Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - Madagascar (Ratification: 1997)

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The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA), attached to the Government’s report. The Committee also notes the observations of the General Confederation of Workers’ Unions of Madagascar (FISEMA) and of the Confederation of Malagasy Revolutionary Workers’ Unions (FISEMARE), received on 1 September 2022. The Committee requests the Government to provide its comments on the observations of the social partners.

Part I of the report form. National legislation. The Committee notes the recently adopted regulatory texts, in particular: (i) Decree No. 2017-843 of 19 September 2017, reforming the National Labour Committee (CNT), the tripartite consultation body for the social partners on employment, vocational training, social protection, labour and wages; and establishing Tripartite Regional Labour Councils (CRTTs) to ensure the effectiveness of tripartite consultations at the regional level; (ii) Decree No. 2020-1357 of 21 October 2020, on the composition, organization and functioning of the Higher Public Service council (CSFOP), a bipartite consultation body on regulations and laws concerning the public service; (iii) Order No. 18455/2018/MTM, establishing procedures for appointing members of the CNT; (iv) Order No. 18455/2018/MTM, establishing procedures for appointing members of the National Tripartite Maritime Labour Council (CNTTM); (v) Order No. 16817/2019/MTM, nominating members of the CNTTM; (vi) Circular No. 30/MTEFPLS/SG/DGTLS/20, extending until further notice the term of office of staff delegates, board members and management committee members of different tripartite management bodies; and (vii) Circular No. 055/MTEFPLS/SG/DGTLS/22 of 27 April 2022, requiring the election of staff delegates no later than September 2022. The Committee requests the Government to provide information on the impact of the newly adopted legislation on the manner in which the Convention is applied and to continue providing information on the adoption of texts giving effect to the Convention.

Articles 2 and 5 of the Convention. Effective tripartite consultations. The Committee notes with interest that the Government ratified the following six instruments in June 2019: (i) the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143); (ii) the Labour Relations (Public Service) Convention, 1978 (No. 151); (iii) the Collective Bargaining Convention, 1981 (No. 154); (iv) the Private Employment Agencies Convention, 1997 (No. 181); (v) the Domestic Workers Convention, 2011 (No. 189); and (vi) the Protocol of 2014 to the Forced Labour Convention, 1930. The Government indicates that it consulted the social partners regarding these ratifications and commissioned a prior gap analysis relating to these instruments and had it validated by the social partners. The Government explains that consultations are held in the CNT for matters concerning the private sector and in the CSFOP for matters concerning the public sector. The Government also indicates that workshops on tripartite consultations are held to involve representatives of the workers and of the employers in decision-making which relates to them. With regard to the ratification of Conventions Nos 143, 154, 181 and 189 and the Protocol of 2014, consultations took place in the CNT on 6 September 2018. The views of the representative employers’ and workers’ organizations that participated are recorded in a memorandum of 5 October 2018. With regard to Conventions Nos 151 and 154, the Government indicates that it also held consultations in the CSFOP. At a meeting of 2 August 2018, the CSFOP issued a favourable opinion regarding the ratification of Convention No. 151. As regards Convention No. 154, the formal opinion of the CSFOP was issued at a workshop held the same month. The views of the representative organizations in the CSFOP are reproduced in a memorandum of 6 September 2018. The Government adds that tripartite consultations also took place regarding the adoption of texts taking account of the above-mentioned ratifications. Following the ratification of Convention No. 151, exchanges took place with the ministries, “strengthened by the participation of representatives of the trade unions”, regarding a Bill issuing the General Public Service Regulations, to replace the current General Regulations for Public Servants. A tripartite consultation workshop on this subject was held from 8 to 11 September 2020. The process of the adoption of the Bill was interrupted by the COVID-19 pandemic and is still in progress. Numerous tripartite consultations also took place on the alignment of the Labour Code with Conventions Nos 143, 181, 189 and the Protocol of 2014. Initial tripartite consultations to identify the texts needing amendments took place in July 2019. In February 2020, preliminary work on reform of the Labour Code took place with the participation of the tripartite actors at a technical validation workshop. Tripartite consultations were then held from 22 to 26 March 2021, from 21 to 24 September 2021 and from January to April 2022. Regarding the application of Conventions Nos 143 and 181, the Government indicates that in December 2020 it organized a workshop to give official status to the focal points for fair recruitment in the two regions of origin of Malagasy migrant workers. The focal points comprise civil society organizations and employers’ and workers’ representatives from the most representative regional organizations. The Government also explains that the CNT was consulted on 5 April 2022 regarding the adoption of Decree No. 2022-626 fixing the minimum initial wage (SME) for the private sector. It was also consulted on 10 June 2022 concerning a draft order updating the list of occupational diseases.

