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

Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

Discussion by the Committee

Chairperson – The third case we will discuss today on our agenda is Madagascar on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). For this case we have 13 speakers registered, that means that there will be speaking time as foreseen, and it will not be reduced.

Government representative – Concerning the 2022 observations of the Committee of Experts, the Government has noted them all and we are going to provide some explanations regarding the observations relating to Convention No. 87, which was ratified by Madagascar in 1960.

Concerning the observations of the Randrana Sendikaly Alliance – which alleges the arrest and conviction to 12 months’ imprisonment of one of their members belonging to the Syndicalisme et Vie des Sociétés (SVS) union – the Government would like to provide the following clarification.

The company which employed the trade union delegate filed a complaint for conduct which was inappropriate, insulting or invasive of privacy. This case did not go through the Ministry of Labour but the enterprise immediately filed a complaint with the Criminal Court of Madagascar. A court decision was handed down at the outcome of the proceedings with regard to these accusations of conduct which was inappropriate, insulting or invasive of privacy. The Ministry of Labour could not interfere with this decision of the Criminal Court of Madagascar.

Even so, we would like to point out that, during the inquiries that we carried out further to this summons from the Committee, the trade union delegate had placed a post on Facebook which was public, not just addressed to the members of the union, concerning information from a meeting which the enterprise had held with staff delegates and union delegates. This relates to the first observation of the Committee of Experts.

Regarding the Autonomous Trade Union of Labour Inspectors (SAIT), labour inspectors with their union held talks with the Government. The Government provided the labour inspectors with four vehicles so that they could perform their duties. We are in a phase of equipping the labour inspectors with six additional vehicles, and over the last three years nine buildings have been constructed for the labour inspectorate to enable inspectors to do their work.

The Government has also pledged to pay the equivalent of about €100 per labour inspector to already move forward in improving inspectors’ salaries and conditions of work. This allowance has not yet been paid but we hope that we will soon be able to pay inspectors the equivalent of this sum.

Regarding the third observation concerning the Christian Confederation of Malagasy Trade Unions (SEKRIMA), the Government has made a great deal of effort to ensure that the unions can now exercise their rights.

With regard to Article 3 on the representativeness of workers’ organizations, we are at the stage of preparing the Order on representativeness. This Order will surely be published this month (June 2023). Last week we already held a meeting with all the unions operating in Madagascar and so we are awaiting the publication of this Order on representativeness.

As regards the maritime sector, in particular the workers governed by the Maritime Code, it should be noted that Madagascar has just ratified the Maritime Labour Convention, 2006, as amended (MLC, 2006). The President of the Republic will come next week to deposit the instrument of ratification adopted by the National Assembly and the Senate last week.

Regarding the last observation of the Committee of Experts on the right of workers’ organizations to organize their activities and formulate their programmes, we would like to inform the Committee that the Government and the social partners are currently engaged in the reform of the Labour Code. This has necessitated several consultation sessions. It is now over two years since we have consulted and worked with the National Labour Council to ensure the reform of the Code which was presented at the level of the Government. We are therefore waiting for the approval of the Government for the text to be submitted to the National Assembly and the Senate.

So these are the initial remarks and observations of the Government of Madagascar concerning the observations made by the Committee of Experts in 2022.

Worker members – We are discussing the case of Madagascar today to cast light on an extremely worrying situation. Furthermore, I would like to state that the Worker members regret that the discussion is occurring in the absence of a Workers’ delegate.

Despite the previous observations that the Committee of Experts has addressed to the Government, the latter has not always taken follow-up action. This is the case with the remarks concerning the complaints of the SAIT, which refer to the violation of the right of unions to organize their activities.

We note that the Government still does not provide details on how it guarantees the right of trade unions to organize their administration and activities. Even though it claims that its legislation ensures the protection of freedom of association, it seems to us that conformity with the Convention must be not only in law but also in practice. With regard to the complaints and issues that we continue to raise, we are bound to observe that this is far from being the case. This applies particularly to the right of seafarers to establish and join unions.

I will also mention the situation concerning the elections for staff delegates. The legal provisions enabling them to be organized exist but are without effect. The Government indicated to the Committee of Experts that “certain factors” prevent them from being organized. Even more seriously, the trade unions and more particularly the General Federation of Workers Unions of Madagascar (FISEMA) have been confronted with decisions of the Ministry of Labour which unilaterally modified the names of the representatives in a series of organizations. This attitude demonstrates total contempt for the independence and autonomy of trade unions, which the Government nevertheless claims to defend.

Let us also refer to the existence of a compulsory arbitration procedure which makes it possible to put an end to a collective dispute. We note with astonishment the explanation given by the Government, which is reproduced in the report of the Committee of Experts. It merely indicates that disputes and strikes cause problems for society, workers and the economy. It does not appear to realize that disputes and disagreements are inherent in the functioning of societies. Nor does it appear to realize that arbitrarily putting an end to these disputes is the best way to fuel them and make them resurface with even more vigour.

Allow me now to come onto what for us has been the most brutal blow dealt by the Government to freedom of association in our country. On 28 August 2022, the trade unionist Sento Chang was sentenced to 12 months in prison. For what crime? What did he do to deserve such punishment? He was accused of breaching the confidential nature of a meeting and taking part in causing unrest among the workers. Specifically, Sento Chang informed his work colleagues via the social media of various trade union issues which had been discussed with the management. In particular this was about trade union elections, the need for the Food Committee to voice its concerns about the poor quality of food following reports referring to food past its use-by date, the training of workers on the role of the labour inspectorate, and the fact that the employer was required to approve and not refuse workers’ right to holidays, leave days and sick leave, which are protected by labour law.

We are not asking the Ministry of Labour to get involved in the criminal proceedings but to ensure, as the Government, that trade union activities are not criminalized. Whatever you think of the workers’ claims, whether or not you find them acceptable, human decency implies that the right of Sento Chang to exercise freedom of association must be defended. It is unacceptable for somebody to end up in prison because of unfounded accusations whose only purpose is to flout the exercise of a fundamental right.

Employer members – By way of background, Madagascar ratified the Convention in 1960, as we have heard. While there have never been discussions of the implementation of this Convention by Madagascar in the Committee, no less than 18 observations in this regard have been issued by the Committee of Experts since 1991.

At the political level since gaining independence from France in 1960, Madagascar has experienced repeated bouts of political instability, including coups, violent unrest and disputed elections. The most recent coup in 2009 led to five years of political deadlock, international condemnation and economic sanctions. After a decade of political turbulence, a new President took office in January 2019.

At the economic level, after experiencing one of the worst recessions in its history, due to the COVID-19 pandemic, Madagascar’s economy recovered slowly in 2021 and 2022. The country’s fragility was aggravated by multiple climate shocks as well as by the inflationary pressures linked to the aggression in Ukraine.

Coming to the heart of the discussion in this Committee, the Committee of Experts identified in essence four main issues: alleged anti-union acts in the maritime sector; the right to form and join trade unions for seafarers; issues related to the representativeness of worker’s organizations; and issues related to compulsory arbitration and the requisitioning of striking workers.

On the first of these issues, the Employer members would like to recall that the Committee of Experts previously urged the Government to ensure that an independent enquiry that was conducted into anti-union acts in the maritime sector was concluded as soon as possible. In its 2022 observation, the Committee of Experts noted that the Government had only provided a brief reference to the above-mentioned enquiry, while it mentioned that the Ministry of Transport and Meteorology was organizing a meeting with the General Maritime Union of Madagascar, to address the conflict between the union and enterprise in the maritime sector. In this regard, the Employer members would like to request the Government to clarify whether the meeting with the union has taken place and if so, to provide detailed information on its outcome as well as on the outcome of any meeting concerning allegations of anti-union acts in the maritime sector.

On the second issue, we take note that according to the Government’s indications, fundamental rights and freedoms of seafarers were taken into account in the preparation of the draft Maritime Code. Here the Employer members would like to know from the Government if the Maritime Code has been adopted in the meantime and if so, whether it contains specific provisions providing for the right of seafarers to form and join trade unions. We further request the Government to transmit a copy of the Maritime Code if it has been adopted.

On the third issue, the Employer members take note of the Government’s indication that it is left to the workers to organize the elections for staff representatives and to forward the results to the Ministry of Labour and Social Legislation. We request the Government to provide more specific information on the kind of factors that have prevented the holding of elections for staff representatives since 2015 and whether these factors have been overcome in the meantime.

We further note the allegations of FISEMA, according to which, when appointing workers’ representatives to the boards of directors and management committees of three institutions in the area of social security and health, the Ministry of Labour unilaterally changed the names of the representatives who were to sit on the boards and committees. We request the Government to provide its comments on the union’s allegations.

As regards the fourth and last issue, which concerns comments by the Committee of Experts on the provisions of the Labour Code, providing for compulsory arbitration and the requisitioning of striking workers in the event of disruption of public order, the Employers wish to point out that this relates to the right to strike and therefore falls outside the scope of the Convention. The Employer members will therefore not comment on this point and, in line with current practice, it will not be covered in the conclusions of the case. This concludes our intervention on Madagascar and we look forward to hearing the views of the other participants.

Government member, Sweden – I speak on behalf of the European Union (EU) and its Member States. The candidate countries Albania, Bosnia and Herzegovina, North Macedonia, Republic of Moldova, Montenegro, and the EFTA country Norway, member of the European Economic Area, align themselves with this statement. The EU and its Member States are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights, the right to organize, and freedom of association. We actively promote the universal ratification and implementation of fundamental international labour standards, including Convention No. 87. We support the ILO in its indispensable role to develop, promote and supervise the effective implementation of ratified international labour standards and of fundamental Conventions in particular.

The EU and its partners in eastern and southern Africa, among them Madagascar, are currently negotiating to deepen the existing Economic Partnership Agreement. Given the positive results generated by the current agreement, the partners have declared their readiness to move beyond trade in goods towards a more comprehensive agreement. It is our expectation that the Government will urgently bring its law and practice in accordance with the Convention, before the expanded Economic Partnership Agreement is ratified and implemented. The EU remains open to a genuine dialogue based on mutual respect on these and other topics of interest.

We are deeply concerned at a number of challenges to the human rights situation in Madagascar, which involves a further worsening of labour rights, including the allegation of imprisonment of a trade union leader for engaging in trade union activities. We echo the request of the Committee of Experts to the Government of Madagascar to provide its comment on this very serious allegation and to take all necessary measures to ensure that workers and employers may exercise freely the right to organize. Additionally, we note that the Government has yet not responded to the 2021 observations of the SAIT alleging the violation of the right of trade unions to organize their activities We urge the Government to do so without further delay.

In addition, we continue to support the Committee’s call urging the Government to conduct an independent inquiry on anti-union acts in the maritime sector. Clarifications are needed on whether the meeting with the Ministry of Transport and the General Maritime Union of Madagascar (SYGMMA) has been concluded, and its eventual outcome. Further clarifications are also needed on the new Maritime Code to be adopted and whether it contains specific provisions providing for the right of seafarers to form and join trade unions.

We observe violations of Article 3 of the Convention and are deeply concerned at the serious allegation of interference by public authorities in the appointment of representatives in boards and committees of social partners’ organizations. Workers’ and employers’ organizations have the right to elect their representatives in full freedom, including the organization of their administrations. The EU and its Member States call upon the Government to supply full information on the allegations and rulings by the Council of State.

We fully share the call of the Committee of Experts in respect of the Government’s responsibility to ensure that the rights provided for in the Convention are respected both in law and in practice. Furthermore, we request the Government to provide information on the measures taken to ensure the implementation of the Labour Code and its implementing order. In order to align national legislation with the provisions of the Convention, we urge the Government to avail itself of ILO technical assistance as soon as possible. The EU and its Member States will continue to monitor the situation closely. We recall the importance of ILO support, including technical assistance, in facilitating compliance with all ratified ILO Conventions and the promotion of tripartism.

