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

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

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which reads as follows:

1. Right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. The Committee recalls that seafarers are excluded from the scope of the 1993 Labour Code (article 1). However, it noted the information provided by the Government to the effect that Act No. 99.028 of 3 February 1999 revising the Maritime Code referred to "seafarers’ trade unions" in section 3.3.02 and that the reference to "seafarers’ trade unions" in this section confirmed the freedom of association and exercise of trade union rights by seafarers, in accordance with article 31 of the Constitution of 8 April 1998, which provided that "The State recognizes the right of every worker to defend his interests through union activity and in particular through the freedom to form a union." The Committee had already noted that the national legislation granted seafarers certain rights related to the right to organize (the right to conclude collective agreements to determine their wages, section 3.05.03 of the Maritime Code, as amended in 1966; procedures for the settlement of collective disputes and the right to strike after an arbitration award had been contested; Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the merchant marine and its implementing Order No. 3012-DGTOP/SSM of 1970). However, the Committee considers that the legislation should contain specific provisions granting seafarers the right to organize. It therefore requests the Government to take the necessary measures explicitly to guarantee seafarers the right to establish and join trade unions. The Committee also requests the Government to provide a copy in the near future of Act No. 99.028 of 3 February 1999 revising the Maritime Code.

2. Right of workers to establish organizations without previous authorization. The Committee noted the information provided in the Government’s last report to the effect that a revision of Act No. 94.029 of 25 August 1995 issuing the Labour Code was being completed. The Government stated that it would provide copies of any texts relating to the procedures for the establishment, organization and functioning of trade unions once they had been published, after the enactment of the revised Code. The Committee trusts that, in accordance with the requirements of Article 2 of the Convention, all workers, including seafarers, will be able to establish trade union organizations without previous authorization once they have deposited their statutes with the competent authorities. The Committee also requests the Government to provide copies of texts governing procedures for the exercise of the right to organize.

3. Requisitioning of persons. The Committee had noted that the conditions giving rise to the right to requisition, as set out in section 21 of Act No. 69-15 of 15 December 1969 respecting the requisition of persons and goods, which allowed the requisitioning of workers where a sector of national life or a part of the population was endangered, were too broad to be compatible with the principles of freedom of association. It had thereafter taken due note of the proposals made by the Government to amend section 21. The Committee had nevertheless noted that these amendments included certain services, such as garbage collection, radio and television broadcasting, post and telecommunications, banking, whose interruption does not endanger the life, personal safety or health of the population. In the view of the Committee, recourse to requisitioning is to be avoided except where, in particularly serious circumstances, essential services have to be maintained. Requisitioning may be justified by the need to ensure the operation of essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee took due note of the information provided in the Government’s last report to the effect that it would transmit the Committee’s comments to the ministry concerned so that it could take the necessary measures with a view to improving the application of the Convention. The Committee requests the Government to keep it informed of the measures adopted in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.