Protection of Wages Convention, 1949 (No. 95) - Madagascar (Ratification: 1960)

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

In order to provide an overview of matters relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine the application of Conventions Nos 26 (minimum wages) and 95 (protection of wages) in a single comment.

The Committee notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE) and the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 1 September 2022.

Minimum wages

Article 3 of Convention No. 26. Minimum wage-fixing machinery and consultation of the social partners. Further to its previous comments, the Committee notes the information provided by the Government in its report on the adoption of Decree No. 2022-626 of 4 May 2022 setting the minimum starting wage in the private sector, for which the implementing order is still being prepared. The Government adds that the new minimum starting wage was set taking into account the protocol containing the outcome of wage bargaining, submitted to the National Labour Council (CNT) for its views on 5 April 2022, and that it includes a supplement covered by the State. In this regard, the Committee notes the observations of the FISEMA and the FISEMARE, which indicate that: (i) the minimum wage-fixing machinery no longer takes into account the real situation and the minimum subsistence level for workers; and (ii) there is a significant period of time between the declaration of the new minimum starting wage and the publication of the corresponding order, which accentuates the difficulties faced by workers in meeting their living expenses, particularly in light of price rises. The Committee also notes the Government’s indication that, within the context of the operationalization of the CNT, standing committees have been established to ensure the sound functioning of the CNT, including the purchasing power and wages committee. In this connection, it notes the observations of the FISEMA concerning the dysfunctionality of the CNT and that the purchasing power and wages committee has been created but is not yet operational. It also notes the emphasis by the FISEMARE that, despite the existence of regular dialogue between employers and workers on wage increases, in the last resort, the rates of minimum wages are set by employers. The Committee requests the Government to intensify its efforts to make the CNT operational, and to provide information on this subject, including on the establishment of the purchasing power and wages committee, its work and achievements. The Committee also requests the Government to take the necessary measures to adopt, as soon as possible, the implementing order of Decree No. 2022-626 of 4 May 2022, and to provide information on the progress made in this regard.

Article 4. System of supervision and sanctions. Further to its previous comments, the Committee notes the Government’s indication that, since 2019, the labour inspection services, together with the National Social Insurance Fund, have established a task force responsible for monitoring regularly the application of the Decree on the minimum starting wage, and that: (i) in the event of failure to apply the minimum starting wage, the labour administration makes time-bound recommendations with a view to ensuring effective compliance with the Decree on the minimum starting wage; and (ii) if these recommendations are not given effect, labour inspectors indicate the offences in a report referred to the Office of the Prosecutor-General of the Republic. The Committee requests the Government to continue providing information on the activities of the task force, including statistics on cases of failure to apply the minimum starting wage, and the measures adopted to resolve the issue.

Protection of wages

Article 8 of Convention No. 95. Deductions from wages. The Committee notes that, in reply to its previous comment, the Government indicates in its report that: (i) no deduction from wages may be made without the consent of the worker; and (ii) labour inspectors organize information sessions and training for public institutions and the social partners with a view to preventing risks of abuse in this field. However, the Committee notes that the Government does not indicate the manner in which the deductions authorized in sections 69 and 71 of the Labour Code are limited. The Committee recalls that, in accordance with Article 8(1) of the Convention, deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations, or fixed by collective agreement or arbitration award. The Committee therefore requests the Government to indicate the measures adopted or envisaged that are necessary to establish precise and overall limits on the deductions from wages authorized in sections 69 and 71 of the Labour Code. It requests the Government to provide information on this subject.

Article 12. Regular payment of wages and final settlement of all wages upon the termination of the contract. Further to its previous comment, the Committee notes that the Government has not provided information on delays in the payment of wages and of social security contributions, as well as cases of the non-payment of the remaining amounts due to workers on the termination of the employment relationship. It also notes that the FISEMA denounces the existence of several months of wage arrears, including social security contributions, in the public sector and considers that the labour inspection services have no authority in relation to this situation. The Committee once again requests the Government to take all the necessary measures, including action by the labour inspection services and the imposition of effective penalties in the event of non-compliance, to resolve these difficulties and to provide information on this subject.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

In order to provide an overview of matters relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 26 (minimum wages) and 95 (protection of wages) in a single comment. The Committee notes the observations of Madagascar Enterprise Group (GEM) and of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) provided with the Government’s reports.