Worker member, Botswana – As workers in Botswana, we align to the freedoms provided by the Convention with full recognition that workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. The enjoyment of these fundamental rights and freedoms is unattainable without ensuring that the public authorities refrain from any interference which would restrict these rights or impede their lawful exercise.

Therefore, we have noted with concern undue failures to register and recognize trade unions in Madagascar with a deliberate intention to avert the enjoyment of the tenets of the Convention by trade unions and by extension the workers in Madagascar. Of course, industrial harmony is imperilled when freedom of association is denied and undermined.

ILO standards dictate that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in applicable international standards and we urge the Government to comply in full with ILO standards.

In 2018 Botswana appeared before this Committee and one of the violations included was failure to recognize trade unions. The country has since engaged federations and employers’ organizations to bring its laws into conformity with ILO standards because an infringement of fundamental freedoms is a serious indictment with regard to the rights of the workers and indeed the democratic credentials of any country. We will urge the Government of Madagascar to take a leaf out of Botswana’s book as regards practice within the African peer review mechanism.

The Committee of Experts has expressed its concern on this case and has expertly urged the Government to comply with the dictates of the Convention. We fully align ourselves with the call from the Committee and urge the Government to fully comply without any undue delay.

We reiterate our call for the Government to ensure conformity with ILO labour standards to guarantee enjoyment of freedom of association by workers. This should also be done in practice through registration and recognition of affected trade unions.

Worker member, South Africa – It is prudent that the Government of Madagascar understands its ratification of the Convention. We raise this matter given that the Government of Madagascar continues to interfere in the affairs of trade unions. The Government wants to dictate how trade unions must manage their affairs and who should represent them in statutory bodies in the country.

The Committee of Experts noted the submissions by trade unions that in 2019, when appointing worker representatives to the boards of directors and management committees of the National Social Insurance Fund, the Antananarivo Inter-Enterprise Health Organization and the Inter-Enterprise Medical Association of Antananarivo, the Ministry of Labour and Social Legislation unilaterally changed the names of the representatives who were to sit on the boards and committees. FISEMA, one of the trade unions, successfully challenged the interference in the Council of State, which issued three rulings in its favour in 2021 and 2022, but the Government remained adamant.

The right of workers to choose their representatives is protected by this Convention and cannot be said to exist if that right is not fully respected in law and in practice, not just as window dressing but as a fundamental principle.

Trade unions elect or appoint their leaders to a strategic position to enhance the rights of their members. This is in line with the trade unions’ constitutions. It is the right of workers to elect and deploy their members into strategic positions based on the unions’ needs following their internal processes. The Government should not interfere in such matters. If there are any challenges with the persons appointed, the Government must engage with the unions concerned rather than imposing its own representatives.

In South Africa we have a tripartite structure called Nedlac (National Economic Development and Labour Council). All trade union federations have a seat, and those who sit there are deployed by their respective organizations. Trade union leaders are nominated to serve on boards of parastatals and companies without the Government interfering as to who should serve in which board or company. It is the prerogative of the trade union to elect or nominate a leader to serve in the interest of the said union.

I invite the Government and its social partners to visit the Republic of South Africa and learn how we manage our social dialogue. Our Government does not interfere with trade union appointments in parastatals and other bodies in which we are required to participate.

Worker member, Spain – We note the report of the Committee of Experts requesting 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 to a process of arbitration and that the arbitration award ends the dispute and the strike. Section 228 of the Labour Code provides for the possibility of suspending a workers’ strike in the event of disruption of public order. The Committee noted with regret that the Government’s reply merely indicated that prolonged disputes and strikes caused difficulties for society, workers and the economy. The Government’s reply shows that it does not wish to comply with the Convention with regard to the right to strike. The right to strike is the only influence that workers can exert to defend their interests. The Committee on Freedom of Association declared that striking is a right and established the basic principle underlying this right as the main means by which workers and their associations can legitimately promote and defend their economic and social interests. In Madagascar this right is being unilaterally withheld through compulsory arbitration. This is contrary to the Convention. According to the principles, the right to strike can only be restricted or prohibited 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. In such situations, employees may be forced to resort to compulsory arbitration. We reiterate the principle that arbitration should be voluntary. If there is no agreement to resort to arbitration, workers should exercise their right to strike without interference from employers or the Government. We also note that the right to strike is provided for in article 33 of the Constitution of Madagascar. It states that “the right to strike is a fundamental right of workers” and provides that “the right to strike is recognized without prejudice to the continuity of public service or the fundamental interests of the nation”. This in itself is another source of problems. This wording is too loose and needs to be made more specific.

Observer, Building and Wood Worker’s International (BWI) – On behalf of BWI and in solidarity with trade union leader Mr Sento, who was arrested and sentenced to a 12-month prison term, I make this intervention regarding the application of the Convention by the Government of Madagascar.

Freedom of association is a right – it is not a crime, and yet, trade union leaders are imprisoned for exercising that right. The arrest of Mr Sento is an example of a worrying trend we see worldwide of criminalizing basic trade union activities. Mr Sento merely did his duty as an elected representative by informing his members concerning the results of meetings held with the management of an enterprise in the textile sector.

However, the State used his way of communicating through Facebook as a ground for applying the Criminal Code for publishing confidential business information, even though he removed the post as soon as he was requested to do so. This is just one of many examples of a growing trend of not dealing with labour disputes in an appropriate dispute settlement but using the criminal law system, to arrest and deter leaders of the trade union movement from performing their duties. We condemn the criminalization of collective bargaining.

Madagascar, as an ILO Member State, is obliged to respect the rights of trade unions in line with the Convention, which provides for the right of trade unions to conduct activities and organize. Hence we recall the Government’s responsibility to ensure that the rights to freedom of association and organizing are provided for and should not only be respected and protected in law but also in practice.

Observer, IndustriALL Global Union – I am speaking on behalf of IndustriALL Global Union and our affiliates in Madagascar, the Federation of Autonomous Industrial Workers’ Union (FESATI), SEKRIMA, the Federation of Trade Unions of Workers in Free Trade and Textile Companies (SEMPIZOF), and Syndicalisme et Vie des Sociétés (SVS), on violations of ILO Convention No. 87, the country’s Constitution, and the Labour Code of the country.

In previous years, FESATI had raised the issue of anti-union collusion between employers and the Government of Madagascar. This behaviour was evident when employers refused to recognize a trade union and violated workers’ rights.

This time, we call attention to the sentencing of a trade unionist for carrying out his union responsibilities at the workplace, which is protected by international labour standards and the national Labour Code.

Therefore, IndustriALL Global Union joins the SVS in calling attention to the unjust imprisonment of trade union representative Sento Chang, who spent nine months at the detention centre in Antananarivo, which as far the global community is concerned is among the worst in the world, over a post on Facebook regarding working conditions at the garment factory where he worked as a machinist.

Sento Chang was subjected to an unfair trial that concluded in a record 48 hours under a hostile judge, who apparently colluded with the company lawyer. Furthermore, an appeal against the judgment was never heard and the judge ignored the fact that the duties of the trade union representative are enshrined in the Madagascar Labour Code. For justice to prevail, we call for a judicial review of the sentence and for his full reinstatement.

The employers and the Government must engage with trade unions instead of violating fundamental rights. It is through constructive dialogue that working conditions and industrial relations can and must be improved, without intimidation and without threat of imprisonment. Even though Sento Chang was released on 30 May, it is important to note that the Government of Madagascar has violated fundamental rights of a trade union representative, and contrary to Conventions Nos 87 and 98, as well as Malagasy law itself. Consequently, it is imperative that the Government of Madagascar adopts immediate corrective measures to ensure the full respect of fundamental workers and trade union rights, and the fair conduct of the judicial system.

Observer, International Trade Union Confederation (ITUC) – Malagasy workers face a number of obstacles to their enjoyment of the rights provided for in the Convention. The report of the Committee of Experts reveals a lot about the situation in the country. Our colleague Mr Sento, a trade union delegate, was imprisoned for 12 months for exercising his right to freedom of association.

This conviction followed the publication on Facebook of the results of collective bargaining meetings held with the enterprise E-Toile SA, Antananarivo, of which he is an employee. Part of his sentence was reduced by presidential pardon, leaving him with nine months’ imprisonment. Mr Sento’s lawyers filed an application for provisional release and an appeal on 6 September 2022, in relation to the verdict handed down on 31 August 2022, but the appeal was not heard before his release from prison on 30 May 2023 and has not been heard to date.

We wonder why his case has deviated from normal judicial procedures in our country, where defendants are granted provisional release pending appeal. Moreover, the lawyer was not notified of his sentence until 17 April 2023, so Mr Sento has effectively been arbitrarily detained.

The workers of Madagascar condemn the use of criminal law in purely occupational and trade union matters, and particularly in matters of collective bargaining. Workers’ representatives have the right to use technology to disseminate information to their members, and should not be criminalized for doing so. I recall that the principle of freedom of association protects workers’ representatives from interference in their communication with their members, but this right has been violated.

In addition, the Government also interferes with the nomination of workers’ representatives to public institutions in which we are required to participate. In 2019, the Ministry of Labour unilaterally changed the names of the representatives who were to sit on the Social Funds Management Board. This is an act that is repeated. The court declared the Government’s action illegal. This was yet another example of direct interference in the selection of workers’ representatives.

Workers, who are the victims, do not obtain adequate remedies. The Ministry of Labour does not take prompt action to settle disputes and, in some cases, protects unscrupulous employers by authorizing the dismissal of trade union and employee representatives.

I appeal to this Committee to provide technical assistance to my country to help the Government resolve these problems.

Government representative – Regarding the case of FISEMA, which was referred to several times just now, we would like to provide some clarification with regard to the proposals of names of persons who are to sit on social security bodies. We wish to provide clarification because it is a member organization of FISEMA which caused the names to be put forward by some of their members. After the various judicial decisions which have been handed down, new nominations have been made since 2022 to respond to these remarks of the Committee of Experts.

We would also like to point out that last year, for example, it was FISEMA which represented the workers’ unions at the 110th Session of the Conference. Regarding the case of Mr Sento, we would like to provide some clarification, already given by the ITUC observer. A presidential decree for a reduction of sentence was issued in favour of Mr Sento, who was released last month. Nevertheless, the Government would like to point out that it respects the separation of powers and the independence of the judiciary. The Government guarantees this separation of powers but, despite everything, after several appeals from the different unions, the President adopted this decree reducing the sentence by three months.

We have noted all the remarks made by those who have taken the floor during this Committee session. The Government also notes the Committee’s concern and requests it to note the efforts which it has made, including through the ratification of the MLC, 2006, for the maritime workers as well as the reform of the Labour Code, which has necessitated several years of consultation through the National Labour Council, consultations with the social partners, employers’ organizations and workers’ organizations alike. Several rounds of consultation have taken place, in particular expanded consultations; even the unions who have not been declared representative have been consulted for this reform of the Labour Code.

Lastly, the Government reserves the right to provide many more clarifications on the remarks which have been made today; the capacity for replying to these observations could be endless. In conclusion, the Government reaffirms its request for technical assistance in order to try to contribute to improving the application of the Convention.

Employer members – We would like to stress the importance of compliance with the Convention and the need for the Government to fully align its law and practice with the Convention. In light of the discussions and what we have heard, the Employer members would request the Government to provide: detailed information on the outcome of any meeting concerning allegations of anti-union acts in the maritime sector; information on any developments on the new Maritime Code; and specific information on the factors that have prevented the holding of elections for staff representatives since 2015.

