Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA), on the one hand, and the International Trade Union Confederation (ITUC), on the other, in communications received, respectively, on 1 September 2015 and 2 June 2015 concerning issues under examination by the Committee, as well as allegations of acts of anti-union discrimination, and particularly anti-union dismissals. The Committee requests the Government to send its comments in this regard.

The Committee notes the Government’s comments on the observations made by SEKRIMA in 2013, the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE) in 2014 and the ITUC in 2011 and 2014.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. With respect to the ITUC’s observations of 2011 regarding acts of anti-union discrimination allegedly arising out of the disclosure of the names of trade union members, the Committee notes the Government’s indication that there is no legal obligation to provide the list of trade union members and that the Labour Code prohibits anti-union discrimination. In view of the repeated observations of various trade union organizations reporting cases of anti-union discrimination which they deem have not led in practice to an adequate response from the public authorities, the Committee requests the Government to provide information on the number of cases of anti-union discrimination examined by the labour inspection services and labour courts, and on the corresponding penalties effectively applied by these institutions.

Article 4. Promotion of collective bargaining. Representativeness criteria. The Committee notes the adoption on 6 September 2011 of Decree No. 2011-490 on trade unions and representativeness, following the favourable opinion issued by the National Labour Council. The Committee notes with interest the objective nature of the criteria established by this Decree and refers in this regard to its observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Collective bargaining in sectors subject to privatization. The Committee notes that the Government, in response to the previous observations of the ITUC regarding the status of collective agreements in the railway, telecommunications and energy sectors, indicates that: (i) the privatization of these sectors has made obsolete most of the collective agreements that were in force; (ii) the setting aside of old collective agreements is consistent with Paragraph 3(1) of the Collective Agreements Recommendation, 1951 (No. 91), which provides that collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded; (iii) the privatized enterprises have therefore set aside the old collective agreements and proceeded to prepare their own agreements; and (iv) the railway enterprise Madarail, which was formerly public, consequently drafted its own collective agreement in June 2003 when it became semi-public. In this regard, the Committee recalls that it considers that the restructuring or privatization of an enterprise should not in itself result in the extinction of the obligations resulting from the collective agreement in force, and that the parties should be able to take a decision in this regard and to participate in these processes through collective bargaining. The Committee, while noting the existence of the Madarail collective agreement, therefore requests the Government to report on the status of the existing collective agreements in the energy and telecommunications sectors.

Promotion of collective bargaining in practice. Further to its previous requests, the Committee requests the Government to provide information on the number of collective agreements concluded in the country, including in enterprises employing fewer than 50 workers, and to indicate the number of workers and the sectors covered by these agreements.

Article 6. Workers benefiting from the guarantees of the Convention. Collective bargaining for seafarers. In its previous comments, the Committee noted that the Labour Code excludes maritime workers from its scope of application and requested the Government to take the necessary measures to ensure the adoption of specific provisions guaranteeing the collective bargaining rights of seafarers governed by the Maritime Code. The Committee notes the Government’s indication that: (i) a draft Maritime Code has been drawn up; (ii) the fundamental rights of seafarers are respected in this draft; and (iii) the adoption of the draft Maritime Code requires the intervention of several institutions. The Committee trusts that the new draft Maritime Code will provide that maritime workers benefit from the rights guaranteed by the Convention and hopes that the Government will be able to report its adoption in its next report.

Public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to adopt 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 their conditions of employment. The Committee notes the Government’s indication that contractual public employees, governed by Act No. 94-025 of 17 November 1994, are not covered by specific provisions relating to acts of anti union discrimination or interference or the right to bargain collectively. The Committee therefore once again requests the Government to adopt 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 their conditions of employment. The Committee trusts that the Government will take the necessary steps to that end, and reminds the Government that it may receive technical assistance from the Office in this regard.