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

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

The Committee notes the observations of the Randrana Sendikaly Alliance, received on 19 October 2022, which are addressed in the framework of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee also notes that the Government has not responded to the 2021 observations of the Autonomous Trade Union of Labour Inspectors (SAIT) alleging anti-union discrimination measures against its members. The Committee once again requests the Government to provide its comments in this respect.

In its previous comments, the Committee noted the Government’s response to the 2015 and 2017 observations of the International Trade Union Confederation (ITUC) and the Christian Confederation of Malagasy Trade Unions (SEKRIMA) alleging acts of anti-union discrimination in various sectors and, emphasizing the persistence of the alleged situation, the Committee requested the Government to continue to provide information in this regard. Noting with regret that the Government has not provided the requested information, the Committee reiterates its request that the Government ensure that all the events reported are the subject of investigation by the public authorities and, if acts of anti-union discrimination have been committed, they will give rise to full compensation for the damage suffered and to the imposition of penalties that constitute an effective deterrent.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee previously requested the Government to provide information on the number of cases of anti-union discrimination examined by the labour inspection services and labour courts, and on the corresponding penalties actually applied by these institutions. The Committee notes the Government’s indication that the labour inspection services categorize cases of anti-union discrimination as labour relations infringements and it does not know the exact number of anti-union discrimination cases examined by the regional labour services and the labour courts. Recalling the fundamental importance of ensuring effective protection against anti-union discrimination, the Committee requests the Government to take the necessary measures to gather the requested information on the number of cases of anti-union discrimination examined by the labour inspection services and the labour courts, as well as the penalties imposed in those cases.

Articles 1, 2, 4 and 6. Public servants not engaged in the administration of the State. In its previous comments, the Committee had underlined the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively their conditions of employment. The Committee notes the Government’s indications that it is currently working on the draft General Statute on Public Servants and the draft General Statute on contractual public employees, which generally provide for equal treatment of civil servants and contractual public employees. The Committee expects that the above-mentioned draft legislation will be adopted in the near future and will contain provisions providing for protection against anti-union discrimination and interference and the right to collective bargaining for all civil servants and public sector employees not engaged in the administration of the State, in accordance with the Convention. The Committee requests the Government to provide information on the progress made in this respect, and recalls that it may avail itself of the technical assistance of the Office, if it so desires.

Article 4. Promotion of collective bargaining.Collective bargaining in sectors subject to privatization. The Committee had previously noted the information provided by the Government on the situation of collective agreements in the energy sector, particularly that of the Malagasy Electricity and Water Company (JIRAMA), the revision of which is reportedly in progress, and the observations of SEKRIMA alleging that privatizations have resulted in the collective agreements in force being discarded. The Committee had therefore requested the Government to take the necessary steps to promote the full use of collective bargaining mechanisms in privatized sectors. The Committee notes that the Government merely indicates that the revision of the JIRAMA collective agreement can be transferred to the competent court. The Committee reiterates its request that the Government take all the necessary steps to promote the full use by the parties concerned of collective bargaining mechanisms in privatized sectors, including the energy sector, and requests the Government to provide information on any progress made in this regard.

Collective bargaining for seafarers. In its previous comments, the Committee had noted that the Labour Code excluded maritime workers from its scope of application and had expressed the expectation that the Government would be able to report shortly the adoption of the new Maritime Code that was due in May 2018; and that the Code would recognize for these workers the rights enshrined in the Convention. The Committee notes that the Government merely indicates that it has drawn up the draft Maritime Code. The Committee also notes that, according to the Government’s report on the Collective Bargaining Convention, 1981 (No. 154), a draft new Labour Code is currently pending adoption. Recalling that the Government has been referring to the draft Maritime Code since 2008, the Committee urges the Government to take the necessary measures to ensure, in the context of the reforms underway, that national legislation contains provisions giving full effect to the Convention in respect of maritime workers. The Committee requests the Government to provide information on any developments in this respect, as well as a copy of the draft Maritime Code and the draft new Labour Code.

Promotion of collective bargaining in practice. The Committee previously requested the Government to provide information on collective bargaining in practice. Noting that the Government has not provided the requested information, the Committee once again asks the Government to provide information in the measures taken to promote collective bargaining and to indicate the number of collective agreements concluded in the country, the sectors concerned and the number of workers covered by these agreements.

In view of the ratification by Madagascar of Convention No. 154 in 2019, the Committee expects that the Government will take concrete measures to promote collective bargaining as requested in the different sections of this comment.