Worker members – We invite the Government to take the necessary steps to ensure that the new Maritime Code guarantees to seafarers the right to form and join unions freely. The Worker members also invite it to organize as quickly as possible elections enabling workers’ representatives to be designated. It is also essential that it avoids interfering in trade union activities in the future, in particular in the processes for appointing their representatives within the different organizations. Moreover, the procedures which allow a labour dispute to be ended through arbitration must be abolished.

The case of Sento Chang must be the subject of thorough examination so that no union representative’s activity is criminalized. I repeat: we are not asking the Ministry of Labour to get involved in the court proceedings but to ensure, as the Government, that trade union activities are not criminalized. To this end, we invite the Government to take the necessary steps to ensure that the criminal law provisions which might obstruct the exercise of trade union rights are abolished.

We urge the Government to agree to be guided by the supervisory bodies, in particular the Committee of Experts, so that its legislation is perfectly in line with the Convention in law and in practice. We therefore invite it to accept ILO assistance in the form of a direct contacts mission.

The Government’s attention should be drawn to the fact that we are aware of the stakes involved and the challenges facing the country. We are aware of the challenges, whether economic, social or those related to the effects of natural disasters. But we would like the Government to understand that the trade union movement and respect for its autonomy are not obstacles to development. Quite the contrary. The country has an abundance of natural resources but it can only benefit from them fully if it guarantees workers their rights, in particular the most fundamental ones.

Conclusions of the Committee

The Committee took note of the oral information provided by the Government and the discussion that followed.

The Committee noted with concern the long-standing issues relating to the restrictions on trade union activities in the maritime sector, the absence of any elections for staff representatives since 2015 and the use of compulsory arbitration.

The Committee expressed its deep concern regarding the imprisonment of Mr Zotiakobanjinina Fanja Marcel Sento and noted the Government information regarding his release by Presidential decree.

Taking into account the discussion of the case, the Committee urges the Government to:

- take all necessary steps in order to ensure that the new Maritime Code guarantees to seafarers the right to freely establish and join the organizations of their own choosing without previous authorization;

- organize as soon as possible the elections for the designation of workers’ representatives;

- refrain from intervening in the activities of workers’ and employers’ organizations, including in the designation process of their representatives in the various social dialogue bodies;

- ensure that unilateral recourse to compulsory arbitration as a way to avoid free and voluntary collective bargaining is employed only in very limited circumstances and take the necessary measures to amend sections 220, 225 and 228 of the Labour Code to bring them into conformity with the Convention;

- immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento;

- refrain from using the criminal law to target trade unionists;

- amend all provisions of the Criminal Code hindering the right to freedom of association of workers and employers; and

- provide a copy of the Maritime Code once adopted and detailed information to the Committee of Experts before 1 September 2023 on the outcome of any meeting concerning allegations of anti-union acts in the maritime sector, on any developments on the adoption of the Maritime Code and on the factors that have prevented the holding of elections for staff representatives since 2015.

The Committee requests the Government to avail itself of ILO technical assistance.

Government representative – The Government of Madagascar notes the conclusions of this Committee and thanks it for them.

Nevertheless, the Government would like to point out that, as was said during the discussion, the rule of law prevails in Madagascar and the Government guarantees the separation of powers and the independence of the judiciary.

We would also like to draw the Committee’s attention to the second point in the Committee’s conclusions that the Government already held elections relating to union representativeness in 2018 and 2022. A report describing this progress will be provided to the Committee by September 2023.

Furthermore, we would like to state that during this session of the Committee there has been visible progress in relation to the rights of maritime workers since Madagascar has just ratified the MLC, 2006, and at this time a Bill issuing the Maritime Code is being prepared.

The reform of the Labour Code is at the stage of being finalized and subject to reading by the Government, with the collaboration and consultation of the social partners.

Lastly, the Government of Madagascar requests the Committee to note that additional efforts will be made to apply Convention No. 87, and it reiterates its request for ILO assistance.

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

Previous comments

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2023, and the observations of the Randrana Sendikaly Alliance, received on 30 September 2023, which relate to issues examined in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2023 on the application of the Convention by Madagascar, during which it noted with concern the long-standing issues relating to the restrictions on trade union activities in the maritime sector, the absence of any elections for staff representatives since 2015 and the use of compulsory arbitration. The Committee expressed its deep concern regarding the imprisonment of Mr Zotiakobanjinina Fanja Marcel Sento and noted the Government’s information regarding his release by Presidential Decree. Taking into account the discussion of the case, the Committee urged the Government to:

• take all necessary steps in order to ensure that the new Maritime Code guarantees to seafarers the right to freely establish and join the organizations of their own choosing without previous authorization;
• organize as soon as possible the elections for the designation of workers’ representatives;
• refrain from intervening in the activities of workers’ and employers’ organizations, including in the designation process of their representatives in the various social dialogue bodies;
• ensure that unilateral recourse to compulsory arbitration as a way to avoid free and voluntary collective bargaining is employed only in very limited circumstances and take the necessary measures to amend sections 220, 225 and 228 of the Labour Code to bring them in conformity with the Convention;
• immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento;
• refrain from using the criminal law to target trade unionists;
• amend all provisions of the Criminal Code hindering the right to freedom of association of workers and employers; and
• provide a copy of the Maritime Code once adopted and detailed information to the Committee of Experts before 1 September 2023 on the outcome of any meeting concerning allegations of anti-union acts in the maritime sector, on any developments on the adoption of the Maritime Code and on the factors that have prevented the holding of elections for staff representatives since 2015.

The Conference Committee also recommended that the Government avail itself of the technical assistance of the Office to ensure full compliance with its obligations under the Convention.

The Committee notes with deep regret that the Government has not submitted the report requested under the Convention. The Committee considers that the absence of information in this regard indicates not only an apparent lack of action by the Government to follow-up on these recommendations, but also an apparent lack of commitment to ensure compliance with its standards-related obligations. The Committee urges the Government to take, without delay, all the above-mentioned measures which the Conference Committee requested the Government to take, and which require immediate action, and to report any progress achieved in the implementation of these measures.The Committee also urges the Government to avail itself of the technical assistance of the Office to ensure full compliance with its obligations under the Convention.

Trade union rights and civil liberties. The Committee noted the Government’s indications that the trade unionist Mr Zotiakobanjinina Fanja Marcel Sento had been released. However, the Committee notes with deep concern that he has been reimprisoned following a decision of the Court of Appeal of Madagascar dated 16 June 2023. The Committee deplores the treatment of Mr Sento, who is accused of having posted on Facebook the results of meetings held with the management of an enterprise in the textile sector, which was in the performance of his trade union duties. In these circumstances, the Committee wishes to firmly recall that the resolution adopted by the Conference in 1970 concerning trade union rights and their relation to civil liberties reaffirms the essential link between civil liberties and trade union rights, which was already emphasized in the Declaration of Philadelphia (1944), and enumerates the fundamental rights that are necessary for the exercise of freedom of association, which include: the right to freedom and security of person and freedom from arbitrary arrest and detention; freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontier; and the right to a fair trial by an independent and impartial tribunal (see the 2012 General Survey on the fundamental Conventions, paragraph 59). In the same way as the Conference Committee, the Committee urges the Government to take the necessary steps to immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee previously noted that a new Maritime Code was to be adopted and requested the Government to ensure that the Code provides for the right of seafarers to establish and join trade unions. The Committee urges the Government to provide a copy of the Code once adopted, and to indicate the specific provisions providing for the right of seafarers to establish and join trade unions.

Articles 2 and 3. Right to organize and free exercise of trade union activities. In its previous comments, the Committee noted the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) on allegations of restrictions on the right to organize, and especially the right of trade unions to organize their management and training activities, and on the difficulties encountered in establishing trade unions. The Committee notes the observations of the ITUC, deploring the fact that the Government’s current legislation does not fully guarantee the right to organize, and that the legal provisions on elections of staff representatives are ineffective. 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 urges the Government to provide the information due on the measures taken to ensure the effective application of sections 136 et seq. of the Labour Code, as well as Decree No. 2011-490 and its implementing order No. 28968-2011 providing for the promotion of trade union rights in the country.

Restrictions on trade union activities in the maritime sector. The Committee previously requested the Government to provide information on the initiatives taken to put an end to the conflict between the General Maritime Union of Madagascar (SYGMMA) and an enterprise in the port sector (see Case No. 3275 of the Committee on Freedom of Association, which concerns SYGMMA and for which replies have long been awaited from the Government). The Committee urges the Government to provide any relevant information on the possibility for SYGMMA to freely exercise its activities in the port sector.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously requested the Government to provide specific information on the factors that have prevented the holding of elections for staff representatives since 2015, and to provide its comments on the serious allegations of the General Confederation of Workers’ Unions of Madagascar (FISEMA) concerning the unilateral changing of the names of its representatives by the Government. The Committee takes note of the observations of the Randrana Sendikaly Alliance that the Ministry of Labour: (i) refused to validate the staff representative election results in favour of the Alliance in an enterprise in the sugar industry; (ii) encourages candidates who are not members of trade union organizations to occupy trade union posts; and (iii) unilaterally appointed new administrators in the National Social Welfare Fund. The Committee requests the Government to respond to these allegations and to provide specific information on any issues relating to the holding of elections for staff representatives.

Compulsory arbitration. The Committee requested the Government to take the necessary measures to amend sections 220, 225 and 228 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, and for the possibility of requisitioning striking employees in the event of disruption of public order. The Committee is once again bound to repeat its previous request and urges the Government to take the necessary measures to amend articles 220, 225 and 228 of the Labour Code, and to communicate any new developments in this regard.

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

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.

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

The Committee notes the observations made by the Autonomous Trade Union of Labour Inspectors (SAIT), received on 15 March 2021, alleging the infringement of the right of trade unions to organize their activities under Article 3 of the Convention. The Committee requests the Government to provide its comments in this respect.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

The Committee notes the observations of the International Trade Union Confederation (ITUC) and of the Confederation of Malagasy Workers (CTM), received on 25 September and 26 October 2017, respectively, on the application of the Convention in practice, and notes the Government’s comments in this regard. The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA), received on 20 September 2017, 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 requests the Government to provide its comments on the observations of SEKRIMA.

Restrictions on trade union activities in the maritime sector. In its previous comments, the Committee urged the Government to ensure that the independent inquiry conducted into anti-union acts in the maritime sector is concluded as soon as possible. The Committee notes that no information has been provided by the Government in this regard. The Committee therefore reiterates its previous request and once again urges the Government to ensure that the independent inquiry is concluded as soon as possible and to communicate the findings thereof.

Legislative matters

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 hoped that the right of seafarers to establish and join trade unions would be recognized. The Committee notes the Government’s indication that a roadmap on the adoption of the Maritime Code has been established and received the approval of the tripartite partners. The Committee also notes that a plan of action has been adopted to put into practice the efforts of the Malagasy Government to comply with the provisions of the Convention, and that the Maritime Code that will soon be adopted will take this plan into account. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of the Maritime Code as proposed or adopted, and to ensure that the Code establishes the right of seafarers to establish and join trade unions.

Article 3. Representativeness of workers’ and employers’ organizations. In its previous comments, the Committee noted the adoption of Decree No. 2011 490 on employers’ and workers’ organizations and representativeness and asked the Government to provide information on its application and its impact on the determination of the employers’ and workers’ organizations that participate in social dialogue at the national level. The Committee notes the Government’s indication that the Decree is to be implemented in several phases, the first of which is the holding of elections for staff delegates at the enterprise level. The Committee notes that, according to the Government, the election process began in 2014, but was slowed down by the adoption of Order No. 34-2015 on the determination of trade union representativeness, as an appeal was lodged to set aside the result of the elections. The Committee notes the Government’s indication that, in early 2017, the Council of State (CE) issued a decision rejecting the appeal, and that the process to determine representativeness was relaunched. Moreover, the Committee notes the Government’s indications that a tripartite meeting on the issues of representativeness and the composition of the National Labour Council (CNT) was held on 10 November 2017. Lastly, the Committee notes that a new ministerial order (Decree No. 2017-843), which envisages the optimization of the CNT and tripartite labour councils with a view to facilitating the determination of employers’ and workers’ representativeness, has been adopted. The Committee requests the Government to provide information on any progress made in the election of staff delegates at the enterprise level and on the application and impact from such election in the determination of the employers’ and workers’ organizations that participate in dialogue at the national level.