Minimum wages

Article 3 of Convention No. 26. Minimum wage fixing machinery and consultation of the social partners. Further to its previous comments, the Committee notes the information provided by the Government, particularly the adoption in 2017 of Decree No. 2017-143 setting the new rates of the starting and seniority minimum wage, and of Decree No. 2017-843 establishing the National Labour Council (CNT) and the Regional Tripartite Labour Councils. The Government indicates that the CNT is being operationalized. The Committee notes that, in accordance with the relevant provisions of the Labour Code, Decree No. 2017-143 reaffirms the role of the CNT in the functioning of the minimum wage system and establishes the Committee on Purchasing Power and Wages as a standing committee of the CNT. The Committee also notes the indications of the GEM that the minimum wage rates have been reviewed on the basis of annual negotiations between the social partners. It also notes that the SEKRIMA considers that the method used to calculate minimum wages does not take into account the real social context and must be reviewed. The Committee requests the Government to provide information on the progress achieved to operationalize the National Labour Council, and on its work on minimum wages and any results achieved.

Article 4. System of supervision and sanctions. Further to its previous comments, the Committee notes the information provided by the Government on reported infringements concerning non-payment of the minimum wage. The Committee also notes the reports of the SEKRIMA that there is insufficient supervision by the labour administration. The Committee also notes that, according to the Decent Work Country Programme (2015–19), 80 per cent of workers are engaged in the informal economy. In this context, the Committee requests the Government to take the necessary measures to ensure the payment of the minimum wage in the formal and informal sectors, including through the action of the labour inspection services and the imposition of effective sanctions in the event of non-compliance. It requests the Government to provide information in this regard.

Protection of wages

Article 8 of Convention No. 95. Deductions from wages. Further to its previous comments, the Committee notes the information provided by the Government on deductions from wages. It notes the reports by the SEKRIMA of abuse in this area. The Committee notes that, in addition to statutory deductions, sections 69 and 71 of the Labour Code authorize deductions in the event of the employer making special advances and advance payments and in order to reimburse amounts related to the use of equipment. These deductions can be made in addition to those related to voluntary attachment or assignment of wages. While the latter are limited by section 685 of the Code of Civil Procedure, there is no limit on the other deductions. The Committee requests the Government to indicate the manner in which the deductions authorized by sections 69 and 71 of the Labour Code are limited and to take steps to prevent abuse.

Article 12. Regular payment of wages and final settlement of all wages upon the termination of the contract. Further to its previous comments, the Committee notes the information provided by the Government. It also notes that the SEKRIMA reports delays in the payment of wages and of social security contributions as well as cases of non-payment of remaining amounts due to workers on the termination of the employment relationship. The Committee requests the Government to take steps, including through the labour inspection service and the imposition of effective sanctions in the event of non-compliance, in order to remedy these difficulties and to provide information in this respect.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

In order to provide an overview of matters relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Conventions Nos 26 (minimum wages) and 95 (protection of wages) in a single comment. The Committee notes the observations of Madagascar Enterprise Group (GEM) and of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) provided with the Government’s reports.

Minimum wages

Article 3 of Convention No. 26. Minimum wage fixing machinery and consultation of the social partners. Further to its previous comments, the Committee notes the information provided by the Government, particularly the adoption in 2017 of Decree No. 2017-143 setting the new rates of the starting and seniority minimum wage, and of Decree No. 2017-843 establishing the National Labour Council (CNT) and the Regional Tripartite Labour Councils. The Government indicates that the CNT is being operationalized. The Committee notes that, in accordance with the relevant provisions of the Labour Code, Decree No. 2017-143 reaffirms the role of the CNT in the functioning of the minimum wage system and establishes the Committee on Purchasing Power and Wages as a standing committee of the CNT. The Committee also notes the indications of the GEM that the minimum wage rates have been reviewed on the basis of annual negotiations between the social partners. It also notes that the SEKRIMA considers that the method used to calculate minimum wages does not take into account the real social context and must be reviewed. The Committee requests the Government to provide information on the progress achieved to operationalize the National Labour Council, and on its work on minimum wages and any results achieved.

Article 4. System of supervision and sanctions. Further to its previous comments, the Committee notes the information provided by the Government on reported infringements concerning non-payment of the minimum wage. The Committee also notes the reports of the SEKRIMA that there is insufficient supervision by the labour administration. The Committee also notes that, according to the Decent Work Country Programme (2015–19), 80 per cent of workers are engaged in the informal economy. In this context, the Committee requests the Government to take the necessary measures to ensure the payment of the minimum wage in the formal and informal sectors, including through the action of the labour inspection services and the imposition of effective sanctions in the event of non-compliance. It requests the Government to provide information in this regard.

