Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Madagascar (Ratification: 1960)

The Committee notes the observations of the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 1 September 2022, which refer to the issues examined in the present comment.

The Committee also notes the observations of the Randrana Sendikaly Alliance, received on 19 October 2022, alleging the arrest and sentencing to a 12-month prison term and a fine of 400,000 ariarys (about US$92) of Mr Zotiakobanjinina Fanja Marcel Sento, a leader of the trade union Trade unionism and life of societies (SVS Etoile), for having posted on Facebook the results of meetings held with the management of an enterprise in the textile sector in the performance of his trade union duties. The Committee requests the Government to provide its comments on these serious allegations.

The Committee notes that the Government has not responded to the 2021 observations of the Autonomous Trade Union of Labour Inspectors (SAIT) alleging the violation of the right of trade unions to organize their activities in line with Article 3 of the Convention. The Committee once again requests the Government to provide its comments in this regard.

In its previous comments, the Committee noted the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) containing allegations of restrictions on the right to organize, and especially the right of trade unions to organize their management and training activities, and also on the difficulties encountered in establishing trade unions. The Committee notes that the Government, in response to these allegations, indicates that freedom of association is protected under section 136 et seq. of the Labour Code and that Decree No. 2011-490 and its implementing order No. 28968-2011 provide for the promotion of trade union rights in the country. Recalling the Government’s responsibility to ensure that the rights provided for in the Convention are respected both in law and in practice, the Committee requests the Government to provide information on the measures taken to ensure the implementation of the above-mentioned provisions in practice.

Restrictions on trade union activities in the maritime sector. The Committee previously urged the Government to ensure that the independent inquiry being conducted into anti-union acts in the maritime sector was concluded as soon as possible. The Committee notes the Government’s indication that the Ministry of Transport and Meteorology is organizing a meeting with the General Maritime Union of Madagascar (SYGMMA) with a view to ending the conflict between the union and an enterprise in the maritime sector. Noting the Government’s brief reference to the above-mentioned inquiry, the Committee requests the Government to clarify whether the meeting with SYGMMA has been concluded and, if so, to provide detailed information on its outcome. The Committee also requests the Government to provide detailed information on the outcome of any meeting organized by the Ministry of Transport and Meteorology concerning allegations of anti-union acts in the maritime sector.

Article 2 of the Convention. Workers governed by the Maritime Code. In its previous comments, the Committee noted that a new Maritime Code was to be adopted and requested the Government to ensure that the Code provided for the right of seafarers to establish and join trade unions. The Committee notes the Government’s indications that the fundamental rights and freedoms of seafarers were taken into account in the preparation of the draft Maritime Code, which is currently in the process of adoption. The Committee expects that the new Maritime Code will be adopted soon and will contain specific provisions providing for the right of seafarers to form and join trade unions. The Committee requests the Government to provide information on any developments in this regard and to transmit a copy of the Maritime Code once adopted.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously noted the adoption of Decree No. 2011-490 on workers’ organizations and representativeness, which provides for the holding of elections for staff delegates at the enterprise level, and requested the Government to provide information on any progress made in such elections and their impact on the determination of the employers’ and workers’ organizations that participate in dialogue at the national level. The Committee notes the Government’s indication that it is left to the workers and employers to organize the elections for staff representatives and to forward the results to the Ministry of Labour and Social Legislation, the role of which is limited to issuing a decree confirming that representativeness has been established. In this regard, the Government indicates that the Order No. 34-2015, issued on 19 February 2015, is in a state of tacit renewal since certain factors prevent the organization of new elections. The Committee also notes that FISEMA, in its observations, alleges that in 2019, when appointing workers’ representatives to the boards of directors and management committees of the National Social Insurance Fund (CNAPS), the Antananarivo Inter-Enterprise Health Organization (OSTIE) and the Inter-Enterprise Medical Association of Antananarivo (AMIT), the Ministry of Labour and Social Legislation unilaterally changed the names of the representatives who were to sit on the boards and committees. FISEMA says it has filed a complaint with the Council of State, which issued three rulings in its favour in 2021 and 2022. The Committee requests the Government to provide specific information on the factors that have prevented the holding of elections for staff representatives since 2015. Furthermore, recalling the importance of avoiding interference by public authorities in the determination of the representativeness of professional organizations, the Committee requests the Government to provide its comments on the serious allegations of FISEMA.

Right of workers’ organizations to organize their activities and formulate their programmes. Compulsory arbitration. The Committee previously requested the Government to amend sections 220 and 225 of the Labour Code, which provide that if mediation fails, the collective dispute is referred by the Ministry of Labour and Social Legislation to a process of arbitration and that the arbitral award ends the dispute and the strike, as well as section 228 of the Labour Code which provides for the possibility of requisitioning striking employees in the event of disruption of public order. The Committee notes with regret that the Government merely indicates that prolonged disputes and strikes cause difficulties for society, workers and the economy, and provides information about the composition and functioning of its arbitration board. The Committee recalls that compulsory arbitration in the context of a collective labour dispute and the requisition of workers in the case of a strike are only acceptable when the strike in question may be restricted, or even prohibited, namely in the case of public servants exercising authority in the name of the State, in essential services in the strict sense of the term, or in situations of acute national crisis (2012 General Survey on the fundamental Conventions, paragraphs 151 and 153). Recalling that the above-mentioned issues have been the subject of its comments for several years, the Committee urges the Government to take the necessary measures to amend sections 220, 225 and 228 of the Labour Code in the near future. The Committee requests the Government to provide information on any developments in this regard, and reminds it that it may avail itself of the technical assistance of the Office, if it so wishes.