Right of workers’ organizations to organize their activities and formulate their programmes. Compulsory arbitration. In its previous comments, the Committee requested the Government to take all necessary measures to amend sections 220 and 225 of the Labour Code, which provide that if mediation fails, the collective dispute is referred by the Minister of Labour and Social Legislation to a process of arbitration and that the arbitral award ends the dispute and the strike. The Committee recalled that, in a collective dispute, a compulsory arbitration order is acceptable only where strikes may be 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 and in the event of an acute national crisis. The Committee also asked the Government to take the necessary measures to amend section 228 of the Labour Code on the requisitioning of striking employees, so as to replace the concept of the disruption of public order by the concept of acute national crisis. The Committee notes the Government’s indication that a compilation of the Committee’s observations, in relation to the requested legislative amendments, has been made so that it can be transmitted to the CNT for examination and adoption. The Committee encourages the Government to take all the necessary measures to amend sections 220 and 225 of the Labour Code on arbitration, as well as section 228 of the Labour Code on requisitioning, in order to bring them into conformity with the above principles, and to provide information on any progress made in this regard.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the International Trade Union Confederation (ITUC) and of the Confederation of Malagasy Workers (CTM), received on 25 September and 26 October 2017, respectively, on the application of the Convention in practice, and notes the Government’s comments in this regard. The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA), received on 20 September 2017, 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 requests the Government to provide its comments on the observations of SEKRIMA.

Restrictions on trade union activities in the maritime sector. In its previous comments, the Committee urged the Government to ensure that the independent inquiry conducted into anti-union acts in the maritime sector is concluded as soon as possible. The Committee notes that no information has been provided by the Government in this regard. The Committee therefore reiterates its previous request and once again urges the Government to ensure that the independent inquiry is concluded as soon as possible and to communicate the findings thereof.

Legislative matters

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 hoped that the right of seafarers to establish and join trade unions would be recognized. The Committee notes the Government’s indication that a roadmap on the adoption of the Maritime Code has been established and received the approval of the tripartite partners. The Committee also notes that a plan of action has been adopted to put into practice the efforts of the Malagasy Government to comply with the provisions of the Convention, and that the Maritime Code that will soon be adopted will take this plan into account. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of the Maritime Code as proposed or adopted, and to ensure that the Code establishes the right of seafarers to establish and join trade unions.

Article 3. Representativeness of workers’ and employers’ organizations. In its previous comments, the Committee noted the adoption of Decree No. 2011 490 on employers’ and workers’ organizations and representativeness and asked the Government to provide information on its application and its impact on the determination of the employers’ and workers’ organizations that participate in social dialogue at the national level. The Committee notes the Government’s indication that the Decree is to be implemented in several phases, the first of which is the holding of elections for staff delegates at the enterprise level. The Committee notes that, according to the Government, the election process began in 2014, but was slowed down by the adoption of Order No. 34-2015 on the determination of trade union representativeness, as an appeal was lodged to set aside the result of the elections. The Committee notes the Government’s indication that, in early 2017, the Council of State (CE) issued a decision rejecting the appeal, and that the process to determine representativeness was relaunched. Moreover, the Committee notes the Government’s indications that a tripartite meeting on the issues of representativeness and the composition of the National Labour Council (CNT) was held on 10 November 2017. Lastly, the Committee notes that a new ministerial order (Decree No. 2017-843), which envisages the optimization of the CNT and tripartite labour councils with a view to facilitating the determination of employers’ and workers’ representativeness, has been adopted. The Committee requests the Government to provide information on any progress made in the election of staff delegates at the enterprise level and on the application and impact from such election in the determination of the employers’ and workers’ organizations that participate in dialogue at the national level.

Right of workers’ organizations to organize their activities and formulate their programmes. Compulsory arbitration. In its previous comments, the Committee requested the Government to take all necessary measures to amend sections 220 and 225 of the Labour Code, which provide that if mediation fails, the collective dispute is referred by the Minister of Labour and Social Legislation to a process of arbitration and that the arbitral award ends the dispute and the strike. The Committee recalled that, in a collective dispute, a compulsory arbitration order is acceptable only where strikes may be 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 and in the event of an acute national crisis. The Committee also asked the Government to take the necessary measures to amend section 228 of the Labour Code on the requisitioning of striking employees, so as to replace the concept of the disruption of public order by the concept of acute national crisis. The Committee notes the Government’s indication that a compilation of the Committee’s observations, in relation to the requested legislative amendments, has been made so that it can be transmitted to the CNT for examination and adoption. The Committee encourages the Government to take all the necessary measures to amend sections 220 and 225 of the Labour Code on arbitration, as well as section 228 of the Labour Code on requisitioning, in order to bring them into conformity with the above principles, and to provide information on any progress made in this regard.

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

The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) set out in a communication received on 2 June 2015. The Committee observes that SEKRIMA refers in particular to a number of dismissals for strike action, the imprisonment of four workers of the Antsirabe urban community who took strike action for the non-payment of several months’ wages, and alleged unequal treatment of first-level unions affiliated to SEKRIMA during the declaration of existence procedure. The Committee requests the Government to send its comments on the matters raised by SEKRIMA. The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Restriction on trade union activities in the maritime sector. With regard to the independent inquiry conducted into anti-union acts in the maritime sector, the Committee notes the information from the Government to the effect that with the re establishment of the rule of law after the crisis in Madagascar, the inquiry will be resumed. Observing that it has been raising this matter with the Government since 2008, the Committee urges the Government to ensure that the abovementioned independent inquiry is concluded as soon as possible and to communicate the findings thereof.

Legislative matters

Article 2 of the Convention. Workers governed by the Maritime Code. With regard to the exclusion from the scope of the Labour Code of workers governed by the Maritime Code and the absence from the Maritime Code of sufficiently clear and precise provisions to ensure the right of the workers to whom it applies to establish and join trade unions, the Committee notes that the Government indicates that: (i) a draft Maritime Code has been prepared; (ii) the draft establishes the right of seafarers to establish and join trade unions, and related rights; and (iii) the adoption of the Maritime Code requires the involvement of a number of institutional bodies. While noting that a new Maritime Code is to be adopted shortly, the Committee expresses the firm hope that the right to organize of seafarers will be recognized in the near future, both in law and in practice.

Article 3. Representativeness of workers’ and employers’ organizations. Noting that section 137 of the Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level “shall be established on the basis of evidence provided by the organizations concerned and the labour administration”, the Committee requested the Government to take steps to ensure that representativeness is determined in a procedure affording full guarantees of impartiality, carried out by an independent body having the confidence of the parties. The Committee notes that the Government reports the adoption, on 6 September 2011, following a favourable opinion from the National Labour Council, of Decree No. 2011-490 on employers’ and workers’ organizations and representativeness. The Committee observes that according to the Decree the following are deemed representative: (i) at enterprise level, the trade unions in the enterprise that obtain at least one staff delegate in occupational elections; (ii) at sectoral, regional or national levels, the trade unions obtaining at least 10 per cent of all the staff delegates elected at the level concerned. The Committee also observes that the same Decree provides that the criteria of representativeness applying to employers’ organizations are: (i) the number of enterprises directly or indirectly affiliated; (ii) the size of the staff of the enterprise; (iii) the contributions paid to social security bodies; and (iv) geographical presence. The Committee further observes that according to the Decree, for the criteria to apply there must be agreement among the employers’ organizations. While noting with interest the objective nature of the criteria set in Decree No. 2011-490, the Committee requests the Government to provide information on the practical effect given to the Decree and its impact on the determination of the employers’ and workers’ organizations that participate in social dialogue at national level.

Compulsory arbitration. The Committee requested the Government to take the necessary steps to amend sections 220 and 225 of the Labour Code which provide that if mediation fails, the collective dispute is referred by the Minister in charge of labour and social legislation to a process of arbitration and that the arbitral award ends the dispute, as well as any strike that may have been started in the meantime. The Committee notes that, according to the Government, this observation will be studied by the National Labour Council. The Committee recalls that, in a collective dispute a compulsory arbitration order is acceptable only where strikes may be 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 and in the event of an acute national crisis. The Committee, therefore, requests the Government once again to take all necessary measures to amend the provisions of the Labour Code that concern arbitration so as to align them with this principle.

Requisitioning. In order to limit the risk of interference by public authorities in the affairs of employers’ and workers’ organizations, in accordance with Article 3 of the Convention, the Committee requested the Government to take the necessary steps to amend section 228 of the Labour Code on the requisitioning of striking employees, so as to replace the notion of disruption of the public order by the notion of acute national crisis. The Committee notes that the Government indicates that this observation will be studied by the National Labour Council. The Committee requests the Government once again to take all necessary steps to amend section 228 of the Labour Code on requisitioning in order to align it with the principle set out above.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee takes note of the observations provided by the Christian Confederation of Malagasy Trade Unions (SEKRIMA) in a communication received on 30 August 2013 and by the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE) in a communication received on 31 October 2014. The Committee requests the Government to provide its comments on the issues raised.

The Committee takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.

The Committee requests the Government to provide in its next report the findings of the independent investigation that the Government indicates is under way concerning the anti-union acts in the maritime sector, and any action taken on these findings.

Legislative matters. In its previous comments, the Committee noted that Act No. 2003-044 of 28 July 2004 issuing the Labour Code did not take into account the Committee’s comments on several issues of non-conformity with the Convention. The Committee notes the Government’s indication in its report that the Committee’s comments will be transmitted to the National Labour Council so that it can carry out an analysis of the Labour Code and take the appropriate measures. The Committee hopes that amendments will soon be made to the Labour Code and that they will take due account of the comments that it has been making for several years. The Committee recalls that its comments concern the following points.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee previously noted that the Labour Code maintains the exclusion from its scope of workers governed by the Maritime Code, and that the Maritime Code does not contain sufficiently clear and precise provisions ensuring the right of the workers to whom it applies to establish and join trade unions, as well as the related rights. Furthermore, the Committee noted that the Maritime Code of 2000 was being revised and that a draft new Code including new provisions guaranteeing seafarers the right to establish and join trade unions, as well as all the related rights, had been presented in August 2008. The Committee requests the Government to take the necessary measures to ensure that this right is recognized in the legislation.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously noted that section 137 of the Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level “shall be established with the elements provided by the organizations concerned and the labour administration”. The Committee requests the Government to avoid any interference by the public authorities in the decision concerning the representativeness of occupational organizations and to take measures to ensure that this decision is made by an independent body having the confidence of the parties according to a procedure that offers full guarantees of impartiality.

Compulsory arbitration. The Committee previously noted that, under sections 220 and 225 of the Labour Code, in the event of the failure of mediation, the collective dispute shall be submitted by the ministry responsible for labour and social legislation either to a contractual arbitration procedure, in accordance with the collective agreement between the parties, or to the arbitration procedure of the competent labour court. The arbitration award is final and without appeal and brings an end to the dispute, including any strike that has been called in the meantime. In this regard, the Committee recalls that recourse to arbitration to end a collective dispute is acceptable only if it is at the request of both parties involved in the dispute and/or in the case of a strike in essential services in the strict sense of the term. The Committee requests the Government to take all necessary measures to amend the provisions of the Labour Code concerning arbitration based on the above principle.

