing without previous authorization;
• organize as soon as possible the elections for the designation of workers’ representatives;
• refrain from intervening in the activities of workers’ and employers’ organizations, including in the designation process of their representatives in the various social dialogue bodies;
• ensure that unilateral recourse to compulsory arbitration as a way to avoid free and voluntary collective bargaining is employed only in very limited circumstances and take the necessary measures to amend sections 220, 225 and 228 of the Labour Code to bring them in conformity with the Convention;
• immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento;
• refrain from using the criminal law to target trade unionists;
• amend all provisions of the Criminal Code hindering the right to freedom of association of workers and employers; and
• provide a copy of the Maritime Code once adopted and detailed information to the Committee of Experts before 1 September 2023 on the outcome of any meeting concerning allegations of anti-union acts in the maritime sector, on any developments on the adoption of the Maritime Code and on the factors that have prevented the holding of elections for staff representatives since 2015.

The Conference Committee also recommended that the Government avail itself of the technical assistance of the Office to ensure full compliance with its obligations under the Convention.

The Committee notes with deep regret that the Government has not submitted the report requested under the Convention. The Committee considers that the absence of information in this regard indicates not only an apparent lack of action by the Government to follow-up on these recommendations, but also an apparent lack of commitment to ensure compliance with its standards-related obligations. The Committee urges the Government to take, without delay, all the above-mentioned measures which the Conference Committee requested the Government to take, and which require immediate action, and to report any progress achieved in the implementation of these measures.The Committee also urges the Government to avail itself of the technical assistance of the Office to ensure full compliance with its obligations under the Convention.

Trade union rights and civil liberties. The Committee noted the Government’s indications that the trade unionist Mr Zotiakobanjinina Fanja Marcel Sento had been released. However, the Committee notes with deep concern that he has been reimprisoned following a decision of the Court of Appeal of Madagascar dated 16 June 2023. The Committee deplores the treatment of Mr Sento, who is accused of having posted on Facebook the results of meetings held with the management of an enterprise in the textile sector, which was in the performance of his trade union duties. In these circumstances, the Committee wishes to firmly recall that the resolution adopted by the Conference in 1970 concerning trade union rights and their relation to civil liberties reaffirms the essential link between civil liberties and trade union rights, which was already emphasized in the Declaration of Philadelphia (1944), and enumerates the fundamental rights that are necessary for the exercise of freedom of association, which include: the right to freedom and security of person and freedom from arbitrary arrest and detention; freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontier; and the right to a fair trial by an independent and impartial tribunal (see the 2012 General Survey on the fundamental Conventions, paragraph 59). In the same way as the Conference Committee, the Committee urges the Government to take the necessary steps to immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee previously noted that a new Maritime Code was to be adopted and requested the Government to ensure that the Code provides for the right of seafarers to establish and join trade unions. The Committee urges the Government to provide a copy of the Code once adopted, and to indicate the specific provisions providing for the right of seafarers to establish and join trade unions.

Articles 2 and 3. Right to organize and free exercise of trade union activities. In its previous comments, the Committee noted the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) on allegations of restrictions on the right to organize, and especially the right of trade unions to organize their management and training activities, and on the difficulties encountered in establishing trade unions. The Committee notes the observations of the ITUC, deploring the fact that the Government’s current legislation does not fully guarantee the right to organize, and that the legal provisions on elections of staff representatives are ineffective. Recalling the Government’s responsibility to ensure that the rights provided for in the Convention are respected both in law and in practice, the Committee urges the Government to provide the information due on the measures taken to ensure the effective application of sections 136 et seq. of the Labour Code, as well as Decree No. 2011-490 and its implementing order No. 28968-2011 providing for the promotion of trade union rights in the country.

Restrictions on trade union activities in the maritime sector. The Committee previously requested the Government to provide information on the initiatives taken to put an end to the conflict between the General Maritime Union of Madagascar (SYGMMA) and an enterprise in the port sector (see Case No. 3275 of the Committee on Freedom of Association, which concerns SYGMMA and for which replies have long been awaited from the Government). The Committee urges the Government to provide any relevant information on the possibility for SYGMMA to freely exercise its activities in the port sector.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously requested the Government to provide specific information on the factors that have prevented the holding of elections for staff representatives since 2015, and to provide its comments on the serious allegations of the General Confederation of Workers’ Unions of Madagascar (FISEMA) concerning the unilateral changing of the names of its representatives by the Government. The Committee takes note of the observations of the Randrana Sendikaly Alliance that the Ministry of Labour: (i) refused to validate the staff representative election results in favour of the Alliance in an enterprise in the sugar industry; (ii) encourages candidates who are not members of trade union organizations to occupy trade union posts; and (iii) unilaterally appointed new administrators in the National Social Welfare Fund. The Committee requests the Government to respond to these allegations and to provide specific information on any issues relating to the holding of elections for staff representatives.

Compulsory arbitration. The Committee requested the Government to take the necessary measures to amend sections 220, 225 and 228 of the Labour Code, which provide that if mediation fails, the collective dispute is referred by the Ministry of Labour and Social Legislation to a process of arbitration and that the arbitral award ends the dispute and the strike, and for the possibility of requisitioning striking employees in the event of disruption of public order. The Committee is once again bound to repeat its previous request and urges the Government to take the necessary measures to amend articles 220, 225 and 228 of the Labour Code, and to communicate any new developments in this regard.