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

The Committee notes the observations from the Autonomous Trade Union of Labour Inspectors (SAIT), received on 15 March 2021, alleging anti-union discrimination measures against its members. 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 made by the International Trade Union Confederation (ITUC) and the Christian Confederation of Malagasy Trade Unions (SEKRIMA) in communications received on 1 and 4 September 2017, respectively, concerning points being examined by the Committee and, according to SEKRIMA, new acts of anti-union discrimination in various sectors (telecommunications, banking, textiles, the salt industry and fishing). The Committee also notes the Government’s comments in reply to the observations made by SEKRIMA in 2015 and by the ITUC in 2015 and 2017. With regard to allegations of anti-union dismissals in the mining sector, the Government indicates that the Council of State of the Supreme Court, in a judgment dated 9 December 2015, ruled in favour of the trade union leader Barson Rakotomanga, suspending implementation of the decision by the Minister for the Public Service, Labour and Social Legislation opposing his reinstatement in the enterprise; and that in other cases the Antananarivo Labour Court ruled that the dismissals of trade union activists were procedurally flawed and therefore gave entitlement to the payment of damages. With regard to another case concerning the situation of two workers at a Malagasy mattress manufacturing company, the Government refers to intervention by the competent services of the labour administration and inspectorate, which resulted in amicable termination of the employment contract in one case and reinstatement in the company in the other case. Emphasizing the persistence of allegations of anti union discrimination in numerous sectors, the Committee requests the Government to continue sending information on this matter. The Committee also requests the Government to ensure that all the events reported are the subject of investigation by the public authorities and, if acts of anti-union discrimination are proven, that these will give rise to full compensation for the damage suffered, in both occupational and financial terms, and to the imposition of penalties that constitute an effective deterrent.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee asked the Government to provide information on the number of cases of anti-union discrimination examined by the labour inspection services and labour courts, and on the corresponding penalties actually applied by these institutions. The Committee notes the Government’s indications that the Ministry of Labour has taken steps to direct the activities of the Regional Labour Services (SRT) to enable the collection of the required data. In this regard, it notes that a suitable report template taking account of data on cases of anti-union discrimination is being prepared by the Inspection Support Service at the Directorate for Labour and Social Legislation and that the reports drawn up in relation to this template will be compiled centrally every six months from 2018 onwards, with a view to analysing them and setting up a database containing reliable information. The Committee hopes that the Government will soon be a position, as a result of these new tools, to provide information on the number of cases of anti-union discrimination examined by the labour inspectorate and the labour courts, and also on the corresponding penalties actually applied by the aforementioned bodies.

Articles 1, 2, 4 and 6. Public servants not engaged in the administration of the State. The Committee recalls that its previous comments were concerned with the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively their conditions of employment. The Committee noted the Government’s indication that contractual public employees, governed by Act No. 94-025 of 17 November 1994, are not covered by specific provisions relating to acts of anti union discrimination or interference or the right to bargain collectively. The Committee notes that, according to the Government, the recommended measures will be taken into account in the context of the future National Public Service Policy (PNFOP) and the revision of the legal framework governing the public service, including texts concerning civil servants and contractual public employees (Act No. 2003-011 of 3 September 2003 issuing the general conditions of service of public servants and Act No. 94-025 of 17 November 1994 issuing the general conditions of service of contractual public employees). While noting this information, the Committee expects that the Government will be in a position in the near future to provide information on the measures taken to clearly recognize the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti union discrimination and interference and their right to bargain collectively their conditions of employment. The Committee reminds the Government that it may avail itself of technical assistance from the Office in this regard.

Article 4. Promotion of collective bargaining. Representativeness criteria. With regard to the implementation of the representativeness criteria determined by Decree No. 2011-490 on trade unions and representativeness, the Committee notes the Government’s indication that an appeal was lodged seeking the cancellation of Order No. 34/2015 determining trade union representativeness for 2014–15. In this regard, the Committee refers to its observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Collective bargaining in sectors subject to privatization. The Committee notes the information provided by the Government on the situation of collective agreements in the energy sector, particularly that of the Malagasy Electricity and Water Company (JIRAMA), the revision of which is reportedly in progress. It notes that information on the Télécom Malagasy (TELMA) company will be provided in due course. The Committee further notes that, according to SEKRIMA, collective bargaining in privatized sectors continues to pose problems, in that the privatization operations have resulted in the collective agreements in force being discarded. Recalling that the restructuring or privatization of an enterprise should not in itself result automatically in the extinction of the obligations resulting from the collective agreement in force and that the parties should be able to take a decision on this subject and to participate in such processes through collective bargaining, the Committee requests the Government to take all necessary steps to promote the full use by the parties concerned of collective bargaining mechanisms in privatized sectors. The Committee hopes that the Government will be in a position in the very near future to report tangible progress in this regard.

Collective bargaining for seafarers. In its previous comments, the Committee noted that the Labour Code excluded maritime workers from its scope of application and requested the Government to take the necessary measures to ensure the adoption of specific provisions guaranteeing the collective bargaining rights of seafarers governed by the Maritime Code. The Committee notes the Government’s reference to a roadmap relating to the ratification of the Maritime Labour Convention, 2006 (MLC, 2006), and to the adoption of the Maritime Code due in May 2018. The Committee expects that the Government will be able to report, in the near future, the adoption of the new Maritime Code and that this Code will make provision for maritime workers to enjoy the rights guaranteed by the Convention.