Requisitioning. The Committee previously noted that section 228 of the Labour Code provides that the right to strike “may be limited by requisitioning only in case of the disruption of public order or where the strike would endanger the life, safety or health of the whole or part of the population”. The Committee recalls that the reference to cases of “acute national crisis”, rather than to the notion of the disruption of public order, would better reflect the position of the ILO supervisory bodies and could moreover lead to the repeal of section 21 of Act No. 69-15 of 15 December 1969, which provides for the possibility of requisitioning workers in the event of the proclamation of a state of national necessity. The Committee requests the Government to take necessary measures to that end.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

In its previous comments, the Committee requested the Government to provide its observation in reply to the comments made by the International Trade Union Confederation (ITUC) in August 2008 concerning restrictions on the exercise of freedom of association under a Decree of 2000 requiring trade unions to provide the list of their members, interference by the authorities in the appointment of worker representatives to tripartite bodies and violations of trade union rights in the maritime sector. The Committee notes that, according to the Government’s report, solutions were found to these matters and that a draft decree on trade union organization and representativeness currently being drafted should allow all problems to be resolved. Furthermore, the Committee notes the ITUC’s comments dated 24 August 2010 concerning the legislative matters already raised by the Committee, as well as restrictions on the right to strike imposed on state employees. The Committee requests the Government to provide in its next report: (i) its observations in reply to the ITUC’s new comments; (ii) information on the adoption of the decree on trade union organization and representativeness and, if applicable, a copy of the text adopted; and (iii) the findings of the independent investigation that the Government indicates is under way concerning the anti-union acts in the maritime sector, and any action taken on these findings.

Legislative matters. In its previous comments, the Committee noted that Act No. 2003-044 of 28 July 2004 issuing the Labour Code did not take into account the Committee’s comments on several issues of non-conformity with the Convention. The Committee notes the Government’s indication in its report that the Committee’s comments will be transmitted to the National Labour Council so that it can carry out an analysis of the Labour Code and take the appropriate measures. The Committee hopes that amendments will soon be made to the Labour Code and that they will take due account of the comments that it has been making for several years. The Committee recalls that its comments concern the following points.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee previously noted that the Labour Code maintains the exclusion from its scope of workers governed by the Maritime Code, and that the Maritime Code does not contain sufficiently clear and precise provisions ensuring the right of the workers to whom it applies to establish and join trade unions, as well as the related rights. Furthermore, the Committee noted that the Maritime Code of 2000 was being revised and that a draft new Code including new provisions guaranteeing seafarers the right to establish and join trade unions, as well as all the related rights, had been presented in August 2008. The Committee requests the Government to take the necessary measures to ensure that this right is recognized in the legislation.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously noted that section 137 of the Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level “shall be established with the elements provided by the organizations concerned and the labour administration”. The Committee requests the Government to avoid any interference by the public authorities in the decision concerning the representativeness of occupational organizations and to take measures to ensure that this decision is made by an independent body having the confidence of the parties according to a procedure that offers full guarantees of impartiality.

Compulsory arbitration. The Committee previously noted that, under sections 220 and 225 of the Labour Code, in the event of the failure of mediation, the collective dispute shall be submitted by the ministry responsible for labour and social legislation either to a contractual arbitration procedure, in accordance with the collective agreement between the parties, or to the arbitration procedure of the competent labour court. The arbitration award is final and without appeal and brings an end to the dispute, including any strike that has been called in the meantime. In this regard, the Committee recalls that recourse to arbitration to end a collective dispute is acceptable only if it is at the request of both parties involved in the dispute and/or in the case of a strike in essential services in the strict sense of the term. The Committee requests the Government to take all necessary measures to amend the provisions of the Labour Code concerning arbitration based on the above principle.

Requisitioning. The Committee previously noted that section 228 of the Labour Code provides that the right to strike “may be limited by requisitioning only in case of the disruption of public order or where the strike would endanger the life, safety or health of the whole or part of the population”. The Committee recalls that the reference to cases of “acute national crisis”, rather than to the notion of the disruption of public order, would better reflect the position of the ILO supervisory bodies and could moreover lead to the repeal of section 21 of Act No. 69-15 of 15 December 1969, which provides for the possibility of requisitioning workers in the event of the proclamation of a state of national necessity. The Committee requests the Government to take necessary measures to that end.

Sanctions in the event of strike action. The Committee previously noted that, under section 258 of the Labour Code, the “instigators and leaders of illegal strikes” shall be punished by a fine and/or imprisonment. The Committee recalls that no penal sanctions should be imposed on a worker for having carried out a peaceful strike and that therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed on strikers. The Committee requests the Government to take all necessary measures to ensure that this principle is observed.

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

In its previous comments, the Committee noted the observations made by the International Confederation of Free Trade Unions (ICFTU) in 2006 concerning cases of interference by the authorities in trade union matters, repression of trade unionists who participated in strikes in the public service and impediments to the right to strike in the maritime sector. In its reply, the Government indicates that, with regard to the trade union leader dismissed by the University of Antananarivo for leaving his post, the latter was subject to a disciplinary measure as he did not want to return to his former post following a temporary appointment at the Ministry of the Public Service, Labour and Social Legislation. It was merely a penalty against a public employee who had failed in his professional duties and not a measure against a trade unionist. With regard to disputes in the maritime sector, the Government indicates that it organized a round-table meeting between the parties to the dispute prior to an investigation of the alleged anti-union acts, further to the recommendations of the Committee of Freedom of Association (Case No. 2391). The Committee requests the Government to provide in its next report the findings of the independent investigation into discriminatory practices in the maritime sector and any action taken on these findings.

The Committee notes the comments dated 29 August 2008 of the International Trade Union Confederation (ITUC) concerning legislative matters already raised by the Committee in its previous comments, restrictions on the exercise of freedom of association in export processing zones, the risks of anti-union discrimination under a Decree of 2000 requiring trade unions, among other measures, to provide the list of their members, and interference by the authorities in the appointment of worker representatives to tripartite bodies. The Committee requests the Government to provide its observations in reply to the ITUC’s comments.

Legislative matters. Furthermore, in its previous comments, the Committee noted that Act No. 2003-044 of 28 July 2004 issuing the Labour Code did not take into account the Committee’s comments on several issues of non-conformity with the Convention.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee noted previously that the Labour Code maintains the exclusion from its scope of workers governed by the Maritime Code, and that the Maritime Code does not contain sufficiently clear and precise provisions ensuring the right of the workers to whom it applies to establish and join trade unions, as well as the related rights. It requested the Government to take the necessary measures to ensure that this right is recognized by the legislation and to indicate any measure taken or envisaged in this regard. The Committee notes the Government’s indication in its report that the Maritime Code of 2000 is under revision, that a draft new Code was presented in August 2008 during a workshop and that the draft text includes new provisions guaranteeing seafarers the right to establish and join unions, as well as all the related rights. The Committee notes these indications and requests the Government to provide a copy of the new Maritime Code once it has been adopted.

Article 3. Representativeness of workers’ and employers’ organizations. The Committee noted previously that section 137 of the Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level “shall be established with the elements provided by the concerned organizations and the labour administration”. It indicated that, in order to avoid any interference by the public authorities in the decision regarding the representativeness of occupational organizations, this decision has to be made by an independent body having the confidence of the parties according to a procedure that offers full guarantees of impartiality. The Committee finally noted that a draft Decree on trade unions and representativeness had been submitted to the National Labour Council for discussion. The Government indicates that the draft text in question was not adopted unanimously and that discussions are still continuing on the matter. The Committee requests the Government to indicate any further developments in its next report.

Compulsory arbitration. The Committee noted previously that, under sections 220 and 225 of the Labour Code, in the event of the failure of mediation, the collective dispute shall be submitted by the ministry responsible for labour and social legislation either to a contractual arbitration procedure, in conformity with the collective agreement between the parties, or to the arbitration procedure of the competent labour court. The arbitration award is final and without appeal and brings an end to the dispute, including any strike that has been called in the meantime. In this respect, the Committee emphasized that recourse to compulsory arbitration to end a collective labour dispute is only acceptable if it is at the request of both parties involved in the dispute and/or in the case of disputes in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. It indicated that, with the exception of cases in which it is derived from an agreement between the two parties, an arbitration procedure which gives rise to a final decision bringing an end to a strike constitutes, in sectors other than essential services, interference by the public authorities in the activities of trade unions, in conflict with Article 3 of the Convention. Finally, it requested the Government to take all the necessary measures to amend the respective provisions of the Labour Code. The Government merely indicates that in the event of the failure of mediation it is the responsibility of the mediator (labour inspector or the ministry responsible for labour) to submit the dispute to arbitration. It adds that in certain cases the presence of the authorities in the settlement of disputes is requested by the employer to accelerate the procedure. The Committee therefore once again requests the Government to take the necessary measures to amend the provisions of the Labour Code so as to ensure that recourse to arbitration to bring an end to a collective labour dispute can only be decided upon at the request of both parties and/or in the case of a strike in essential services in the strict sense of the term, that is in services the interruption of which would endanger the life, health or personal safety of the whole or part of the population. Accordingly, the right of workers’ organizations to organize their activities and to formulate their programmes without interference by the public authorities, including the exercise of the right to strike in sectors other than essential services, would be respected in accordance with Article 3.

Requisitioning. The Committee noted previously that section 228 of the Labour Code provides that the right to strike “may only be limited by requisitioning in case of the disruption of public order or where the strike would endanger the life, safety and health of the whole or part of the population”. The Committee indicated that the reference to cases of “acute national crisis”, rather than to the notion of the disruption of public order, would better reflect the position of the ILO supervisory bodies and would moreover lead to the repeal of section 21 of the Act No. 69-15 of 15 December 1969, which provides for the possibility of requisitioning workers in the event of the proclamation of a state of national necessity. Noting the Government’s indication that it has taken due note of its comments, the Committee trusts that the Government will soon report measures to formally amend section 228 of the Labour Code and Act No. 69-15, referred to above, in accordance with the principals recalled in this respect.

Sanctions in the event of strike action. The Committee noted previously that, under the terms of section 258 of the Labour Code, the “instigators and leaders of illegal strikes” shall be punished with a fine and/or imprisonment. The Committee recalls that it should only be possible to impose disciplinary sanctions for strike action in cases where the prohibitions in question are in conformity with the principles of freedom of association and that such sanctions should not be disproportionate to the seriousness of the violations. Nothing that the Government has taken due note of its comments, the Committee requests it to ensure that no penalty of imprisonment nor any other penal sanction may be imposed on workers or trade unionists who organize or participate in a peaceful strike. It requests the Government to indicate any measure adopted in this respect.

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

The Committee takes note of the Government’s report.

The Committee also takes note of the comments made by the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, which concern some legislative issues already raised in the Committee’s previous observation as well as cases of government interference in trade union affairs, repression of trade unionists having participated in a strike in the public sector and impediment of the right to strike in the maritime sector. The Committee requests the Government to respond to the comments of the ICFTU.

Furthermore, the Committee takes note of the enactment of Law No. 2003‑044 of 28 July 2004 enacting the Labour Code. The Committee notes, however, that the process of development and adoption of the Code has not taken into account the issues that it had raised in its last comments and which concern the following.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee notes that the new Labour Code maintains the exclusion of its scope of workers governed by the Maritime Code. The Government indicates that the Committee’s observations concerning trade union rights of seafarers have been communicated to the relevant department and that it will keep the Committee informed of any developments. Recalling that the Maritime Code in its present state does not contain sufficiently clear and precise provisions ensuring workers’ right to form and join trade unions, as well as the pertaining rights, the Committee requests the Government to take the necessary steps to ensure that this right is recognized by the legislation and to keep it informed of any measure taken or envisaged in this regard. Concerning the General Maritime Trade Union of Madagascar (SYGMMA), the Government indicates that it has been legally formed before the public authority and that it is functioning as the other trade unions which have been legally formed. The Committee takes note of this information.