Protection of wages

Article 8 of Convention No. 95. Deductions from wages. Further to its previous comments, the Committee notes the information provided by the Government on deductions from wages. It notes the reports by the SEKRIMA of abuse in this area. The Committee notes that, in addition to statutory deductions, sections 69 and 71 of the Labour Code authorize deductions in the event of the employer making special advances and advance payments and in order to reimburse amounts related to the use of equipment. These deductions can be made in addition to those related to voluntary attachment or assignment of wages. While the latter are limited by section 685 of the Code of Civil Procedure, there is no limit on the other deductions. The Committee requests the Government to indicate the manner in which the deductions authorized by sections 69 and 71 of the Labour Code are limited and to take steps to prevent abuse.

Article 12. Regular payment of wages and final settlement of all wages upon the termination of the contract. Further to its previous comments, the Committee notes the information provided by the Government. It also notes that the SEKRIMA reports delays in the payment of wages and of social security contributions as well as cases of non-payment of remaining amounts due to workers on the termination of the employment relationship. The Committee requests the Government to take steps, including through the labour inspection service and the imposition of effective sanctions in the event of non-compliance, in order to remedy these difficulties and to provide information in this respect.

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

Article 3(2) of the Convention. Method of payment of wages. Further to its previous comment, the Committee notes the Government’s indication that the Ministerial Decree provided for in section 63 of the Labour Code in the forms and modalities of the payment of wages has not yet been issued. Noting that under section 265 of the Labour Code, regulations adopted for the implementation of the previous Labour Code of 1994 continue to apply, the Committee requests the Government to communicate the text of the Ministerial Decree which may have been issued under section 73 of the Labour Code of 1994 on the forms of payment of wages and also to keep the Office informed of any progress made with regard to the issuing of the Decree referred to in section 63 of the new Labour Code.

Article 6. Freedom of workers to dispose of their wages. With reference to the absence of an express provision prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages, the Committee notes the Government’s statement that the matter will be referred to the National Labour Council for consideration and possible approval of a new provision to be introduced into the Labour Code. The Committee trusts that the Government will take all appropriate steps so that the national legislation gives full effect to this requirement of the Convention.

Article 8(2). Keeping workers informed of authorized deductions from wages. Further to its previous comment on this point, the Committee notes the Government’s reference to section 69 of the Labour Code and sections 684–689 of the Code of Civil Procedure of 2003, fixing limits for the attachment and assignment of wages. Recalling that this provision of the Convention requires that workers be informed of the conditions under which their wages may be subject to deductions, the Committee once again requests the Government to indicate how the application of this provision is ensured in law and practice.

Part V of the report form. Application in practice. The Committee notes that according to the Government’s report, approximately 60 per cent of the total amount of accumulated wage debts – mostly in the sugar industry following the policy of privatization – have now been settled. The Committee requests the Government to keep the Office informed of further developments regarding the settlement of all outstanding payments providing detailed information on the approximate number of persons and enterprises affected, the overall amount of wage arrears and any specific measures taken or envisaged to prevent similar problems in the future.

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

Article 3(2) of the Convention. Method of payment of wages. The Committee notes the Government’s indication that the Decree referred to in section 63 of the Labour Code of 2003 on the forms and procedures for the payment of wages has not yet been issued. The Committee would thank the Government for explaining what the Decree in question is expected to regulate (e.g. forms of non-cash payment by bank transfer or postal order, etc.) and to transmit a copy once it has been adopted.

Article 4. Partial payment of wages in kind. The Committee notes the Government’s clarification on the exceptional character of payment in kind in the form of decent housing and regular supply of foodstuffs for workers transferred outside their normal place of residence. It notes, in particular, that Order No. 2426-IGT of 1953 and Order No. 688-IGT of 1954, which fix the maximum amounts of food and housing allowances respectively by reference to the applicable minimum hourly wage rate in force, are still in effect. The Committee would be grateful if the Government would indicate whether the above Orders continue to provide fair and reasonable levels for the board and lodging allowances or whether consideration should be given to other methods of calculating the cash value of benefits in kind, such as for instance the ordinary market value, or the cost price of the goods and services provided.

