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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Madagascar (Ratification: 1998)

The Committee notes the comments made by the International Trade Union Confederation (ITUC), dated 29 August 2008, which refer to legislative matters already raised by the Committee in its previous comments, to the fact that trade union rights do not apply to workers in essential services, which include the radio and television broadcasting sectors and the banking sector, and to the absence of social dialogue in the mining sector and export processing zones. The Committee requests the Government to provide its comments in reply to the observations of the ITUC.

Article 4 of the Convention. Determining representativeness. In its previous comments, referring to section 183 of the Labour Code which establishes a number of criteria for determining the representativeness of organizations of employers and workers, the Committee noted the Government’s indication that a draft decree on trade unions and representativeness had been sent to the National Labour Council for debate. In its report, the Government indicates that the draft could not be adopted due to a lack of unanimous support and that discussions are still being held on the matter. The Committee requests the Government to indicate in its next report any developments in this regard and to provide a copy of any text adopted.

Promotion of collective bargaining. Referring to the provisions of the Labour Code on collective bargaining, the Committee previously noted that the Labour Code protects, above all, collective bargaining in enterprises with more than 50 workers. It asked the Government to promote collective bargaining in small and medium-sized enterprises. The Government indicates in its report that no provision actually mentions the compulsory nature of bargaining for enterprises with fewer than 50 workers, but that such bargaining should not give rise to problems since it is in the workers’ interest. The Committee requests the Government to provide information on the measures adopted to promote collective bargaining in enterprises employing fewer than 50 workers as well as on the collective agreements concluded in these enterprises.

Article 6. Collective bargaining for seafarers and public servants. In its previous comments, the Committee noted that the Labour Code excludes public servants and maritime workers from its scope and asked the Government once again to take the necessary steps to ensure the adoption of specific provisions on the collective bargaining rights of seafarers governed by the Maritime Code and of public servants not engaged in the administration of the State. The Committee notes that the Government indicates in its report that the Maritime Code of 2000 is in the process of being revised, that a draft new Code was presented in August 2008 at a workshop, and that this draft includes new provisions guaranteeing the right of seafarers to establish and join trade unions and all related rights. The Committee notes this information with interest and trusts that the draft new Maritime Code will provide that the rights guaranteed by the Convention are extended to seafarers. The Committee requests the Government to provide a copy of the new Maritime Code as soon as it is adopted.

With regard to the right of collective bargaining of public servants not engaged in the administration of the State, the Government indicates that these persons are governed by Act No. 94-025 of 17 November 1994 on the general conditions of service of contractual public employees, and also by Decrees Nos 64‑213 and 64-214 of 27 May 1964, except for those provisions which have been repealed by the Act of 1994. These public servants are connected to the public bodies which employ them only by a precarious contractual link which may be revoked in circumstances arising from the labour regulations and from the provisions of the Act. The general labour regulations therefore apply by extension where other texts concerning these persons are not applied. In any case, the Committee holds the view that the situation as described by the Government is likely to create uncertainty with regard to the legal framework applicable and may therefore hinder the development of collective bargaining within the meaning of the Convention and other trade union activities. The Committee therefore requests the Government to adopt, without delay, formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. The Committee trusts that the Government will take the necessary steps in the near future to ensure that the guarantees of the Convention apply to all public servants and public sector employees not engaged in the administration of the State and will give an account of any progress made in this regard in its next report. The Committee requests the Government to provide any collective agreement concluded in the public sector.

The Committee is examining the matter of compulsory arbitration when mediation fails in its observation on the application of Convention No. 87.