Article 3. 1. Representativeness of employers’ and workers’ organizations. The Committee notes that section 137 of the new Labour Code provides that the representativeness of employers’ and workers’ organizations participating in the national level social dialogue “is established with the elements provided by the concerned organizations and the labour administration”. The Committee recalls that, in order to avoid any interference by the public authorities in the decision regarding the representativeness of professional organizations, this decision has to be made by an independent body having the trust of the parties and according to a process which guarantees impartiality. The Committee notes that a draft decree on trade unions and representativity has been elaborated and that it is presently before the National Work Council for discussion. The Committee requests the Government to keep it informed of developments in this regard.

2. Compulsory arbitration. The Committee notes that according to sections 220 and 225 of the new Code, in case of failure of mediation, the minister in charge of labour and social laws refers a collective dispute either to a contractual arbitration procedure, in conformity with the collective agreement of the parties or to a judicial arbitral procedure before the jurisdiction’s tribunal. The decision, which is final and without appeal, puts an end to the dispute and to any strike which could have started in the meantime. The Committee recalls that the resort to arbitration in order to put an end to a collective dispute can be justified only if it is requested by both parties and/or in case of a strike in essential services in the strict sense of the term, i.e. in services the interruption of which would endanger the life, health or personal security of all or part of the population. The Committee considers that, apart from the case where it stems from an agreement between parties, this arbitration procedure which gives rise to a final decision terminating a strike is, in sectors other than essential services, an interference from the public authorities in trade unions’ organization, conflicting with Article 3 of the Convention. Consequently, the Committee requests the Government to take all necessary measures to amend the new Labour Code in order to ensure the full right of workers’ organizations to organize their activities and formulate their programmes of action without interference from public authorities, notably in the exercise of the right to strike in sectors other than the essential services, in conformity with Article 3.

3. Requisitioning. The Committee further notes that section 228 of the new Code provides that the right to strike “cannot be limited by requisitioning only in cases of public order disruption or in cases where the strike would endanger life, security and health of all or part of the population”. The Committee notes in this respect that the corresponding version of the draft Labour Code (section 199) reflects better the position of the supervisory bodies by referring to cases of “acute national crisis” and not to the notion of public order disruption. Moreover, this version constituted a clear improvement which could lead to section 21 of Law No. 69-15 of 15 December 1969 being repealed. This section provides for the possibility of requisitioning workers in cases of a state proclamation of national necessity. Noting that, according to the Government, the provisions of section 228 of the Code and the law of 15 December 1969 have the same aim, the Committee expresses the hope that section 228 of the new Code – as well as Law No. 69-15 – will be formally modified in accordance with the principles mentioned.

4. Sanctions in case of strike action.  Finally, the Committee takes note that, according to section 258 of the Labour Code, the “initiators and leaders of illegal strikes” shall be punished with a fine and/or imprisonment. The Committee recalls that sanctions should be available in case of a strike only when the ban is in conformity with the principles of freedom of association and that such sanctions are in proportion to the acts committed. While noting that, according to the Government, this provision has never been used, the Committee requests the Government to exclude, in all circumstances, recourse to imprisonment measures against those who have organized or participated in a peaceful strike.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report contains no specific replies to the points it raised in its previous comments on the 2003 draft of the new Labour Code. The Committee hopes that the matters raised in its previous comments have been taken into account in the process of drafting and adopting the Code.

Article 2 of the Convention. The Committee noted that section 109 of the 2003 draft of the new Labour Code reaffirms the right of workers and employers to form organizations of their choosing without prior authorization. The Committee notes, however, that section 239 of the draft provides that the Labour Code will be implemented by decrees and orders issued after consultation with the National Employment Council even where the Code makes no express provision for such instruments. The Committee trusts that these implementing texts will provide effective guarantees of the right of workers to establish occupational organizations without prior authorization, in accordance with Article 2, and requests the Government to send copies of the relevant texts.

Article 3. 1. The Committee noted that section 109 of the draft Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level "shall be established through the elements provided by the organizations concerned and the labour administration". The Committee points out that, in order to prevent interference by the public authorities in decisions as to whether occupational organizations are representative, such decisions should be taken by an independent body which has the confidence of the parties through a procedure that affords every guarantee of impartiality. The Committee hopes that the Government will adopt measures to this end, particularly in the texts implementing the Labour Code.

2. The Committee noted that under sections 191 and 196 of the draft Labour Code, if mediation fails, the collective dispute is submitted by the Ministry of Labour and Labour Law either to a contractual arbitration procedure, in accordance with the collective agreement covering the parties, or to the arbitration procedure of the competent labour tribunal. The arbitration award is final and without appeal. It puts an end to the dispute and to any strike which may have been called in the meantime.

The Committee recalls that recourse to arbitration in order to end a collective dispute is acceptable only if it is at the request of both parties and/or in the event of a strike in essential services in the strict sense, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Consequently, except where the arbitration procedure derives from an agreement between the two parties, the Committee hopes that the Government has taken the necessary steps to guarantee fully the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities, particularly the exercise of the right to strike in sectors other than essential services, in accordance with Article 3.

3. The Committee noted that under section 231 of the draft Labour Code, "instigators and leaders of unlawful strikes" are liable to a fine and/or a prison sentence. The Committee recalls that sanctions for strike action should be possible only where the strike ban is consistent with the principles of freedom of association, and that such sanctions should not be disproportionate to the seriousness of the violations. It accordingly hopes that the Government has excluded in all circumstances recourse to sentences of imprisonment for persons who organize or participate in a peaceful strike.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information supplied by the Government in its report. It takes note of the entry into force of Act No. 2003-011 of 3 September 2003 issuing the General Civil Service Regulations and notes in particular that section 11 of the Act establishes the right to strike of civil servants. It also notes from this information that, in accordance with the usual procedure, the draft Labour Code is being discussed in the Senate before being remanded to the National Assembly for adoption. However, the Committee notes in this connection that the Government’s report on Convention No. 98 indicates that the draft new Labour Code was adopted by Parliament and has been submitted to the Office of the President. The Committee infers from this that the new Labour Code has not yet been promulgated. The Committee asks the Government to provide a copy of the text and to clarify the date on which the new Labour Code will come into force.

Article 2 of the Convention. In its previous observation the Committee noted that the 2003 draft of the new Labour Code maintains the exclusion from its scope of workers covered by the Maritime Code. It also recalled that the current version of the Maritime Code lacks sufficiently clear and precise provisions guaranteeing the workers to whom it applies the right to establish and join trade unions and the related rights. It requested the Government to take the necessary steps to ensure that the Maritime Code affords the workers to whom it applies recognition of their right to organize, and to provide practical information on seafarers’ trade unions including the number of such unions and of their respective members. The Committee takes due note of the Government’s statement in its report that 2004 saw the birth of the first legally constituted national maritime union, grouping together seafarers’ countrywide, the General Maritime Union of Madagascar (SYGMMA), which has more than 1,000 members and whose main role is to group together workers in the maritime sector so as to ensure the collective and individual defence of their interests.

Noting that the Government’s report contains no specific response regarding recognition of the right to organize of workers governed by the Maritime Code, the Committee requests the Government to take the necessary steps to ensure that this right is established in the legislation and to keep it informed on this matter. It also requests the Government to specify the provisions of the law under which SYGMMA was constituted and the provisions governing its working.

Article 3. In its previous observation the Committee noted that section 199 of the draft new Labour Code provides that the right to strike "may be limited by requisitioning only in the event of an acute crises or where the strike would endanger the life, safety or health of the whole or part of the population", and expressed the hope that Act No. 69-15 of 15 December 1969, which allows workers to be requisitioned in the event of proclamation of a state of national necessity or a threat to a sector of national life or a part of the population, would be formally amended to take into account the new provisions of the Labour Code. The Committee notes in this connection that, according to the Government, following promulgation of the new Labour Code, any texts that are not consistent with it will have to take account of the new provisions of the new Labour Code. The Committee requests the Government to keep it informed on this matter.

The Committee raises other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Noting the draft Labour Code, the Committee considers that it would be useful to draw the Government’s attention to the following points so that they can be taken into account during the next stages of the process of preparing and adopting the Code.

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing without previous authorization. In its previous comments, the Committee noted that sections 7 and 11 of the Labour Code that is currently in force provided that the constitution, organization and operation of trade unions would be determined by a decree and that an order would establish the procedures for the exercise of the right to organize. The Committee requested the Government to provide it with copies of the texts governing the procedures for the exercise of the right to organize. The Committee notes the Government’s indication that the work on revising Act No. 94-029 of 25 August 1995 issuing the Labour Code has recommenced following its suspension. It is in this context that the National Employment Council, a tripartite body for dialogue, concertation and negotiation between the social partners, has been established. The Government will provide the Committee in due time with the texts governing the procedures for the exercise of the right to organize.

The Committee takes due note of this information. It notes that the new draft of the Labour Code (section 109), in the same way as the current Code, affirms the right of workers and employers to establish organizations of their own choosing without previous authorization. It also notes that section 239 of the draft text provides that the Labour Code will be implemented by decrees and orders issued after consultation with the National Employment Council, even where such texts are not explicitly envisaged by its provisions. The Committee trusts that these implementing texts will provide effective guarantees of the right of workers to establish occupational organizations without previous authorization, in accordance with Article 2. It requests the Government to keep it informed of the process of the adoption of the new Labour Code and to provide the related texts, including draft implementing texts.

Article 3. Right of workers’ organizations to organize their activities without interference by the public authorities. The Committee notes that section 109 of the draft Labour Code provides that the representativeness of employers’ and workers’ organizations participating in social dialogue at the national level "shall be established through the elements provided by the organizations concerned and the labour administration". The Committee also notes that, in the context of the examination of Case No. 2132 by the Committee on Freedom of Association, the Government referred to the intervention of the labour administration in determining the representativeness of occupational organizations.

The Committee considers that, to prevent any interference by the public authorities in the determination of the representativeness of occupational organizations, such determination must be made by an independent body which has the confidence of the parties on the basis of a procedure affording every guarantee of impartiality. The Committee requests the Government to indicate whether measures have been envisaged for this purpose, particularly in the texts implementing the Labour Code, and to indicate their content.

The Committee notes that under sections 191 and 196 of the draft Labour Code, in the event of the failure of mediation, the collective dispute shall be submitted by the Ministry responsible for labour and labour legislation either to a contractual labour arbitration procedure, in accordance with the collective agreement covering the parties, or to the arbitration procedure of the competent labour tribunal. The arbitration award is final and without appeal. It brings an end to the dispute and to any strike which may have been called in the meantime.

The Committee recalls that recourse to arbitration to bring to an end a collective dispute is only acceptable if it is at the request of both parties and/or in the event of a strike in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. Consequently, with the exception of cases in which the arbitration procedure is derived from an agreement between the two parties, the Committee requests the Government to amend the draft Labour Code so as to guarantee in full the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities, particularly with regard to the exercise of the right to strike in sectors other than essential services, in accordance with Article 3.

Finally, the Committee notes that, by virtue of section 231 of the draft Labour Code, the "instigators and leaders of unlawful strikes" shall be liable to a fine and/or a prison sentence. The Committee recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association and that such sanctions should not be disproportionate to the seriousness of the violations (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 177 and 178). The Committee therefore requests the Government to refrain in all circumstances from having recourse to sentences of imprisonment against persons who organize or participate in a peaceful strike.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report. It also notes that a draft text to revise the Labour Code has been examined by the social partners in the National Employment Council. The Committee also takes due note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2132 (see 331st Report, paragraphs 584-592, and 332nd Report, paragraphs 98-104).