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

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 made by the International Trade Union Confederation (ITUC) and the Christian Confederation of Malagasy Trade Unions (SEKRIMA) in communications received on 1 and 4 September 2017, respectively, concerning points being examined by the Committee and, according to SEKRIMA, new acts of anti-union discrimination in various sectors (telecommunications, banking, textiles, the salt industry and fishing). The Committee also notes the Government’s comments in reply to the observations made by SEKRIMA in 2015 and by the ITUC in 2015 and 2017. With regard to allegations of anti-union dismissals in the mining sector, the Government indicates that the Council of State of the Supreme Court, in a judgment dated 9 December 2015, ruled in favour of the trade union leader Barson Rakotomanga, suspending implementation of the decision by the Minister for the Public Service, Labour and Social Legislation opposing his reinstatement in the enterprise; and that in other cases the Antananarivo Labour Court ruled that the dismissals of trade union activists were procedurally flawed and therefore gave entitlement to the payment of damages. With regard to another case concerning the situation of two workers at a Malagasy mattress manufacturing company, the Government refers to intervention by the competent services of the labour administration and inspectorate, which resulted in amicable termination of the employment contract in one case and reinstatement in the company in the other case. Emphasizing the persistence of allegations of anti union discrimination in numerous sectors, the Committee requests the Government to continue sending information on this matter. The Committee also requests the Government to ensure that all the events reported are the subject of investigation by the public authorities and, if acts of anti-union discrimination are proven, that these will give rise to full compensation for the damage suffered, in both occupational and financial terms, and to the imposition of penalties that constitute an effective deterrent.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee asked the Government to provide information on the number of cases of anti-union discrimination examined by the labour inspection services and labour courts, and on the corresponding penalties actually applied by these institutions. The Committee notes the Government’s indications that the Ministry of Labour has taken steps to direct the activities of the Regional Labour Services (SRT) to enable the collection of the required data. In this regard, it notes that a suitable report template taking account of data on cases of anti-union discrimination is being prepared by the Inspection Support Service at the Directorate for Labour and Social Legislation and that the reports drawn up in relation to this template will be compiled centrally every six months from 2018 onwards, with a view to analysing them and setting up a database containing reliable information. The Committee hopes that the Government will soon be a position, as a result of these new tools, to provide information on the number of cases of anti-union discrimination examined by the labour inspectorate and the labour courts, and also on the corresponding penalties actually applied by the aforementioned bodies.

Articles 1, 2, 4 and 6. Public servants not engaged in the administration of the State. The Committee recalls that its previous comments were concerned with the need to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively their conditions of employment. The Committee noted the Government’s indication that contractual public employees, governed by Act No. 94-025 of 17 November 1994, are not covered by specific provisions relating to acts of anti union discrimination or interference or the right to bargain collectively. The Committee notes that, according to the Government, the recommended measures will be taken into account in the context of the future National Public Service Policy (PNFOP) and the revision of the legal framework governing the public service, including texts concerning civil servants and contractual public employees (Act No. 2003-011 of 3 September 2003 issuing the general conditions of service of public servants and Act No. 94-025 of 17 November 1994 issuing the general conditions of service of contractual public employees). While noting this information, the Committee expects that the Government will be in a position in the near future to provide information on the measures taken to clearly recognize the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti union discrimination and interference and their right to bargain collectively their conditions of employment. The Committee reminds the Government that it may avail itself of technical assistance from the Office in this regard.

Article 4. Promotion of collective bargaining. Representativeness criteria. With regard to the implementation of the representativeness criteria determined by Decree No. 2011-490 on trade unions and representativeness, the Committee notes the Government’s indication that an appeal was lodged seeking the cancellation of Order No. 34/2015 determining trade union representativeness for 2014–15. In this regard, the Committee refers to its observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Collective bargaining in sectors subject to privatization. The Committee notes the information provided by the Government on the situation of collective agreements in the energy sector, particularly that of the Malagasy Electricity and Water Company (JIRAMA), the revision of which is reportedly in progress. It notes that information on the Télécom Malagasy (TELMA) company will be provided in due course. The Committee further notes that, according to SEKRIMA, collective bargaining in privatized sectors continues to pose problems, in that the privatization operations have resulted in the collective agreements in force being discarded. Recalling that the restructuring or privatization of an enterprise should not in itself result automatically in the extinction of the obligations resulting from the collective agreement in force and that the parties should be able to take a decision on this subject and to participate in such processes through collective bargaining, the Committee requests the Government to take all necessary steps to promote the full use by the parties concerned of collective bargaining mechanisms in privatized sectors. The Committee hopes that the Government will be in a position in the very near future to report tangible progress in this regard.

