Night Work Convention, 1990 (No. 171) - Madagascar (RATIFICATION: 2008)

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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 132 (holidays with pay) and 171 (night work) 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.Paid leave

Article 5(2) of Convention No. 132. Minimum period of service for holiday entitlement. Further to its previous comments, the Committee notes the Government’s reaffirmation in its report that in practice workers can avail themselves of their entitlement to 2.5 days of holiday for each month of service even before their total service amounts to the minimum period of 12 months set out in section 88(1) of the Labour Code. However, the Government indicates that at present no measures have been taken to bring the current legislation into conformity with Article 5(2) of the Convention. While taking due note of this information, the Committee requests the Government to indicate whether measures have been taken or are envisaged to bring the national legislation into line with the practice that is generally followed.

B.Night work

Article 3 of Convention No. 171. Specific measures for night workers. The Committee notes that section 85 of the Labour Code provides that women may not be employed at night in industrial establishments, with the exception of establishments in which only the members of the same family are employed. The Committee recalls that protective measures applicable to women’s employment at night which go beyond maternity protection and are based on stereotyped perceptions regarding women’s professional abilities and role in society violate the principle of equality of opportunity and treatment between men and women (2018 General Survey concerning working-time instruments, paragraph 545). The Committee requests the Government to review the national legislation in light of this principle, in consultation with the social partners. Moreover, noting that the country is still bound by the Night Work (Women) Convention (Revised), 1948 (No. 89), and that the window for the denunciation of that Convention will be open from 27 February 2031 to 27 February 2032, the Committee encourages the Government to envisage its denunciation at the appropriate time.

Articles 4 and 5. Health assessment. Suitable first-aid facilities. Further to its previous comments, the Committee notes the Government’s indications that sections 5 to 12 of Decree No. 2003-1162 of 17 December 2003 on the organization of enterprise medicine, as amended by Decree No. 2011-631 of 11 October 2011, provide that: (i) the systematic examinations that employers are required to have carried out include the examination upon recruitment, regular medical examinations, examinations upon taking up work again following an absence due to occupational disease, and the examinations envisaged for women and children; (ii) in case of necessity, the physician may call for additional examinations upon recruitment, as well as regular examinations and systematic testing for occupational diseases; (iii) the care provided by occupational health services, including health assessments for workers, are free of charge; and (iv) the medical file for workers created following the recruitment examination is confidential. It also notes that the Decree provides for the availability of first-aid facilities, including the presence of nursing personnel responsible for the provision of elementary care and first aid in the event of accidents (section 33); the availability of first-aid equipment (section 41); the evacuation of workers (section 16); and the training in first aid of at least one in every 50 workers (section 5(b)). The Committee notes this information, which replies to the points raised previously.

Article 6. Workers declared unfit for night work. Further to its previous comments, the Committee notes the Government’s reference to sections 8 and 10 of Decree No. 2003-1162, which provides that: (i) in the event of incapacity to perform the envisaged work, noted during the health assessment prior to assignment, the enterprise physician shall inform in writing the person concerned and the employer concerning the types of work compatible with the worker’s physical and/or intellectual capacity; and (ii) in the event of return to work following an absence due to occupational disease, the physician shall indicate the capacity of the worker to return to the previous work or the need for functional rehabilitation and a change of assignment. The Government indicates that, in practice, the employer has to take into account the decision of the occupational physician when it is indicated in a medical certificate that a worker is declared unfit for night work for medical reasons. Nevertheless, the Committee observes that the legislation does not appear to contain provisions under which, when a transfer to a similar job is not practicable, workers shall be granted the same benefits as other workers who are unable to work or to secure employment, and that a night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that full effect is given to this provision of the Convention.

Articles 8 and 9. Compensation for night workers. Social services. Transport. The Committee notes that in its observations the FISEMARE refers to cases of the non-payment of the wage supplement for night work. The Committee also notes that the FISEMA and the SEKRIMA call for the adoption of support measures to ensure the transport and safety of night workers when commuting, as well as breaks, and call for regulations to be adopted to improve the effect given to the Decree that is in force. The Committee requests the Government to provide its comments in this respect.

Article 10. Consultation of workers’ representatives. The Committee notes that, in response to its previous comment, the Government has not provided any further information. The Committee requests the Government to indicate the manner in which it is ensured that, before introducing work schedules requiring the services of night workers, the employer consults the workers’ representatives concerned on the details of such schedules and the forms of the organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services that are required, as required by this Article of the Convention.

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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 6 of the Convention. Health assessment – Workers declared unfit for night work. Further to its previous comment, in which it pointed out the absence of any legislative text giving effect to Articles 4 and 6 of the Convention, the Committee notes that the Government refers in its latest report to section 259 of the Labour Code concerning measures relating to cleanliness, occupational safety and health, comfort in the workplace, and preventive and remedial measures. The Government also indicates that in practice, where a night worker, for reasons of health, is certified as unfit for night work, the decision taken by the employer is to the benefit of the worker. However, the Committee recalls that Article 4 of the Convention provides that night workers shall have the right to undergo a health assessment without charge: before taking up an assignment as a night worker; at regular intervals during such an assignment; and if they experience health problems during such an assignment, which are caused by night work. Moreover, Article 6 stipulates that night workers certified as unfit for night work shall be transferred to a similar job for which they are fit or, if such a transfer is not practicable, they shall be granted the same benefits as other workers who are unable to work. The Committee therefore requests the Government once again to take steps, once the situation in the country allows it, to adopt the necessary laws, regulations or other texts to give full effect to these Articles of the Convention.