Article 2 of the Convention. Right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. Section 1 of the Labour Code that is currently in force excludes from its scope workers who are covered by the Maritime Code. In its previous comments, the Committee noted that Act No. 99.028 of 3 February 1999, issuing the revised Maritime Code, refers to "seafarers’ trade unions" (section 3.3.02). While also noting that certain rights relating to the right to organize were granted to seafarers, the Committee considered that the legislation should contain specific provisions granting seafarers the right to organize. The Government indicates that the Committee’s observations will be transmitted to the departments concerned and that all relevant information will be forwarded to the Committee in due time.

The Committee notes that the draft Labour Code maintains the exclusion from its scope of workers covered by the Maritime Code (that is, seafarers and other crew members). The Committee also recalls that the current version of the Maritime Code does not contain sufficiently clear and precise provisions guaranteeing the workers to whom it applies the right to establish and join trade unions and the related rights. The Committee therefore requests the Government to take the necessary measures so that the Maritime Code (and even the Labour Code) affords the workers to whom it is applicable effective recognition of their right to organize on an equal footing with other workers whose right to organize is currently guaranteed by the Labour Code. The Committee also requests the Government to provide further information of a practical nature on seafarers’ trade unions, including the number of such trade unions and of their respective members.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities in full freedom without interference by the public authorities. In its previous comments, the Committee noted that the conditions giving rise to the right of requisitioning, as set out in sections 20 and 21 of Act No. 69-15 of 15 December 1969 respecting the requisitioning of persons and goods, are too broad to be compatible with the Convention; the Committee referred in this respect to the possibility of requisitioning workers in the event of the proclamation of a state of national necessity or a threat to a sector of national life or a part of the population. The Committee recalled that requisitioning is to be avoided, except for the maintenance of essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in the event of an acute national crisis. The Committee notes the Government’s indication that it will report any textual changes which improve the application of the Convention.

The Committee also notes with interest that section 199 of the new draft Labour Code provides that the right to strike "may only be limited by requisitioning in the event of an acute crisis or of the strike endangering the life, safety or health of the whole or part of the population". The Committee therefore hopes that Act No. 69-15 of 15 December 1969 will be formally amended to take into account the new provisions of the Labour Code and requests the Government to keep it informed in this respect.

The Committee is also addressing a request directly to the Government concerning certain provisions of the draft Labour Code.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which reads as follows:

1. Right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. The Committee recalls that seafarers are excluded from the scope of the 1993 Labour Code (article 1). However, it noted the information provided by the Government to the effect that Act No. 99.028 of 3 February 1999 revising the Maritime Code referred to "seafarers’ trade unions" in section 3.3.02 and that the reference to "seafarers’ trade unions" in this section confirmed the freedom of association and exercise of trade union rights by seafarers, in accordance with article 31 of the Constitution of 8 April 1998, which provided that "The State recognizes the right of every worker to defend his interests through union activity and in particular through the freedom to form a union." The Committee had already noted that the national legislation granted seafarers certain rights related to the right to organize (the right to conclude collective agreements to determine their wages, section 3.05.03 of the Maritime Code, as amended in 1966; procedures for the settlement of collective disputes and the right to strike after an arbitration award had been contested; Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the merchant marine and its implementing Order No. 3012-DGTOP/SSM of 1970). However, the Committee considers that the legislation should contain specific provisions granting seafarers the right to organize. It therefore requests the Government to take the necessary measures explicitly to guarantee seafarers the right to establish and join trade unions. The Committee also requests the Government to provide a copy in the near future of Act No. 99.028 of 3 February 1999 revising the Maritime Code.

2. Right of workers to establish organizations without previous authorization. The Committee noted the information provided in the Government’s last report to the effect that a revision of Act No. 94.029 of 25 August 1995 issuing the Labour Code was being completed. The Government stated that it would provide copies of any texts relating to the procedures for the establishment, organization and functioning of trade unions once they had been published, after the enactment of the revised Code. The Committee trusts that, in accordance with the requirements of Article 2 of the Convention, all workers, including seafarers, will be able to establish trade union organizations without previous authorization once they have deposited their statutes with the competent authorities. The Committee also requests the Government to provide copies of texts governing procedures for the exercise of the right to organize.

3. Requisitioning of persons. The Committee had noted that the conditions giving rise to the right to requisition, as set out in section 21 of Act No. 69-15 of 15 December 1969 respecting the requisition of persons and goods, which allowed the requisitioning of workers where a sector of national life or a part of the population was endangered, were too broad to be compatible with the principles of freedom of association. It had thereafter taken due note of the proposals made by the Government to amend section 21. The Committee had nevertheless noted that these amendments included certain services, such as garbage collection, radio and television broadcasting, post and telecommunications, banking, whose interruption does not endanger the life, personal safety or health of the population. In the view of the Committee, recourse to requisitioning is to be avoided except where, in particularly serious circumstances, essential services have to be maintained. Requisitioning may be justified by the need to ensure the operation of essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee took due note of the information provided in the Government’s last report to the effect that it would transmit the Committee’s comments to the ministry concerned so that it could take the necessary measures with a view to improving the application of the Convention. The Committee requests the Government to keep it informed of the measures adopted in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report and recalls that its previous observations concerned the following points:

1.  Right of workers, without distinction whatsoever, including seafarers, to establish and join organizations.  The Committee recalls that seafarers are excluded from the scope of the 1993 Labour Code (article 1). However, it notes the information provided by the Government to the effect that Act No. 99.028 of 3 February 1999 revising the Maritime Code refers to "seafarers’ trade unions" in section 3.3.02 and that the reference to "seafarers’ trade unions" in this section confirms the freedom of association and exercise of trade union rights by seafarers, in accordance with article 31 of the Constitution of 8 April 1998, which provides that "The State recognizes the right of every worker to defend his interests through union activity and in particular through the freedom to form a union." The Committee had already noted that the national legislation granted seafarers certain rights related to the right to organize (the right to conclude collective agreements to determine their wages, section 3.05.03 of the Maritime Code, as amended in 1966; procedures for the settlement of collective disputes and the right to strike after an arbitration award has been contested; Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the merchant marine and its implementing Order No. 3012-DGTOP/SSM of 1970). However, the Committee considers that the legislation should contain specific provisions granting seafarers the right to organize. It therefore requests the Government to take the necessary measures explicitly to guarantee seafarers the right to establish and join trade unions. The Committee also requests the Government to provide a copy in the near future of Act No. 99.028 of 3 February 1999 revising the Maritime Code.

2.  Right of workers to establish organizations without previous authorization.  The Committee notes the information provided in the Government’s report to the effect that a revision of Act No. 94.029 of 25 August 1995 issuing the Labour Code is currently being completed. The Government states that it will provide copies of any texts relating to the procedures for the establishment, organization and functioning of trade unions once they have been published, after the enactment of the revised Code. The Committee trusts that, in accordance with the requirements of Article 2 of the Convention, all workers, including seafarers, will be able to establish trade union organizations without previous authorization once they have deposited their statutes with the competent authorities. The Committee also requests the Government to provide copies of texts governing procedures for the exercise of the right to organize.

3.  Requisitioning of persons.  The Committee had noted that the conditions giving rise to the right to requisition, as set out in section 21 of Act No. 69-15 of 15 December 1969 respecting the requisition of persons and goods, which allows the requisitioning of workers where a sector of national life or a part of the population is endangered, are too broad to be compatible with the principles of freedom of association. It had thereafter taken due note of the proposals made by the Government to amend section 21. The Committee had nevertheless noted that these amendments included certain services, such as garbage collection, radio and television broadcasting, post and telecommunications, banking, whose interruption does not endanger the life, personal safety or health of the population. In the view of the Committee, recourse to requisitioning is to be avoided except where, in particularly serious circumstances, essential services have to be maintained. Requisitioning may be justified by the need to ensure the operation of essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee takes due note of the information provided in the Government’s report to the effect that it will transmit the Committee’s comments to the ministry concerned so that it can take the necessary measures with a view to improving the application of the Convention. The Committee requests the Government to keep it informed of the measures adopted in this respect.

The Committee hopes that the Government will take these comments into account in the adoption of the envisaged measures and requests it to keep it informed in its next report of the measures taken in this respect.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information in the Government's report and recalls that its previous observations concerned the following points:

1. The right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. The Committee recalls that the Merchant Shipping Code currently in force lacks any provisions specifically granting seafarers the right to organize. It notes that a restructuring of the Code is nearing completion and that the Government will submit a copy thereof with its next report. The Committee hopes that this restructuring will take account of all rights related to seafarers' right to organize.

2. Requisitioning of persons. The Committee noted that conditions giving rise to the right to requisition, provided for under section 21 of Act No. 69-15 of 15 December 1969 regarding the requisition of persons and goods, which allows the requisitioning of workers in particular where a sector of national life or a part of the population is endangered, are too broad to be compatible with the principles of freedom of association. The Committee recalls that requisition as a means to end a strike is authorized only in the case of essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population or in the case of public servants exercising authority in the name of the State or in the event of an acute national crisis. The Committee takes due note of the proposed modifications to section 21 presented by the Government to allow a fuller application of the Convention. The Committee notes, however, the inclusion of certain services, for example radio and television broadcasting, post and banking, whose interruption does not endanger the life, personal safety or health of the population.

3. The right of workers to establish organizations without previous authorization. The Committee notes that, according to the Government, the constitution, organization and operation of trade unions, and the exercise of the right to organize, are still governed by Ordinance No. 60-133 of 3 October 1960, on associations. The Committee recalls that by virtue of its section 1(1), Ordinance No. 60-133 does not apply to professional associations and trade union organizations. The Committee trusts that in conformity with Article 2 of the Convention, workers will be able to establish trade union organizations without previous authorization, on depositing of their by-laws to the Minister of Labour. It requests the Government to provide copies of such implementing texts of section 7 of the 1995 Labour Code as may have been adopted.

The Committee hopes that the Government will take account of its observations in the adoption of the measures envisaged, and asks to be kept informed, in the Government's next report, of the steps taken in this regard.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

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 matters raised in its previous direct request, which read as follows:

The Committee requests the Government to send the texts implementing Act No. 94-029 (Labour Code), including the Decree to establish the procedures for the constitution, organization and operation of trade unions (Article 7) and the Order establishing the procedures for the exercise of the right to organize (Article 11).

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

1. The right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. The Committee takes due note that the Government specifies in its report that the Christian Federation of Seafarers of Madagascar (FECMAMA), affiliated to the trade union SEKRIMA, effectively represents seafarers. However, the Committee again asks the Government to provide in its next report the text currently in force of the Merchant Shipping Code, since the new Labour Code continues to exclude workers governed by the Merchant Shipping Code (section 1 in fine of the Labour Code). 2. Requisitioning of persons. Recalling that the conditions giving rise to the right to requisition persons set out in Act No. 69-15 of 15 December 1969 are too broad to be compatible with the principles of freedom of association, the Committee notes that the provisions of the above Act have not been amended by the new Labour Code. The Committee again asks the Government to contemplate amending its legislation, particularly sections 20 and 21 of Act No. 69-15, so that it authorizes the Minister to resort to this procedure only to end a strike in essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population, or in the case of public servants exercising authority in the name of the State or in the event of an acute national crisis. The Committee asks the Government to keep it informed of the measures taken or envisaged in this matter.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee is also addressing a direct request to the Government.

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

The Committee requests the Government to send the texts implementing Act No. 94-029 (Labour Code), including the Decree to establish the procedures for the constitution, organization and operation of trade unions (Article 7) and the Order establishing the procedures for the exercise of the right to organize (Article 11).