Article 6. Freedom of workers to dispose of their wages. The Committee notes the Government’s statement that there may be no express provision in the Labour Code prohibiting employers from limiting workers’ freedom to dispose of their wages, as prescribed by this Article of the Convention, but no problem has ever been reported in this respect. The Committee wishes to refer to paragraph 210 of its 2003 General Survey on the protection of wages in which it pointed out that “nothing short of an explicit legislative provision setting forth a general prohibition upon employers from limiting the freedom of workers to dispose of their wages in any form or manner, directly or indirectly, and not simply in respect of company stores, can be regarded as giving full effect to the requirements of the Convention [and that] other legislative measures, such as the exhaustive enumeration of authorized deductions, combined with an explicit provision by law are unlawful and without effect, may be deemed to give only partial effect to the obligation laid down in Article 6 of the Convention”. Moreover, in paragraph 510 of the same General Survey, the Committee emphasized that the mere fact that certain procedures or practices may not have given rise to complaints, or that certain practices which have to be controlled under the terms of the Convention do not exist or are unlikely to occur in some countries, does not absolve the governments of those countries from their obligation to give specific legislative provision to the standards set out in the Convention. The Committee therefore requests the Government to consider introducing into the Labour Code at the next possible opportunity a specific provision implementing the requirement of this Article of the Convention.

Articles 8(2) and 10. Wage deductions and attachment of wages. In its previous comment, the Committee requested clarification on the manner in which workers are kept informed of the nature and extent of authorized deductions. The Committee also asked the Government to specify whether Decree No. 55-972 of 1955 fixing limits for the attachment and assignment of wages was still in force. In the absence of any reply in this regard, and while drawing the Government’s attention to paragraphs 294–297 of the above-referenced General Survey, the Committee wishes to renew its request for additional information on: (i) how workers are notified, before they enter employment or when the wage conditions applicable to them change, of all possible deductions to which their wages might be legally subject; and (ii) the legal text setting overall limits to permissible attachment by court decision and consequently also defining the unattachable part of the wage.

Part V of the report form.  The Committee notes that the Government refers to occasional difficulties involving the delayed payment of wages experienced in the private sector. The Committee understands that the problem of accumulated wage arrears have at times hindered the Government’s privatization policy, for instance in the case of the sugar industry. It would therefore appreciate if the Government would provide in its next report full particulars on the nature and scale of those difficulties, including the sectors and approximate number of workers affected, the average length of the delay in the payment of wages, and the measures taken to prevent and punish abusive pay practices.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information provided in the Government’s report, especially that Law No. 2003-044 concerning the Labour Code has been adopted. It asks the Government to provide further information on the following points.

Article 3, paragraph 2, of the Convention. The Committee notes that section 63 of the Labour Code provides for a ministerial decree which would determine the modalities and payment of wages. It requests the Government to indicate whether such ministerial decree has been promulgated and, if so, to forward a copy.

Article 4. The Committee notes that section 62(2) of the Labour Code provides that payment of wages in kind is allowed only in case the employer is under the obligation to provide the employee with housing and food. The Committee notes that the Convention permits only partial payment in kind of the worker’s salary and it requests the Government to explain if and how this point of the Convention is given effect in national legislation. It also notes that the Code appears to contain no provisions requiring the value of housing and food that the employer provides be fair and reasonable. It asks the Government to clarify whether Order No. 399‑IGT of 17 February 1954 on the provision of food and lodging is still in force, or whether any revised regulations have ever been issued.

Article 6. The Committee notes that the Labour Code does not appear to contain any provisions expressly prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages. Recalling that the Committee has been commenting on this point for several years, it asks the Government once again to indicate the measures taken or envisaged to ensure that the Convention is fully implemented in this regard.

Article 7. The Committee notes that section 74 of the Labour Code provides for a ministerial decree concerning the conditions for the establishment, functioning and closure of company stores. It asks the Government to clarify whether Decree No. 61.714 of 28 December 1961 on works stores continues to apply or whether any new regulations have been adopted.

Article 8, paragraph 2. While the Convention provides that workers must be informed of the conditions under which and the extent to which deductions from wages may be made, the Committee notes that national legislation does not appear to contain specific provisions on this point. It therefore asks the Government to provide explanations as to whether and how the Convention is given effect in this regard.