Collective bargaining for seafarers. In its previous comments, the Committee noted that the Labour Code excluded maritime workers from its scope of application and requested the Government to take the necessary measures to ensure the adoption of specific provisions guaranteeing the collective bargaining rights of seafarers governed by the Maritime Code. The Committee notes the Government’s reference to a roadmap relating to the ratification of the Maritime Labour Convention, 2006 (MLC, 2006), and to the adoption of the Maritime Code due in May 2018. The Committee expects that the Government will be able to report, in the near future, the adoption of the new Maritime Code and that this Code will make provision for maritime workers to enjoy the rights guaranteed by the Convention.

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

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

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

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

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

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

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

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

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

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

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

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in two communications received on 24 August 2011 and 1 September 2014 concerning, inter alia, cases of anti-union discrimination, anti-union dismissals and difficulties in collective bargaining in export processing zones. The Committee requests the Government to provide its comments in this respect.

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 August 2014. 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 must therefore repeat its previous comments.

With regard to the comments concerning the absence of social dialogue in the mining sector and in export processing zones, the Committee notes the Government’s indication that collective bargaining is being developed in the mining sector at the initiative of mining companies and that enterprises in export processing zones participate in the discussions held within the National Labour Council alongside the most representative organizations of employers and workers. The Committee notes the new comments made by the ITUC dated 24 August 2010 that a 2009 survey of the trade union movement revealed that collective agreements were signed mainly in public enterprises and that the privatization process has resulted in most of the collective agreements concluded in sectors such as the rail, telecommunications and energy sectors being obsolete. Furthermore, according to the ITUC, most known cases of anti-union discrimination concern employers in export processing zones where trade union organizations are not well established. Other cases of discrimination are also possible in so far as trade unions are obliged to provide lists of all their members, which, according to the ITUC, paves the way for anti-union practices. The Committee requests the Government to provide its comments in reply to the ITUC’s new observations.

Article 4 of the Convention. Criteria of representativeness. In its previous observation, referring to section 183 of the Labour Code which establishes a number of criteria for determining the representativeness of organizations of employers and workers, the Committee noted the Government’s indication that a draft decree on trade union organization and representativeness could not be adopted by the National Labour Council due to a lack of unanimous support, but that discussions were still being held on the matter. In its latest report, the Government indicates that the draft decree was approved by the National Labour Council in December 2008 and is awaiting adoption by the Council of Ministers. The Committee requests the Government to indicate in its next report any developments relating to the adoption of the decree on trade union organization and representativeness and, if applicable, to provide a copy of the text. It hopes that the text adopted will take into account the principle that trade union representativeness should always be determined according to objective and pre established criteria, so as to avoid any possibility of bias or abuse.

Promotion of collective bargaining. Referring to the provisions of the Labour Code concerning collective bargaining, the Committee previously requested the Government to provide information on the measures adopted to promote collective bargaining in enterprises employing fewer than 50 workers as well as on the collective agreements concluded in these enterprises. The Committee notes that, according to the Government’s report, the National Institute of Labour promotes collective bargaining through awareness raising and the training of staff representatives, trade union delegates and other workers on collective bargaining, particularly on negotiation techniques. The Institute also organizes annual workshops which are well attended by enterprises with fewer than 50 employees (25–30 on average). The Committee notes this information. It requests the Government to provide information on the number of collective agreements concluded in enterprises employing fewer than 50 workers and to indicate the number of workers and sectors covered.

Article 6. Collective bargaining for seafarers. In its previous comments, the Committee noted that the Labour Code excludes maritime workers from its scope and requested the Government to take the necessary steps to ensure the adoption of specific provisions on the collective bargaining rights of seafarers governed by the Maritime Code. The Committee notes that the Government indicates in its report that the Ministry of Labour participated in drawing up the draft new Maritime Code and that the fundamental rights of seafarers have been respected. However, as a result of the political and social crisis, the adoption of the draft Maritime Code by the Council of Ministers has been suspended. The Committee trusts that the draft new Maritime Code will provide that the rights guaranteed by the Convention are extended to maritime workers and hopes that the Government will be able to report its adoption in its next report.

Collective bargaining for public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. In its report, the Government indicates that the Public Service Higher Council (CSFOP) serves as a platform for negotiation and dialogue for public servants not engaged in the administration of the State. All legislative and regulatory texts concerning the public service must be referred for an opinion to the CSFOP, which is composed of an equal number of representatives of the relevant ministerial departments and the most representative trade union confederations. The Government adds that, despite the lack of a specific text, certain decrees implementing Act No. 2003-011 of 3 September 2003 on the general conditions of service of public servants, particularly those laying down the conditions governing travel and remuneration, are applicable to contractual public employees governed by Act No. 94-025 of 17 November 1994. The Committee notes this information, but considers that the situation still creates uncertainty to the legal framework applicable to the collective bargaining of public servants, which could hinder the development of collective bargaining and goes against the requirements of the Convention. It also notes that no measures have been taken to ensure protection against acts of anti-union discrimination and interference in the public sector. The Committee once again requests the Government to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. The Committee trusts that the Government will take the necessary steps to that end and will give an account of the progress made in its next report. Furthermore, the Committee requests the Government to provide a copy of any collective agreement concluded in the public sector.