With regard to potential issues in reports to be submitted to the Office under article 22 of the ILO Constitution, the Government indicates that in August 2022, at a workshop for the presentation and tripartite validation of the country report, the most representative employers’ and workers’ organizations were called upon to give their views on the application of the Conventions and on the reports. Regarding the ratification proposals, the Government proposed ratifying the Work in Fishing Convention, 2007 (No. 188). However, further to a consultation and cooperation workshop, the stakeholders agreed to, first, ratify the Maritime Labour Convention, 2006, as amended (MLC, 2006). A validation workshop took place in 2017 during which a road map for ratification of the MLC, 2006, was adopted. The procedure for the adoption of the ratification Act was launched. The ministers concerned signed the ratification Bill, which was deposited with a view to being placed on the agenda of the Council of Ministers. Following the change of Government, a new presentation of the ratification Bill is being prepared. At a general assembly on 1 October 2019, the CNTTM supported the ratification process. As regards denunciations of ratified Conventions, the Government states that no tripartite consultations took place since the Government did not denounce any Convention during the period covered by the report.

As regards the observations of the social partners, the Committee notes that FISEMA, while recognizing that the reforms demanded of the CNT took place in early 2020, observes that the functioning of the CNT still needs to be improved. For example, FISEMA notes that the CNT is still chaired by the Ministry of Labour, whereas, under the terms of Decree No. 2017-843 of 19 September 2017, it should rotate each year between representatives of the Government, workers and employers, respectively. FISEMA also points out that the agenda and activities of the CNT are generally fixed according to the needs and priorities of the Government, which is not in line with the provisions of Decree No. 2017-843. According to FISEMA, international labour standards and their transposition into national law are not examined regularly, effectively and seriously but “in an untimely manner” according to the whim of the Government. As regards the CRTTs, FISEMA emphasizes that they have not been established and are not operating.

The Committee also notes that FISEMARE, while recognizing that there is cooperation between employers’ and workers’ representatives, observes that the functioning of the CNT is “limited”. FISEMARE points out that tripartism is not always respected and that social dialogue is not practiced systematically. FISEMARE considers that the Government often forgets the trade unions in decision-making.

The Committee also notes that SEKRIMA, while recognizing that the social partners are in general duly consulted, emphasizes that the concrete application of the results of tripartite consultations is problematic. By way of example, SEKRIMA states that, as regards the application of Decree No. 2022-626 fixing the SME, the Government decided to subsidize the difference between the amount of the SME and the amount of wages in the private sector by paying part of employers’ contributions to the National Social Security Fund (CNaPS). However, not all workers are affiliated to the CNaPS. In light of the above, the Committee requests the Government to respond to the concerns expressed by the above-mentioned trade union organizations regarding the manner in which national law and practice give effect to the requirement of the Convention to hold effective consultations on each of the matters set out in Article 5(1) of the Convention.The Committee reminds the Government that, under Article 5(2) of the Convention, tripartite consultations on the above-mentioned matters shall be undertaken at appropriate intervals fixed by agreement, but at least once a year.The Committee considers that the existence of major disagreements regarding the effective nature of consultations within the CNT is such as to compromise the proper application of the Convention.The Committee therefore requests the Government to send detailed information on the measures taken or envisaged to ensure effective tripartite consultations at appropriate intervals. The Committee also requests the Government to provide information on the coordination between the various tripartite consultation bodies, in particular the CNT (at the national level) and the CRTTs (at the regional level). Lastly, the Committee requests the Government to keep it informed of any developments regarding the ratification of Convention No. 151 and the MLC, 2006.

