Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Inspection Convention, 1947 (No. 81) - Madagascar (Ratification: 1971)

Referring to its observation, the Committee would also like to raise the following additional points.

Article 2 of the Convention. Scope of application. Referring to its previous comments, the Committee notes with interest that, following the extension of the Labour Code’s scope to cover export processing zones, the labour inspectorate carried out 13 initial inspections and five follow-up inspections in the export processing zones in the Analamanga region. The Committee would be grateful if the Government could keep the Office informed of labour inspection activities in the export processing zones in future, by providing statistics on both the inspections carried out and their outcome and the follow-up to inspections in these zones (infringements observed, compliance orders issued, etc.).

Referring to its previous comments and its 2009 general observation, the Committee notes that, according to the Government, the number of establishments liable to inspection is not available at the moment because many enterprises have closed during the crisis. The Committee would like the Government to indicate the measures taken to collect and submit to the Office statistical information on the number of employers and workers, as well as the enterprises and export processing zones, covered by the new Labour Code compared to those covered under the previous Labour Code.

Articles 3(2), 11 and 16. Other functions entrusted to labour inspectors and lack of material means. The Committee notes that, according to the Government, it goes without saying that any improvements in labour inspection services are contingent upon their being equipped with adequate material means to carry out the many and complex functions they are called upon to do. In this respect, the Committee points out that labour inspectors have to assume important duties in the settlement of both individual and collective disputes under the legislation. According to section 217, paragraph II, of the Labour Code, if the parties involved in a collective dispute fail to agree upon an arbitrator, the competent labour inspector is appointed as a matter of course to fulfil this role; and section 199 of the Labour Code provides for the mandatory intervention of the labour inspector to try and reach an amicable settlement in an individual dispute between a worker and his employer, before the worker brings an action before the competent court.

The Committee notes that, according to the statistics on the number of individual and collective disputes in which labour inspectors were called upon to act as conciliators in 2010 in the Analamanga region alone, there were 671 files on individual disputes and 26 files on collective disputes in which the labour inspection services were involved, whereas they only carried out 74 inspection visits. The Committee recalls that, according to paragraph 72 of its 2006 General Survey on labour inspection, it is important to avoid overburdening inspectorates with tasks, which by their nature may in certain countries be understood as incompatible with their primary function of enforcing legal provisions. Accordingly, in many countries, the roles of conciliation and enforcement are separated for two reasons. Firstly, because in those countries the nature and role of labour inspection are such that conciliation of labour disputes by labour inspectors unrelated to a breach of the law is not effective; secondly, the time and energy that inspectors spend on seeking solutions to collective labour disputes is often at the expense of their primary duties. As pointed out in paragraph 74 of the General Survey, assigning conciliation and mediation in collective labour disputes to a specialized body or officials enables labour inspectors to carry out their supervisory function more consistently. This should result in better enforcement of the legislation and hence a lower incidence of labour disputes.

The Committee asks the Government to take all the necessary measures, including revising the relevant provisions of the Labour Code, with a view to gradually dissociating the roles of arbitration and conciliation from those of labour inspection, to enable labour inspectors to devote their time more fully to monitoring the enforcement of legal provisions relating to conditions of work and the protection of workers, as stipulated under Article 3(1) of the Convention. It asks the Government to keep the Office informed of any progress made in this respect.

Article 5(b). Cooperation between the inspection services and other institutions. The Committee notes with interest that, according to the Government, the National Labour Council resumed its work in 2010, following the election of its new members. The Committee would like the Government to keep the Office informed of the activities of the National Labour Council with respect to strengthening the labour inspection system.

Article 7. Training of labour inspectors. The Committee notes the explanatory statement contained in the Labour Code, which refers to the establishment of the National Labour Institute as a workers’ education training centre for labour inspectors and controllers. The Committee would be grateful if the Government would provide information on the nature, content, duration and frequency of the training provided to labour inspectors and controllers, as well as on the number of inspectors and controllers who have benefited from this training.

Article 8. Number of women inspectors. In reply to its previous comments, the Committee notes that the Government refers to the introduction of a gender-approach policy into its development strategy to explain the reversal of the statistics on the number of women and men undergoing labour inspection training. The Committee requests the Government to describe the components of the gender-approach policy and to continue providing statistics on developments on the breakdown between women and men labour inspectors. It would be grateful if the Government could indicate whether the same trend exists in other groups of public servants which, according to information provided by the Autonomous Trade Union of Labour Inspectors (SAIT) in 2008, enjoy better working conditions than those of labour inspectors.

Article 12. Investigatory powers of labour inspectors. In reply to its previous comments, the Government states that the activities referred to under section 238 of the Labour Code constitute the normal duties of a labour inspection service despite the lack of means available, which is partly offset by cooperation with the local administrative authorities (which, for example, provide a means of transport or accommodation). The Committee recalls that in its previous comments, it welcomed the adoption of section 238 of the Labour Code which attempted to give statutory effect to Article 12(1)(c)(i), (ii), (iii) and (iv) of the Convention, concerning the investigatory prerogatives of labour inspectors. The Committee requests the Government to provide information and statistical data concerning the implementation of section 238 of the Labour Code during inspection visits (exercise of investigatory powers and results obtained).

Article 13. Powers of injunction of labour inspectors with regard to occupational safety and health. The Committee notes the Government’s reply to the comments made in 2007 and 2010, to the effect that section 240 of the new Labour Code might indeed cause problems concerning the extent and limits of the powers of labour inspectors. However, the Government states that, in practice, labour inspectors do not hesitate to decide that an injunction should be issued in the event of imminent danger to workers. The Committee requests the Government to take the necessary measures to ensure that the extent of the power of injunction of labour inspectors is clearly defined in the Labour Code in conformity with Article 13 of the Convention. Furthermore, it asks the Government to provide statistics on the injunctions issued by the labour inspectors, including in the event of imminent danger.

Article 14. Notification of industrial accidents and cases of occupational disease to the labour inspectorate. The Committee notes the Government’s indications that, in the event of an industrial accident and occupational disease, the employer is bound to make a statement to the National Social Security Fund (NSSF), if it belongs to the Fund. According to information provided previously by the Government, the Fund must keep the labour inspectorate informed of any occupational accidents and cases of occupational disease that might have occurred. The Committee notes in this context that under section 1 of Decree No. 69-145 of 8 April 1969 establishing the Social Security Code, any employer engaging one or more persons is bound to affiliate with the NSSF. The Government states that if an employer fails to join the Fund, the worker may lodge a complaint with the labour inspectorate.

The Committee would be grateful if the Government could provide information on the way this system operates in practice if the employer fails to affiliate with the Fund and to indicate the measures that might be taken to ensure that the labour inspectors are informed of the greatest number of industrial accidents and cases of occupational disease possible, with a view to investigating their causes and preventing their recurrence. The Committee would like to draw the Government’s attention to the ILO code of practice on the recording and notification of occupational accidents and diseases which is available at the web page: http://www.ilo.org/safework/info/standards-and-instruments/codes/WCMS_107800/lang--en/index.htm.