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)

The Committee notes the Government’s report and the replies provided to the comments made by the International Trade Union Confederation (ITUC) in 2008. With regard to the comments concerning the absence of social dialogue in the mining sector and in export processing zones, the Committee notes the Government’s indication that collective bargaining is being developed in the mining sector at the initiative of mining companies and that enterprises in export processing zones participate in the discussions held within the National Labour Council alongside the most representative organizations of employers and workers. The Committee notes the new comments made by the ITUC dated 24 August 2010 that a 2009 survey of the trade union movement revealed that collective agreements were signed mainly in public enterprises and that the privatization process has resulted in most of the collective agreements concluded in sectors such as the rail, telecommunications and energy sectors being obsolete. Furthermore, according to the ITUC, most known cases of anti-union discrimination concern employers in export processing zones where trade union organizations are not well established. Other cases of discrimination are also possible in so far as trade unions are obliged to provide lists of all their members, which, according to the ITUC, paves the way for anti-union practices. The Committee requests the Government to provide its comments in reply to the ITUC’s new observations.

Article 4 of the Convention. Criteria of representativeness. In its previous observation, referring to section 183 of the Labour Code which establishes a number of criteria for determining the representativeness of organizations of employers and workers, the Committee noted the Government’s indication that a draft decree on trade union organization and representativeness could not be adopted by the National Labour Council due to a lack of unanimous support, but that discussions were still being held on the matter. In its latest report, the Government indicates that the draft decree was approved by the National Labour Council in December 2008 and is awaiting adoption by the Council of Ministers. The Committee requests the Government to indicate in its next report any developments relating to the adoption of the decree on trade union organization and representativeness and, if applicable, to provide a copy of the text. It hopes that the text adopted will take into account the principle that trade union representativeness should always be determined according to objective and pre‑established criteria, so as to avoid any possibility of bias or abuse.

Promotion of collective bargaining. Referring to the provisions of the Labour Code concerning collective bargaining, the Committee previously requested the Government to provide information on the measures adopted to promote collective bargaining in enterprises employing fewer than 50 workers as well as on the collective agreements concluded in these enterprises. The Committee notes that, according to the Government’s report, the National Institute of Labour promotes collective bargaining through awareness raising and the training of staff representatives, trade union delegates and other workers on collective bargaining, particularly on negotiation techniques. The Institute also organizes annual workshops which are well attended by enterprises with fewer than 50 employees (25–30 on average). The Committee notes this information. It requests the Government to provide information on the number of collective agreements concluded in enterprises employing fewer than 50 workers and to indicate the number of workers and sectors covered.

Article 6. Collective bargaining for seafarers. In its previous comments, the Committee noted that the Labour Code excludes maritime workers from its scope and requested the Government to take the necessary steps to ensure the adoption of specific provisions on the collective bargaining rights of seafarers governed by the Maritime Code. The Committee notes that the Government indicates in its report that the Ministry of Labour participated in drawing up the draft new Maritime Code and that the fundamental rights of seafarers have been respected. However, as a result of the political and social crisis, the adoption of the draft Maritime Code by the Council of Ministers has been suspended. The Committee trusts that the draft new Maritime Code will provide that the rights guaranteed by the Convention are extended to maritime workers and hopes that the Government will be able to report its adoption in its next report.

Collective bargaining for public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. In its report, the Government indicates that the Public Service Higher Council (CSFOP) serves as a platform for negotiation and dialogue for public servants not engaged in the administration of the State. All legislative and regulatory texts concerning the public service must be referred for an opinion to the CSFOP, which is composed of an equal number of representatives of the relevant ministerial departments and the most representative trade union confederations. The Government adds that, despite the lack of a specific text, certain decrees implementing Act No. 2003-011 of 3 September 2003 on the general conditions of service of public servants, particularly those laying down the conditions governing travel and remuneration, are applicable to contractual public employees governed by Act No. 94-025 of 17 November 1994. The Committee notes this information, but considers that the situation still creates uncertainty to the legal framework applicable to the collective bargaining of public servants, which could hinder the development of collective bargaining and goes against the requirements of the Convention. It also notes that no measures have been taken to ensure protection against acts of anti-union discrimination and interference in the public sector. The Committee once again requests the Government to adopt formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. The Committee trusts that the Government will take the necessary steps to that end and will give an account of the progress made in its next report. Furthermore, the Committee requests the Government to provide a copy of any collective agreement concluded in the public sector.