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

The Committee notes the report of the Government and the entry into force of Act No. 94-029 issuing the Labour Code in 1994. It recalls that its previous observations related to the following points:

1. The right of workers, without distinction whatsoever, including seafarers, to establish and join organizations. The Committee takes due note that the Government specifies in its report that the Christian Federation of Seafarers of Madagascar (FECMAMA), affiliated to the trade union SEKRIMA, effectively represents seafarers. However, the Committee again asks the Government to provide in its next report the text currently in force of the Merchant Shipping Code, since the new Labour Code continues to exclude workers governed by the Merchant Shipping Code (section 1 in fine of the Labour Code).

2. Requisitioning of persons. Recalling that the conditions giving rise to the right to requisition persons set out in Act No. 69-15 of 15 December 1969 are too broad to be compatible with the principles of freedom of association, the Committee notes that the provisions of the above Act have not been amended by the new Labour Code. The Committee again asks the Government to contemplate amending its legislation, particularly sections 20 and 21 of Act No. 69-15, so that it authorizes the Minister to resort to this procedure only to end a strike in essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population, or in the case of public servants exercising authority in the name of the State or in the event of an acute national crisis. The Committee asks the Government to keep it informed of the measures taken or envisaged in this matter.

The Committee is also addressing a direct request to the Government.

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 matters raised in its previous direct request, which read as follows:

The right to organize of public servants. Noting the Government's statement in its report that Act No. 79-014 on the general conditions of service of public servants no longer has any purpose following the repeal of Ordinance No. 76-008 of 1976 to issue regulations respecting political organizations, the Committee requests the Government to supply with its next report the texts which are currently in force governing the right to organize of public servants.

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

The Committee notes the Government's report and recalls that its previous observations related to the following:

1. Right of workers, without distinction whatsoever, including seafarers, to establish and to join organizations. The Committee notes that the Government indicates in its report that the Constitution of 1992 recognizes the right of all workers, without distinction whatsoever, to form trade unions and adds that, since this is a basic text, the provisions are of general scope and apply to seafarers. The Committee, for its part, has read the text of the 1992 Constitution and observes with interest that section 31 indeed provides that the State recognizes the right of all workers to defend their interests by trade union action, and in particular by forming and joining a trade union freely. The Committee has already noted that national legislation gives seafarers certain rights relating to the right to organize (the right to conclude collective agreements to determine their wages, section 3.5.03 of the Maritime Code, as amended in 1966; the procedure for the collective settlement of disputes and the right to strike following an opposition to an arbitration award, Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the Merchant Navy and its implementing Order No. 3012-DGTOP/SSM of 1970). The Committee would be grateful if the Government would send in its next report the text currently in force of the Merchant Shipping Code (since the Labour Code in the process of being drawn up continues to exclude workers governed by the former (section 1)), thus permitting the Committee to determine whether the right to organize for seafarers is indeed recognized.

2. Requisitioning of persons. While noting that the Government indicates in its report that during the period covered by the report it has not exercised the right to requisition persons set out in Act No. 69-15 of 15 December 1969, the Committee nevertheless recalls that the conditions giving rise to the right to requisition persons have too broad a scope to be compatible with the principles of freedom of association. The Committee therefore requests the Government to contemplate amending its legislation, in particular sections 20 and 21 of Act No. 69-15, so that they authorize the Minister to resort to this procedure only to bring to an end a strike in essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole of part of the population, or in the case of public servants exercising authority in the name of the State or in the event of a strike, the extent and duration of which are liable to give rise to an acute national crisis. The Committee requests the Government to keep it informed of the measures taken or envisaged in this matter.

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

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

1. Privileges granted to trade unions belonging to a revolutionary organization. With reference to its previous comments, the Committee notes with interest that Ordinance No. 78-006, of 1 May 1978, issuing the Charter of Socialist Undertakings, which only recognized for workers who were members of trade unions belonging to a revolutionary organization the right to be elected to works committees in the above undertakings, thereby applying a distinction between trade union organizations which is of a nature to jeopardize the rights of workers to join the trade union of their choosing, has been repealed by Ordinance No. 92/029, of 17 July 1992, which repeals the above Charter. 2. Right to organize of seafarers. The Committee reminds the Government that under the terms of the national legislation no provision explicitly recognizes the right to organize of these workers, even though certain rights relating to the right to organize are recognized by the legislation (the right to conclude collective agreements to determine their wages (section 3.5.03 of the Maritime Code, as amended in 1966), the procedure for the collective settlement of disputes and the right to strike following an opposition to an arbitration award (Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the merchant navy and its implementing Order No. 3012-DGTP/SSM of 1970)). In these circumstances, the Committee once again requests the Government to include a provision in its legislation explicitly to guarantee seafarers the right to organize. 3. Requisitioning of persons. The Committee recalls that the conditions giving rise to the right to requisition persons set out in Act No. 69-15, of 15 December 1969, have too broad a scope to be compatible with the principles of freedom of association. Indeed, sections 20 and 21 of this Act empower the Minister to resort to this procedure when a situation of national necessity is proclaimed or in the event of a threat to a sector of economic life in order to safeguard the interests of the nation, whereas requisitioning to bring to an end a strike is only admissible in essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety of health of the whole or part of the population, in the case of public servants acting in their capacity as agents of the public authority or in the event of a strike, the extent and duration of which are liable to give rise to an acute national crisis. The Committee requests the Government to supply information on the cases in which it has requisitioned persons during the period covered by the report and to envisage amending this provision in order to confine its scope to the situations described above. 4. Finally, the Committee is addressing a direct request to the Government concerning the right to organize of public servants.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

The right to organize of public servants. Noting the Government's statement in its report that Act No. 79-014 on the general conditions of service of public servants no longer has any purpose following the repeal of Ordinance No. 76-008 of 1976 to issue regulations respecting political organizations, the Committee requests the Government to supply with its next report the texts which are currently in force governing the right to organize of public servants.

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

1. Privileges granted to trade unions belonging to a revolutionary organization. With reference to its previous comments, the Committee notes with interest that Ordinance No. 78-006, of 1 May 1978, issuing the Charter of Socialist Undertakings, which only recognized for workers who were members of trade unions belonging to a revolutionary organization the right to be elected to works committees in the above undertakings, thereby applying a distinction between trade union organizations which is of a nature to jeopardize the rights of workers to join the trade union of their choosing, has been repealed by Ordinance No. 92/029, of 17 July 1992, which repeals the above Charter.

2. Right to organize of seafarers. The Committee reminds the Government that under the terms of the national legislation no provision explicitly recognizes the right to organize of these workers, even though certain rights relating to the right to organize are recognized by the legislation (the right to conclude collective agreements to determine their wages (section 3.5.03 of the Martitime Code, as amended in 1966), the procedure for the collective settlement of disputes and the right to strike following an opposition to an arbitration award (Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the merchant navy and its implementing Order No. 3012-DGTP/SSM of 1970)).

In these circumstances, the Committee once again requests the Government to include a provision in its legislation explicitly to guarantee seafarers the right to organize.

3. Requisitioning of persons. The Committee recalls that the conditions giving rise to the right to requisition persons set out in Act No. 69-15, of 15 December 1969, have too broad a scope to be compatible with the principles of freedom of association. Indeed, sections 20 and 21 of this Act empower the Minister to resort to this procedure when a situation of national necessity is proclaimed or in the event of a threat to a sector of economic life in order to safeguard the interests of the nation, whereas requisitioning to bring to an end a strike is only admissible in essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety of health of the whole or part of the population, in the case of public servants acting in their capacity as agents of the public authority or in the event of a strike, the extent and duration of which are liable to give rise to an acute national crisis.

The Committee requests the Government to supply information on the cases in which it has requisitioned persons during the period covered by the report and to envisage amending this provision in order to confine its scope to the situations described above.

4. Finally, the Committee is addressing a direct request to the Government concerning the right to organize of public servants.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's report and observes that it does not contain information on the question of the right to organise of seafarers or the requisitioning of persons. In these conditions, it once again draws the Government's attention to these points:

Right to organise of seafarers. The Committee reminds the Government that under the terms of the national legislation no provision explicitly recognises the right to organise of these workers even though certain rights relating to the right to organise are recognised by the legislation (the right to conclude collective agreements to determine their wages (section 3.5.03 of the Maritime Code, as amended in 1966), the procedure for the collective settlement of disputes and the right to strike following an arbitration award (Act No. 70-002 of 23 June 1970 respecting individual and collective disputes in the merchant navy and its implementing Order No. 3012-DGTP/SSM of 1970)).

In these circumstances, the Committee once again requests the Government to include a provision in its legislation explicitly to guarantee seafarers the right to organise.

Requisitioning of persons. The Committee points out that the conditions giving rise to the right to requisition persons set out in Act No. 69-15 of 15 December 1969 have too broad a scope to be compatible with the principles of freedom of association. Indeed, sections 20 and 21 of this Act empower the Minister to resort to this procedure when a state of national necessity is proclaimed or in the event of a threat to a sector of economic life in order to safeguard the interests of the nation, whereas requisitioning to bring to an end a strike is only admissible in essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population, in the case of public servants acting in their capacity as agents of the public authority or in the event of a strike, the extent and duration of which are liable to give rise to an acute national crisis.

The Committee requests the Government to supply information on the cases in which it has requisitioned persons during the period covered by the report and to contemplate amending this provision in order to confine its scope to the situations described above.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee notes with satisfaction the adoption of Act No. 89-028 of 29 December 1989 to amend the Constitution of 31 December 1975 (which repeals sections 9 and 29 of the Constitution on the guiding role of the National Front as regards organisations for the defence of the Revolution) and of Ordinance No. 90-001 issuing general regulations on political parties or organisations, also dated 29 December 1989 (which repeals 0rdinance No. 76-008 of 20 March 1976 to issue regulations respecting political organisations, which obliged trade unions to affiliate with an approved revolutionary organisation).

The Committee notes that, according to the Government, these various changes have the effect of ending the monopoly respecting trade union rights exercised by the revolutionary organisations affiliated to a political party that is a member of the Front and that the exercise of the right to organise is regulated by the Ordinance No. 75-013/DM of 17 May 1975, issuing the Labour Code.

The right to organise of public servants. In this new context, the Committee notes with interest that the situation of public officials as regards the principles of the right to organise has changed, since, under Act No. 79-014 on the general conditions of service of public servants, their trade union organisations could only be established within the framework of Ordinance No. 76-008 of 20 March 1976, which has now been repealed. This Ordinance contained several provisions that were incompatible with the Convention, and in particular sections 8, 9, 24 and 25 which empowered the public authorities to interfere in the trade union affairs of public servants (approval for the establishment of an organisation, control and dissolution of the organisation by administrative authority).

In these circumstances and in view of the fact that the Labour Code of 1975 does not apply to these workers, the Committee requests the Government to supply copies of the provisions which now govern the right to organise of public servants.

Privileges granted to trade unions belonging to a revolutionary organisation. In its previous comments, the Committee noted that the Madagascan trade union movement was made up of trade union organisations established under the former regime and of workers' organisations belonging to, or established voluntarily, in revolutionary associations under the terms of Ordinance No. 76-008 of 20 March 1976. It also noted that Ordinance No. 78-006 of 1 May 1978 issuing the Charter of Socialist Undertakings, only recognised for workers who were members of trade unions belonging to a revolutionary organisation the right to be elected to works committees in the above undertakings, thereby applying a distinction between trade union organisations of a nature to jeopardise the right of workers to join the trade union of their own choosing.

In view of the constitutional changes, the Committee requests the Government to indicate whether the organisations established under the terms of Ordinance No. 76-008 of 20 March 1976, which has now been repealed, still continue to exist, and whether Ordinance No. 78-006 of 1 May 1978 is still in force; if so, the Committee would be grateful if the Government would contemplate repealing this Ordinance in order to abolish any privilege for specific trade union organisations.

The Committee is also addressing a direct request to the Government concerning the right to organise of seafarers and the requisitioning of persons in the event of a strike.