Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

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 contains no specific replies to the points it raised in its previous comments on the 2003 draft of the new Labour Code. The Committee hopes that the matters raised in its previous comments have been taken into account in the process of drafting and adopting the Code.

Article 2 of the Convention. The Committee noted that section 109 of the 2003 draft of the new Labour Code reaffirms the right of workers and employers to form organizations of their choosing without prior authorization. The Committee notes, however, that section 239 of the draft provides that the Labour Code will be implemented by decrees and orders issued after consultation with the National Employment Council even where the Code makes no express provision for such instruments. The Committee trusts that these implementing texts will provide effective guarantees of the right of workers to establish occupational organizations without prior authorization, in accordance with Article 2, and requests the Government to send copies of the relevant texts.

Article 3. 1. The Committee noted 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 points out that, in order to prevent interference by the public authorities in decisions as to whether occupational organizations are representative, such decisions should be taken by an independent body which has the confidence of the parties through a procedure that affords every guarantee of impartiality. The Committee hopes that the Government will adopt measures to this end, particularly in the texts implementing the Labour Code.

2. The Committee noted that under sections 191 and 196 of the draft Labour Code, if mediation fails, the collective dispute is submitted by the Ministry of Labour and Labour Law either to a contractual 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 puts an end to the dispute and to any strike which may have been called in the meantime.

The Committee recalls that recourse to arbitration in order to end a collective dispute is acceptable only if it is at the request of both parties and/or in the event of a strike in essential services in the strict sense, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Consequently, except where the arbitration procedure derives from an agreement between the two parties, the Committee hopes that the Government has taken the necessary steps to guarantee fully the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities, particularly the exercise of the right to strike in sectors other than essential services, in accordance with Article 3.

3. The Committee noted that under section 231 of the draft Labour Code, "instigators and leaders of unlawful strikes" are liable to a fine and/or a prison sentence. The Committee recalls that sanctions for strike action should be possible only where the strike ban is consistent with the principles of freedom of association, and that such sanctions should not be disproportionate to the seriousness of the violations. It accordingly hopes that the Government has excluded in all circumstances recourse to sentences of imprisonment for persons who organize or participate in a peaceful strike.