Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Protection of Workers' Claims (Employer's Insolvency) Convention, 1992 (No. 173) - Madagascar (Ratification: 1998)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes with interest the information communicated by the Government in its first report and requests it to supply details on the following points.

Article 1(3) of the Convention. The Committee notes that section 77 of the Labour Code provides that workers’ and apprentices’ claims in regard to wages take priority over the debtor’s movable and immovable property in the conditions laid down by the texts in force. The Committee requests the Government to specify which texts lay down the conditions provided under section 77 of the Labour Code and to supply a copy of them to the Office.

Article 6. The Committee notes from the Government’s report that workers’ privilege shall cover, first, their claims for wages relating to a prescribed period, for which the period prior to the insolvency or prior to termination of the employment is not stated. It notes, however, that under section 83 of the Labour Code, remuneration of all kinds due to employees for the last 60 days of employment must be paid to them regardless of the existence of any other privileged claims, up to a monthly level fixed by regulation. Recalling that Article 6 of the Convention provides that the privilege for wages due must cover a prescribed period, which shall not be less than three months, prior to the insolvency or prior to the termination of the employment, the Committee requests the Government to provide details concerning the method for determining the abovementioned period, indicating for example whether other legislative or regulatory provisions are applicable. The Committee notes that, according to the Government, workers’ privilege covers, next, their claims for compensation for paid leave not taken, pro rata for the number of days remaining at the time of termination of the employment relationship. It requests the Government to indicate how the period covered by the privilege is determined, by indicating any applicable legislative or regulatory provisions and to provide copies. The Committee notes from the Government’s report that workers’ privilege covers, finally, compensation for notice, calculated on the basis of occupational category and years of service without exceeding a total of six months, and compensation for dismissal on the basis of ten days per complete year of service, and restricted to six months of salary in the event of termination of the employment contract on economic grounds. The Committee therefore requests the Government to indicate the laws or regulations which include these provisions and to supply it with copies. It also requests the Government to indicate whether the compensation for paid leave is the only remunerated absence covered by the privilege or whether other types of absence, such as sick leave or maternity leave, are also covered by other provisions.

Article 7(1). The Committee notes that section 83 of the Labour Code provides that in the event of winding up by decision of a court or of liquidation of assets, remuneration of all kinds due to employees and apprentices for the last 60 days of employment or apprenticeship must be paid, after deduction of any amounts already received, irrespective of the existence of any other privileged claim, up to a monthly level identical for all categories of beneficiaries and that this level is fixed by regulation. It also notes that the Government considers the amount provided for in the last sub-clause of section 83 of the Labour Code as a socially acceptable level. The Committee therefore requests the Government to indicate the level that has been fixed and to supply a copy of the regulation that has been adopted for the purpose of applying section 83 of the Labour Code.

Article 7(2). The Committee requests the Government to indicate whether measures have been taken to adjust the prescribed amount for privilege of workers’ claims so as to maintain its value, in accordance with this provision of the Convention.

Article 8. The Committee notes the information to the effect that workers’ claims are currently placed at a lower rank of privilege than those of the State and social security. It notes that section 75(2) of the current draft revision of the Labour Code which has already received the agreement of the social partners provides that workers’ claims have a higher rank of privilege than state and social security claims. The Committee therefore trusts that the draft revised Labour Code will shortly be adopted and requests the Government to supply information on this matter in its next report, along with a copy of the new Labour Code.

The Committee requests the Government to inform the Office, in accordance with Part IV of the report form, as to the manner in which the Convention is applied in practice.