Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Migration for Employment Convention (Revised), 1949 (No. 97) - Madagascar (Ratification: 2001)

The Committee notes the information in the Government’s second report on the Convention.

Article 1 of the Convention. Provision of information. The Committee notes the statistics on migration from and to the country for 2006 and the Government’s statement that the suspension of emigration from Madagascar has been lifted since 2006. The Government also indicates that no bilateral agreement has yet been concluded as the country is first concentrating on regulating private placement agencies and adopting legislation in this regard. The Committee asks the Government to continue to provide information on any new developments with regard to its national immigration and emigration policies and regulations, as well as any bilateral agreements concluded.

Article 3 and Annexes I and II. The Committee notes from the Government’s report that Decree No. 2005/396 of 28 June 2005 fixing the conditions and modalities of private placement agencies and the modalities for their licensing and withdrawal gives effect to the provisions of the Convention. However, the Government further indicates that no measures have yet been taken to protect migrant workers, apart from the supervision of their contract of employment before departure, from misleading propaganda. The Committee asks the Government to supply a copy of Decree No. 2005/396 of 2005 and hopes that the Government will take effective steps to prevent and punish the use of misleading propaganda concerning the migration process. These measures could include any cooperation in practice with the governments of other countries in compliance with Article 3(2) of the Convention.

Articles 2 and 4; Annex I, Article 6; Annex II, Article 7. Information and assistance. The Committee notes that the Service for Migration Management (SGM) is responsible for informing and assisting those requesting a work permit with respect to the administrative procedures to follow. The Committee asks the Government to provide additional information on any other measures taken or envisaged to assist migrant workers with respect to Articles 2 and 4 of the Convention, as well as paragraphs (a)–(c) of Article 6 of Annex I and Article 7 of Annex II, in particular with respect to their conditions of employment.

Article 6. Equality of treatment. The Committee recalls the provisions of the Labour Code (sections 5, 53 and 261), 2004, regarding non-discrimination and notes that all workers, national or foreign, whose contract of employment is carried out in Madagascar are covered by the provisions of the Labour Code. It also notes the Government’s statement that equality of treatment exists with regard to employment taxes and access to justice and that foreign employers and nationals are obliged to affiliate to the National Fund for Social Welfare. The Committee asks the Government to provide information on the following points:

(a)   the practical measures taken or envisaged to ensure the effective application of the abovementioned legislative provisions as well as on any violations detected by the bodies entrusted with monitoring respect for the Convention;

(b)   the relevant texts concerning the policy and legislation on equal treatment between foreign and national workers in respect of social security, employment taxes, dues or contributions, as well as access to legal proceedings; and

(c)   the measures adopted or envisaged to guarantee that female migrant workers are treated on a footing of equality with male workers, whether or not foreign, in respect of the areas covered in Article 6, paragraph 1(a)–(d).

Article 8. Right of residence of permanent migrant workers. The Committee notes the Government’s statement that immigrant workers can stay in the country until the expiration of their residence permit, which is delivered in function of their contract of employment. The Committee wishes to point out that security of residence of permanent workers is one of the most important provisions of the Convention. Where this right is not effectively applied, permanent resident migrants find themselves living under the constant threat of repatriation. The Committee therefore asks the Government to confirm that the residency permit of migrant workers admitted on a permanent basis cannot be cancelled in the case of ill heath or injury. Please also specify the circumstances under which permanent residence in Madagascar is being obtained and may be cancelled.

Article 10. Bilateral agreements. The Committee notes from the Government’s report that discussions regarding the conclusion of bilateral and multilateral agreements are ongoing at inter-ministerial level. The Committee asks the Government to provide information on any developments in this regard.

Article 11. Definition of migrant workers. The Committee recalls section 41 of the Labour Code defining “displaced worker” as those who, in order to accomplish the work agreed upon, are obliged to settle “for a long-term period” in a workplace other than their usual residence or outside their country of origin. The Committee notes that the Government indicates that in practice “displaced workers” are considered to be migrant workers only when they are at a workplace other than their usual residence for at least six months. While noting the explanations of the Government, the Committee recalls that Article 11 only excludes frontier workers, seafarers and short-term liberal professions and artists from its application. The Committee therefore asks the Government to provide information enabling the Committee to determine whether or not “displaced workers” are unduly excluded from the protection provided by the Convention.

Annex I, Article 5; and Annex II, Article 6. Supervision of contracts of employment. The Committee notes the Government’s statement that the contracts of employment of migrant workers are subject to a system of supervision. It notes that the contracts of migrant workers are being verified by the Economic Development Board of Madagascar (EDBM) and those of volunteer workers and emigrants, who are not wage workers, by the Directorate of Employment and Vocational Training. The Committee asks the Government to provide information on the activities of the EDBM and the Directorate of Employment and Vocational Training with respect to the enforcement of this system of supervision in accordance with Article 5 of Annex I and Article 6 of Annex II of the Convention.

Annex II. The Committee notes the Government’s statement that at present there is no national law giving effect to Articles 9–11 of Annex II of the Convention. The Committee encourages the Government to take steps to ensure that the cost of return shall not fall upon a migrant worker who has failed to secure the employment for which he or she has been recruited, for reasons not attributed to him or her, and to take appropriate measures to provide suitable alternative employment, in accordance with Articles 9–11 of Annex II. Please provide information on any developments in this regard.

Part V of the report form. Practical application. The Committee notes the statistics provided by the Government concerning the employment of nationals abroad and migrant workers in Madagascar. It encourages the Government to continue to provide such statistics, where possible disaggregated by sex and nationality. Please also indicate any practical difficulties encountered in the application of the Convention, as required by Part V of the report form, and indicate whether ordinary or other courts of law have handed down decisions on matters of principle concerned with the application of the Convention. If so, please supply the text of these decisions.