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC), dated 29 August 2008, which refer to legislative matters already raised by the Committee in its previous comments, to the fact that trade union rights do not apply to workers in essential services, which include the radio and television broadcasting sectors and the banking sector, and to the absence of social dialogue in the mining sector and export processing zones. The Committee requests the Government to provide its comments in reply to the observations of the ITUC.

Article 4 of the Convention. Determining representativeness. In its previous comments, referring to section 183 of the Labour Code which establishes a number of criteria for determining the representativeness of organizations of employers and workers, the Committee noted the Government’s indication that a draft decree on trade unions and representativeness had been sent to the National Labour Council for debate. In its report, the Government indicates that the draft could not be adopted due to a lack of unanimous support and that discussions are still being held on the matter. The Committee requests the Government to indicate in its next report any developments in this regard and to provide a copy of any text adopted.

Promotion of collective bargaining. Referring to the provisions of the Labour Code on collective bargaining, the Committee previously noted that the Labour Code protects, above all, collective bargaining in enterprises with more than 50 workers. It asked the Government to promote collective bargaining in small and medium-sized enterprises. The Government indicates in its report that no provision actually mentions the compulsory nature of bargaining for enterprises with fewer than 50 workers, but that such bargaining should not give rise to problems since it is in the workers’ interest. The Committee requests the Government to provide information on the measures adopted to promote collective bargaining in enterprises employing fewer than 50 workers as well as on the collective agreements concluded in these enterprises.

Article 6. Collective bargaining for seafarers and public servants. In its previous comments, the Committee noted that the Labour Code excludes public servants and maritime workers from its scope and asked the Government once again to take the necessary steps to ensure the adoption of specific provisions on the collective bargaining rights of seafarers governed by the Maritime Code and of public servants not engaged in the administration of the State. The Committee notes that the Government indicates in its report that the Maritime Code of 2000 is in the process of being revised, that a draft new Code was presented in August 2008 at a workshop, and that this draft includes new provisions guaranteeing the right of seafarers to establish and join trade unions and all related rights. The Committee notes this information with interest and trusts that the draft new Maritime Code will provide that the rights guaranteed by the Convention are extended to seafarers. The Committee requests the Government to provide a copy of the new Maritime Code as soon as it is adopted.

With regard to the right of collective bargaining of public servants not engaged in the administration of the State, the Government indicates that these persons are governed by Act No. 94-025 of 17 November 1994 on the general conditions of service of contractual public employees, and also by Decrees Nos 64‑213 and 64-214 of 27 May 1964, except for those provisions which have been repealed by the Act of 1994. These public servants are connected to the public bodies which employ them only by a precarious contractual link which may be revoked in circumstances arising from the labour regulations and from the provisions of the Act. The general labour regulations therefore apply by extension where other texts concerning these persons are not applied. In any case, the Committee holds the view that the situation as described by the Government is likely to create uncertainty with regard to the legal framework applicable and may therefore hinder the development of collective bargaining within the meaning of the Convention and other trade union activities. The Committee therefore requests the Government to adopt, without delay, formal provisions clearly recognizing the protection of all public servants and public sector employees not engaged in the administration of the State against acts of anti-union discrimination and interference and their right to bargain collectively on their conditions of employment. The Committee trusts that the Government will take the necessary steps in the near future to ensure that the guarantees of the Convention apply to all public servants and public sector employees not engaged in the administration of the State and will give an account of any progress made in this regard in its next report. The Committee requests the Government to provide any collective agreement concluded in the public sector.

The Committee is examining the matter of compulsory arbitration when mediation fails in its observation on the application of Convention No. 87.

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

The Committee takes note of the information in the Government’s report and of Act No. 2003-044 of 28 July 2004 issuing the Labour Code. It also notes the observations of 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU), most of which refer to legislative matters already raised by the Committee in previous comments, and to acts of anti-union discrimination.

Article 4 of the Convention. Determining representativity. 1. With reference to its previous comments, the Committee notes with interest that section 183 of the new Labour Code establishes a number of criteria for determining representativity in respect of organizations of employers and workers. The Committee notes that in its report, the Government states that there should be no ambiguity in determining the representativity of employers’ and workers’ organizations that participate at national level, since a draft text on this matter has been sent to the National Labour Council (CNT) for debate. The Committee requests the Committee to keep it informed on this matter and to provide a copy of the text as soon as it is adopted.

2. Promotion of collective bargaining. The Committee notes the Government’s statement that the Ministry of Labour plans to carry out information and advocacy campaigns in 2006 on the need to organize negotiations, with training for enterprises that have decided to conclude a collective agreement. Noting that the new Labour Code protects collective bargaining above all in enterprises with more than 50 workers, the Committee requests the Government to promote collective bargaining in small and medium-sized enterprises and to keep it informed in this respect.

