Observation (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)

The Committee notes the Government’s report. It also notes that a draft text to revise the Labour Code has been examined by the social partners in the National Employment Council. The Committee also takes due note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2132 (see 331st Report, paragraphs 584-592, and 332nd Report, paragraphs 98-104).

Article 2 of the Convention. Right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. Section 1 of the Labour Code that is currently in force excludes from its scope workers who are covered by the Maritime Code. In its previous comments, the Committee noted that Act No. 99.028 of 3 February 1999, issuing the revised Maritime Code, refers to "seafarers’ trade unions" (section 3.3.02). While also noting that certain rights relating to the right to organize were granted to seafarers, the Committee considered that the legislation should contain specific provisions granting seafarers the right to organize. The Government indicates that the Committee’s observations will be transmitted to the departments concerned and that all relevant information will be forwarded to the Committee in due time.

The Committee notes that the draft Labour Code maintains the exclusion from its scope of workers covered by the Maritime Code (that is, seafarers and other crew members). The Committee also recalls that the current version of the Maritime Code does not contain sufficiently clear and precise provisions guaranteeing the workers to whom it applies the right to establish and join trade unions and the related rights. The Committee therefore requests the Government to take the necessary measures so that the Maritime Code (and even the Labour Code) affords the workers to whom it is applicable effective recognition of their right to organize on an equal footing with other workers whose right to organize is currently guaranteed by the Labour Code. The Committee also requests the Government to provide further information of a practical nature on seafarers’ trade unions, including the number of such trade unions and of their respective members.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities in full freedom without interference by the public authorities. In its previous comments, the Committee noted that the conditions giving rise to the right of requisitioning, as set out in sections 20 and 21 of Act No. 69-15 of 15 December 1969 respecting the requisitioning of persons and goods, are too broad to be compatible with the Convention; the Committee referred in this respect to the possibility of requisitioning workers in the event of the proclamation of a state of national necessity or a threat to a sector of national life or a part of the population. The Committee recalled that requisitioning is to be avoided, except for the maintenance of essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis. The Committee notes the Government’s indication that it will report any textual changes which improve the application of the Convention.

The Committee also notes with interest that section 199 of the new draft Labour Code provides that the right to strike "may only be limited by requisitioning in the event of an acute crisis or of the strike endangering the life, safety or health of the whole or part of the population". The Committee therefore hopes that Act No. 69-15 of 15 December 1969 will be formally amended to take into account the new provisions of the Labour Code and requests the Government to keep it informed in this respect.

The Committee is also addressing a request directly to the Government concerning certain provisions of the draft Labour Code.