Article 3. Choice of the representatives of employers and workers by their respective organizations. The Government recalls that in 2015 it adopted Order No. 34-2015 on determining trade union representativeness for 2014 and 2015. Since then, on 19 September 2017, it adopted Decree No. 2017-843 on the reform of the CNT and the establishment of the CRTTs. The Government indicates that the CNT functions on the basis of this text and sent a copy of it. The Government explains that it did not hold staff delegate elections for the 2018–19 period owing to the social and political crisis affecting the country at the time. Similarly, in 2020–21, elections were postponed because of the COVID-19 pandemic. The Government states that, under the provisions of Circular No. 30/MTEFPLS/SG/DGTLS/20, the term of office of staff delegates was extended during this period. With a view to returning to normal, Circular No. 055 MTEFPLS/SG/DGTLS/22 of 27 April 2022 was adopted, requiring the election of staff delegates to be held by the end of September 2022. The Government emphasizes that a new order on representativeness was to regulate this matter from 2022. In addition, new Decree No. 2017-843 provides for joint representation of employers and workers in the CNT and the CRTTs. The Committee also notes that elections for staff delegates did not take place between 2018 and 2021 and were due to occur in September 2022 at the latest. The Committee requests the Government to provide up-to-date information on the manner in which the new regulatory texts regarding the choice of employers’ and workers’ representatives are applied in practice taking account of the areas covered by tripartite consultations under Article 5 of the Convention. The Committee also requests the Government to explain how these texts establish or implement objective and transparent criteria for the appointment of representatives to national and regional tripartite bodies.

Article 4. Administrative support. Training necessary for persons participating in procedures. FISEMA observes that the procedures covered by the Convention do not have appropriate administrative support, a budget or adequate financing. FISEMA indicates that these procedures are largely organized with ILO assistance. Similarly, FISEMARE underlines the fact that the CNT has problems functioning, owing to lack of status and budget. Recalling that Article 4 of the Convention requires participants in the consultation procedures covered by the Convention to enjoy the necessary administrative support and to have access to any training needed to enable them to duly discharge their duties, the Committee notes with concern the observations of FISEMA and requests the Government to provide detailed information on the manner in which it provides, or intends to provide, all the administrative and financial support necessary for the consultation procedures covered by the Convention.

Article 6. Annual report. FISEMA observes that, contrary to the provisions of Decree No. 2017-843 of 19 September 2017, no annual report on the activity of the CNT has been drawn up. The Committee requests the Government to provide its comments on this observation of FISEMA and to indicate, if applicable, the reasons why no annual report has been produced as required by the national legislation, and whether the Government is making provision to ensure compliance with this obligation in the future.

Part VI of the report form. Representative organizations consulted. The Committee notes the Government’s indication that it consulted the representative employers’ and workers’ organizations at a report presentation and validation workshop held from 3 to 5 August 2022. The Government states that it sent a copy of the report to the Madagascar Enterprise Group (GEM) and Fivondronan’ny Mpandraharaha eto Magagasikara (FIVPAMA) (for the employers’ organizations) and to FISEMARE, FISEMA and SEKRIMA (for the workers’ organizations). The Committee also notes FISEMA’s observation that it did not receive the Government’s report. The Committee reminds the Government that, under article 23(2) of the ILO Constitution, it is required to send the report to the representative organizations and requests the Government to provide its comments on the observation of FISEMA that it did not receive the Government’s report.