Articles 5, 7, 9 and 10. Suitable first-aid facilities – Maternity protection – Social services – Consultation of workers’ representatives. The Committee notes the observations received on 2 September 2013 from the General Confederation of Workers’ Unions of Madagascar (FISEMA), which were forwarded to the Government on 19 September 2013. FISEMA indicates that, further to the ratification of the Convention by the Government, no major amendment relating to night work has been brought into the national legislation. A draft decree concerning the conditions of night work, submitted to the National Labour Council in March 2013, is currently under examination but contains various gaps in relation to the provisions of the Convention, particularly as regards suitable first-aid facilities (Article 5), social services (Article 9) and consultation of workers’ representatives (Article 10). In its last report, as regards first-aid facilities and social services, the Government refers to Decree No. 2003 1162 concerning occupational medicine; Decree No. 2007-007 establishing employer arrangements for providing transport for night workers and ensuring their safety; and section 125 of the Labour Code concerning workplace leisure areas. The Government also indicates that the workers’ representatives concerned are consulted with regard to the organization of work schedules, and that staff delegates may submit suggestions and study together with the employer any measures relating to the organization and performance of the enterprise and the provisions of the company regulations. The Committee hopes that the Government, in the context of the drawing up of a decree concerning the conditions of night work, will ensure the full and effective application of the abovementioned Articles of the Convention.

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Articles 4 and 6 of the Convention. Health assessment – Workers declared unfit for night work. Further to its previous comment, in which it pointed out the absence of any legislative text giving effect to Articles 4 and 6 of the Convention, the Committee notes that the Government refers in its latest report to section 259 of the Labour Code concerning measures relating to cleanliness, occupational safety and health, comfort in the workplace, and preventive and remedial measures. The Government also indicates that in practice, where a night worker, for reasons of health, is certified as unfit for night work, the decision taken by the employer is to the benefit of the worker. However, the Committee recalls that Article 4 of the Convention provides that night workers shall have the right to undergo a health assessment without charge: before taking up an assignment as a night worker; at regular intervals during such an assignment; and if they experience health problems during such an assignment, which are caused by night work. Moreover, Article 6 stipulates that night workers certified as unfit for night work shall be transferred to a similar job for which they are fit or, if such a transfer is not practicable, they shall be granted the same benefits as other workers who are unable to work. The Committee therefore requests the Government once again to take steps, once the situation in the country allows it, to adopt the necessary laws, regulations or other texts to give full effect to these Articles of the Convention.

Articles 5, 7, 9 and 10. Suitable first-aid facilities – Maternity protection – Social services – Consultation of workers’ representatives. The Committee notes the observations received on 2 September 2013 from the General Confederation of Workers’ Unions of Madagascar (FISEMA), which were forwarded to the Government on 19 September 2013. FISEMA indicates that, further to the ratification of the Convention by the Government, no major amendment relating to night work has been brought into the national legislation. A draft decree concerning the conditions of night work, submitted to the National Labour Council in March 2013, is currently under examination but contains various gaps in relation to the provisions of the Convention, particularly as regards suitable first-aid facilities (Article 5), social services (Article 9) and consultation of workers’ representatives (Article 10). In its last report, as regards first-aid facilities and social services, the Government refers to Decree No. 2003 1162 concerning occupational medicine; Decree No. 2007-007 establishing employer arrangements for providing transport for night workers and ensuring their safety; and section 125 of the Labour Code concerning workplace leisure areas. The Government also indicates that the workers’ representatives concerned are consulted with regard to the organization of work schedules, and that staff delegates may submit suggestions and study together with the employer any measures relating to the organization and performance of the enterprise and the provisions of the company regulations. The Committee hopes that the Government, in the context of the drawing up of a decree concerning the conditions of night work, will ensure the full and effective application of the abovementioned Articles of the Convention.

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Article 3(1) and (2) of the Convention. Minimum protection measures for night workers. The Committee notes the indications in the Government’s first report to the effect that it does not provide for any specific measures other than those laid down by Articles 4 to 10 of the Convention. The Committee notes that Decree No. 68-172 of 1968 issuing regulations on overtime and higher rates of pay for work at night, on Sundays and on public holidays, as amended and supplemented by Decrees Nos 72-226 of 1972 and 2007-007 of 2007 establishing obligations for the employer to provide transport for and ensure the safety of night workers, appears to be the only legislative text establishing specific measures for the protection of night workers. The Committee reminds the Government that the Convention calls for special measures to protect the health of night workers and assist them in meeting their family and social responsibilities, and specific measures must therefore be taken to give effect to the provisions of Article 6 (workers deemed unfit for night work), Article 7 (maternity protection), Article 9 (social services) and Article 10 (consultation of workers’ representatives) of the Convention, which set out a number of measures that are necessary for ensuring a minimum of protection for night workers. The measures to be taken may be introduced gradually but they remain compulsory and must be implemented. The Committee therefore requests the Government to supply further information on this matter.