3. Collective bargaining for seafarers and public employees. In its previous comments, the Committee requested the Government to provide additional information on the provisions applying to collective negotiation of the working conditions of seafarers covered by the Maritime Code and public servants not engaged in the administration of the State, together with data on the number of collective agreements and the number of workers covered.

The Committee notes that, in its report, the Government indicates that the Committee’s comments have been sent to the various departments concerned. The Committee observes that the new Code continues to exclude public servants and maritime workers from its scope (section 1). The Committee recalls that under the Convention, both seafarers and public servants not engaged in the administration of the State must be able to enjoy the right to collective bargaining in the same manner as other categories of workers. It again requests the Government to take the necessary steps to ensure that specific provisions are adopted on the collective bargaining rights of seafarers governed by the Maritime Code and of public servants not engaged in the administration of the State. Please keep the Committee informed on this matter.

4. Compulsory arbitration when mediation fails. The Committee notes that section 220 of the new Code provides that where mediation fails, the collective dispute may be referred by the Minister responsible for labour and social legislation to arbitration by the competent labour tribunal. The Committee reminds the Government that it should be possible to impose compulsory arbitration only in the public service (in connection with public servants engaged in the administration of the State) or in essential services in the strict sense of the term, or in the event of an acute national crisis. The Committee accordingly requests the Government to take the necessary steps to amend the legislation.

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

The Committee notes the information contained in the Government’s report. In particular, it notes that the Government indicates that the draft new Labour Code has been adopted by the Parliament and that it is currently before the Presidency. The Committee notes, however, that the Government’s report submitted for the examination of Convention No. 87 indicates that the draft new Labour Code is currently being debated in the Senate before being referred to the National Assembly for adoption. The Committee therefore assumes that the new Labour Code has not yet been promulgated and requests the Government to provide a copy of the text.

Article 4 of the Convention. 1. The Committee notes that section 109 of the draft new Labour Code, in its 2003 version, provides that the representativity of employers’ and workers’ organizations participating in social dialogue at national level "is established through particulars provided by the organizations concerned and the labour administration". Noting that the wording of section 109, implying active participation by the labour administration in the establishment of criteria of representativity, may give rise to a certain discretion being exercised by the public authorities, the Committee, like the Committee on Freedom of Association in its examination of Case No. 2132, recalls that objective, pre-established and precise criteria to determine the representativity of an organization of employers or workers should exist in legislation, so as to avoid any possibility of bias or abuse and that this assessment should not be left to the discretion of governments (see General Survey on freedom of association and collective bargaining, 1994, paragraph 240, and 331st Report of the Committee on Freedom of Association, paragraph 588). The Committee therefore requests the Government to adopt the necessary measures to review section 109 of the draft new Labour Code so that the representativity of employers’ and workers’ organizations participating in social dialogue at national level is determined according to objective, pre-established and precise criteria such as, for example, the obtaining of a certain percentage in a vote by the employers or workers concerned.

2. The Committee notes that, as with the Labour Code currently in force, section 148 of the draft new Labour Code provides that the conclusion of collective agreements is compulsory where an enterprise normally employs 50 workers. In this regard, the Committee notes that the Government’s report indicates that approximately ten collective agreements are currently in force in Madagascar, most of which relate to large companies employing over 1,000 persons. The Committee therefore requests the Government to indicate what steps it intends to take in the future to promote collective bargaining in enterprises employing fewer than 50 workers.

3. In its previous comments, the Committee invited the Government to provide additional information on the provisions which apply to the collective negotiation of conditions of work for maritime workers governed by the Maritime Code and for public servants not engaged in the administration of the State, as well as information on the number of collective agreements and the number of workers covered. In this regard, the Committee notes that the Government’s report indicates that the General Maritime Trade Union of Madagascar (SYGMAA) was legally constituted in 2004 and that staff not engaged in the administration of the State ("non-established" staff) are not subject to Act No. 2003-011 of 3 September 2003 establishing the conditions of service of public servants and enjoy the right to strike under section 13 of Act No. 94-025 of 17 November 1994 which concerns the conditions of service of "non-established staff of the State". However, the Committee notes that the Government’s report does not contain any information on the provisions concerning seafarers’ right to bargain collectively, and that it indicates that Act No. 94-025 is silent as regards the enjoyment of the right to bargain collectively by "non-established staff of the State", but prohibits discrimination on the grounds of trade union membership and recognizes the necessity of the right to organize and freedom of association for defending collective interests.

The Committee recalls that, under the Convention, both seafarers and public servants not engaged in the administration of the State must be able to enjoy the right to collective bargaining in the same manner as other categories of workers and requests the Government to take the necessary measures to ensure that specific provisions are adopted concerning the collective bargaining rights of seafarers governed by the Maritime Code and of public servants not engaged in the administration of the State.

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

The Committee notes the information contained in the Government’s report.