Article 10. The Committee notes that section 69(1) of the Labour Code provides that deductions from allowances or salaries are permitted only when ordered by a judicial decision (attachment) or voluntarily agreed upon (assignment). It also notes that the Code does not specify limits of such attachments or assignments over the workers’ wages. The Government last provided information on such limits in its report received by the Office in 1996, and the Committee requests the Government to clarify whether Decree No. 55‑972 of 16 July 1955 concerning the attachment and assignment of wages and wage deductions is still in force or whether it has been revised.

Part V of the report form. The Committee would be grateful if the Government would supply general information on the practical application of the Convention such as, for instance, copies of collective agreements containing clauses on pay conditions, extracts from inspection reports on matters related to the payment of wages, any difficulties concerning the regular and timely payment of wages in the private or public sector, etc.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Article 4 of the Convention. The Committee notes the Government’s indication that the Labour Code of 1995 is in the process of being revised, and that the new draft Labour Code intends to reintroduce the specific prohibition of wage payment in the form of liquor or alcoholic drinks as well as the prohibition of payment of wages in kind in general, except in cases where the employer is bound to provide workers on mission with housing and foodstuffs. The Committee asks the Government to keep it informed of any developments concerning the adoption of the new Labour Code.

Article 6. The Committee notes the Government’s statement that the new draft Labour Code, which is currently under preparation, will include a provision specifically prohibiting employers from limiting in any manner the freedom of workers to dispose of their wages. The Committee requests the Government to continue to supply information on all progress made in this direction.

Article 8. Further to its previous comments on this point, the Committee again requests the Government to clarify the meaning of section 79 of the Labour Code which stipulates that deductions can be made from wages for deposits ("consignations") provided for in work contracts.

Articles 12(2) and 13. The Committee notes from the Government’s report that the new draft Labour Code is expected to reproduce the provisions of sections 67 and 68 of the former Code of 1975 concerning the final settlement of all wages due in the event of the termination of the contract of employment as well as the payment of wages at the workplace and on working days only. The Committee hopes that the Government will supply concrete information in its next report on the progress made in this respect. Furthermore, the Committee asks the Government to specify whether the ministerial order regarding the forms and procedures for the payment of wages, referred to in section 73 of the Labour Code, has been issued, and if so, to supply its text.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and Act No. 94-029 issuing the Labour Code, which was adopted on 4 November 1994. It requests the Government to supply additional information on the following points:

Article 4 of the Convention. The Committee notes that the new Code does not reproduce the provisions of section 67 of the former Code of 1975, which prohibited the payment of wages in the form of liquor or alcoholic drinks, as well as the payment of wages in kind, except in cases where the employer is bound to provide workers on mission with accommodation and foodstuffs. It requests the Government to indicate the measures which have been taken or are envisaged to ensure the prohibition of the payment of wages in liquor or alcoholic drinks and the regulation of the partial payment of wages in kind, in accordance with this Article.

Articles 6 and 8. The Committee notes that there is no provision prohibiting the employer from limiting the freedom of the worker to dispose of his wages. It also notes that deductions from wages are permitted not only by attachment orders or voluntary assignment, as stated by the Government, but also, in accordance with section 79 of the new Code, through compulsory deductions established by the regulations in force and by deposits which may be provided for in collective agreements and contracts. The Committee requests the Government to indicate the measures which have been taken to ensure that the freedom of the worker to dispose of his wages is not limited, especially in the context of deposits provided for in contracts.

Articles 12(2) and 13. The Committee notes that section 73 of the Code only partially reproduces the provisions of former section 68. For example, the clause providing for payment in the event of the termination of the contract is no longer in the new Code. The Committee requests the Government to provide information on the measures that have been taken to ensure the final settlement of the wages due upon the termination of the contract of employment and to ensure that the wages are paid at the workplace and on working days only. It requests the Government to supply the text of the ministerial order determining, under the terms of section 73(2) of the Code, the forms and procedures for the payment of wages.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 8 of the Convention. The Committee noted from the Government's last report that under section 74 of the Labour Code deductions can be made from wages for deposits ("consignations") provided for in work contracts. It requests the Government to provide detailed information on the above-mentioned deposits.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 8 of the Convention. The Committee noted from the Government's last report that under section 74 of the Labour Code deductions can be made from wages for deposits ("consignations") provided for in work contracts. It requests the Government to provide detailed information on the above-mentioned deposits.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 8 of the Convention. The Committee notes from the Government's report that under section 74 of the Labour Code deductions can be made from wages for deposits ("consignations") provided for in work contracts. It requests the Government to provide detailed information on the above-mentioned deposits.