Article 4. Health assessment. The Committee notes the Government’s statement that Malagasy legislation does not contain specific provisions concerning the health of night workers. However, it refers to section 5 of Decree No. 2003-1162 concerning occupational medicine, which provides for periodic medical examinations. The Committee requests the Government to take all necessary steps to give full effect to this Article of the Convention.

Article 5. Suitable first-aid facilities. The Committee notes that, under section 33 of Decree No. 2003-1162 concerning occupational medicine, first-aid measures exist with regard to accidents in the workplace, for both day and night workers. Section 41 provides that every establishment that belongs to an inter-company medical service must have the following equipment on the premises: a first-aid kit where there are less than 20 staff; a stretcher with blanket, a first-aid kit and a bed with two blankets where there are between 100 and 499 staff; a treatment room with a bed for medical examination or rest and a stretcher with a blanket where there are 500 staff or more. The Committee requests the Government to consider the possibility of introducing arrangements whereby night workers, where necessary, can be taken to a place where appropriate treatment can be provided, as required by this Article of the Convention.

Article 6. Workers deemed unfit for night work. The Committee notes the Government’s statement that there is no legislation that gives effect to this Article of the Convention. However, the Government adds that in practice night workers who, for health reasons, are certified as unfit for night work are transferred, whenever practicable, to similar jobs for which they are fit. The Committee requests the Government to take the necessary steps to give full effect to the provisions of this Article of the Convention.

Article 7(1)–(3). Maternity protection. The Committee notes that section 85(4) of the Labour Code provides that on no account shall women who are medically certified as pregnant be employed on night work during a period of up to eight weeks following childbirth. However, section 5.6 of Act No. 2007-037 of 14 January 2008 concerning export processing zones and enterprises in Madagascar provides that the provisions of the Labour Code concerning night work for women, in particular section 85 of the Labour Code or any other legislative or regulatory provision replacing it, are not applicable to export processing enterprises. The Committee reminds the Government that this Article of the Convention requires an alternative to night work (for example, similar or equivalent day work) to be available to women workers for a period of at least 16 weeks, including at least eight weeks before the expected date of childbirth (eight weeks under the terms of section 85(5)), or for longer periods on production of a medical certificate stating that it is necessary for the health of the mother or child. The Committee requests the Government to indicate whether the legislation provides, in addition to a transfer to day work, for a possible extension of maternity leave and also provides for women workers, during the 16-week period, to be protected against wrongful dismissal, to maintain their level of income and to retain their benefits regarding status, seniority and access to promotion.

Article 9. Social services. The Committee notes the information in the Government’s report to the effect that there are transport and safety provisions for night workers. Section 3 of Decree No. 2007-007 of 9 January 2007 provides that transport must be provided free of charge by the employer. Section 4 of the Decree states that in order to ensure the safety of workers against any form of aggression or accident, whether at the workplace or on the way to work, suitable facilities must be provided by the employer in accordance with the arrangements to be fixed by agreement between the parties, taking account of local conditions. Furthermore, the Committee recalls that the term “social services” as defined by the Convention seeks to cover a wide variety of measures, including transport. The Committee wishes to draw the Government’s attention to Paragraphs 13–18 of the Night Work Recommendation, 1990 (No. 178), which give guidance on other measures that might be considered appropriate for night workers, such as suitable rest facilities, flexible schedules for crèches and adaptable cultural, sporting or recreational activities. The Committee therefore requests the Government to indicate any specific steps taken or contemplated to give full effect to this provision of the Convention.

Article 10. Consultation of workers’ representatives. The Committee notes that the Government refers to section 158 of the Labour Code, which gives general indications concerning the tasks of staff delegates, such as presenting individual or collective demands to the employers, bringing any complaints or demands before the labour inspectorate, and monitoring the implementation of regulations relating to occupational safety and health and social protection. However, these are general provisions which say nothing regarding the obligation to consult representatives of the workers concerned regarding work schedules requiring the services of night workers. The Committee wishes to remind the Government that that this Article of the Convention calls for consultations with the workers’ representatives before introducing work schedules requiring the services of night workers, and regular consultations in establishments employing night workers, particularly to ensure that all necessary regulations relating to occupational safety and health and social services are given sufficient consideration. The Committee requests the Government to indicate the measures taken or contemplated to give full effect to this Article of the Convention.

Article 11 and Part V of the report form. Application in practice. The Committee notes the Government’s indication that, given the current political and social context in Madagascar, it is not yet possible to take any decision concerning the application of the provisions of the Convention. The Committee requests the Government to send the Office a copy of any new legislation or collective agreement governing night work, in accordance with the provisions of the Convention.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working-Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part-time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.