1. The Committee notes with interest the information supplied by the Government on the measures taken to promote collective bargaining (at present only some 20 collective agreements are in force): organization of regional workshops to make the social partners aware of the importance of bargaining and of collective bargaining procedures; action by the National Centre for Workers’ Education, the body responsible for ongoing training in labour law for trade unionists and workers.

2. The Committee notes the draft Bill to issue the Labour Code (to revise Act No. 94-029 of 25 August 1995 currently in force) which is being debated prior to adoption and which contains several provisions that respond to issues raised by the Committee in its previous comments, or make substantial amendments to the legislation in force, concerning, inter alia:

-  the negotiation of working conditions in enterprises normally employing fewer than 50 workers, negotiation currently being optional in such enterprises;

-  the binding nature of arbitration awards; the Committee points out in this connection that arbitration should be compulsory only at the request of both parties.

The Committee hopes that the above draft Bill will be adopted quickly and asks the Government to provide a copy of it as soon as it is enacted, together with copies of the new implementing texts as soon as they have been adopted.

3. The Committee notes that section 1 of the draft Bill issuing the Labour Code excludes agents of the State who are governed by the General Public Service Statute and workers governed by the Merchant Shipping Code. With regard to sailors, the Committee notes that section 3.3.02 of the Maritime Code provides that the general conditions of recruitment serve as collective agreements and must be stamped (in witness of their legality) by the central administration of the merchant navy following an agreement between the shipowner and representatives of the crew or seafarers’ unions; and that section 3.8.01 of the Code provides for the appointment and protection of delegates on board to defend the crew’s rights. The Committee notes, however, that according to the information supplied by the Government in its report, section 3.3.04(2) of the Code, while opening up the possibility of negotiating collective agreements, makes no provision for bargaining procedures. With regard to public servants, the Committee notes that section 39 of Ordinance No. 93-019 of 30 April 1993 establishing the General Public Service Statute provides for the creation of a central council of the public service, an advisory body which is to give opinions on legislation and any issues pertaining to the public service, and will be a body for dialogue and not negotiation.

While noting the Government’s statement that sailors and public servants are not denied the right to collective bargaining, the Committee recalls that, according to the Convention, like other categories of workers, sailors and public servants not engaged in the administration of the State must have the right to bargain freely, and that according to Article 4 of the Convention the authorities must take appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation of collective agreements between the partners. The Committee therefore invites the Government to provide additional information on the provisions that apply to the collective negotiation of the working conditions of these two categories of workers, together with statistics of the number of collective agreements, the number of workers, etc.

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

The Committee notes the information contained in the Government’s first report. The Committee, however, requests the Government to provide additional information on the following matters.

Article 4 of the Convention. Promotion and voluntary nature of collective bargaining.  1.  The Committee notes that section 53 of Act No. 94.029 of 25 August 1995 issuing the Labour Code provides that when an enterprise normally employs 50 workers, the negotiation of a collective agreement is compulsory. The Committee requests the Government to provide additional information on the provisions governing the negotiation of terms and conditions of employment in enterprises which normally employ fewer than 50 workers, as well as data on the number of collective agreements concluded in the country (making a distinction between enterprises with more than and fewer than 50 workers), the number of workers covered, etc.

2.  The Committee notes that section 179 of Act No. 94.029 of 25 August 1995 issuing the Labour Code provides that, in the event of the failure of mediation, a collective dispute may be submitted to arbitration at the request of either party. The Committee notes that by virtue of this provision, once the process of arbitration has been set in motion, it is impossible to refuse the proposed solution. However, the Committee notes that section 186 permits one or other of the parties to express opposition to the arbitration award. The Committee requests the Government to indicate, in the event of the opposition of one of the parties, whether or not the arbitration award is binding.

3.  The Committee notes that the provisions of Act No. 94.029 do not apply to high-level officials or officials governed by the specific conditions of service of public services and establishments, or to those governed by the Merchant Marine Code (section 1 of Act No. 94.029). The Committee recalls that the guarantees set forth in the Convention apply fully to seafarers and public servants who are not engaged in the administration of the State and it requests the Government to provide it with a copy of the new Maritime Code (Act No. 99.028 of 3 February 1999), as well as additional information on the right to collective bargaining of seafarers and public servants who are not engaged in the administration of the State.

4.  The Committee notes that a revision of Act No. 94.029 is currently being completed and it requests the Government to send a copy with its next report. Moreover, the Committee requests the Government to provide it with copies of any texts issued under the Labour Code, particularly where they address the conditions governing the bargaining, conclusion, adherence to, review and denunciation of collective agreements and workplace agreements (section 58 of Act No. 94.029); the determination of the procedures for the election of staff representatives (section 142 of Act No. 94.029); and the operation of enterprise committees (section 147 of Act No. 94.029).

The Committee hopes that the Government will take its comments into account in the context of the review of Act No. 94.029 and requests it to keep it informed in its next report of the measures adopted in this respect.