Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

Noting the draft Labour Code, the Committee considers that it would be useful to draw the Government’s attention to the following points so that they can be taken into account during the next stages of the process of preparing and adopting the Code.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing without previous authorization. In its previous comments, the Committee noted that sections 7 and 11 of the Labour Code that is currently in force provided that the constitution, organization and operation of trade unions would be determined by a decree and that an order would establish the procedures for the exercise of the right to organize. The Committee requested the Government to provide it with copies of the texts governing the procedures for the exercise of the right to organize. The Committee notes the Government’s indication that the work on revising Act No. 94-029 of 25 August 1995 issuing the Labour Code has recommenced following its suspension. It is in this context that the National Employment Council, a tripartite body for dialogue, concertation and negotiation between the social partners, has been established. The Government will provide the Committee in due time with the texts governing the procedures for the exercise of the right to organize.

The Committee takes due note of this information. It notes that the new draft of the Labour Code (section 109), in the same way as the current Code, affirms the right of workers and employers to establish organizations of their own choosing without previous authorization. It also notes that section 239 of the draft text provides that the Labour Code will be implemented by decrees and orders issued after consultation with the National Employment Council, even where such texts are not explicitly envisaged by its provisions. The Committee trusts that these implementing texts will provide effective guarantees of the right of workers to establish occupational organizations without previous authorization, in accordance with Article 2. It requests the Government to keep it informed of the process of the adoption of the new Labour Code and to provide the related texts, including draft implementing texts.

Article 3. Right of workers’ organizations to organize their activities without interference by the public authorities. The Committee notes that section 109 of the draft Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level "shall be established through the elements provided by the organizations concerned and the labour administration". The Committee also notes that, in the context of the examination of Case No. 2132 by the Committee on Freedom of Association, the Government referred to the intervention of the labour administration in determining the representativeness of occupational organizations.

The Committee considers that, to prevent any interference by the public authorities in the determination of the representativeness of occupational organizations, such determination must be made by an independent body which has the confidence of the parties on the basis of a procedure affording every guarantee of impartiality. The Committee requests the Government to indicate whether measures have been envisaged for this purpose, particularly in the texts implementing the Labour Code, and to indicate their content.

The Committee notes that under sections 191 and 196 of the draft Labour Code, in the event of the failure of mediation, the collective dispute shall be submitted by the Ministry responsible for labour and labour legislation either to a contractual labour arbitration procedure, in accordance with the collective agreement covering the parties, or to the arbitration procedure of the competent labour tribunal. The arbitration award is final and without appeal. It brings an end to the dispute and to any strike which may have been called in the meantime.

The Committee recalls that recourse to arbitration to bring to an end a collective dispute is only acceptable if it is at the request of both parties and/or in the event of a strike in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. Consequently, with the exception of cases in which the arbitration procedure is derived from an agreement between the two parties, the Committee requests the Government to amend the draft Labour Code so as to guarantee in full the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities, particularly with regard to the exercise of the right to strike in sectors other than essential services, in accordance with Article 3.

Finally, the Committee notes that, by virtue of section 231 of the draft Labour Code, the "instigators and leaders of unlawful strikes" shall be liable to a fine and/or a prison sentence. The Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and that such sanctions should not be disproportionate to the seriousness of the violations (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 177 and 178). The Committee therefore requests the Government to refrain in all circumstances from having recourse to sentences of imprisonment against persons who organize or participate in a peaceful strike.