Protection of Workers' Claims (Employer's Insolvency) Convention, 1992 (No. 173) - Madagascar (Ratification: 1998)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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

Articles 5 and 6(a) of the Convention. Preferential treatment of wage claims. The Committee notes the information from the Government to the effect that Act No. 2003-042 of 3 September 2004 on collective procedures for the discharge of liabilities and Act No. 2003-041 of 15 July 2004 on securities are still in force. It reminds the Government that in its previous comments it asked the Government to confirm: (i) whether the workers’ privilege established by section 73(2) of the Labour Code for remuneration due to them for the last 60 days of work is a “superprivilege” within the meaning of section 98 of Act No. 2003-042; and (ii) whether section 162(4) of Act No. 2003-041 establishes for employees a general privilege – in addition to the “superprivilege” – for wage claims arising in the year preceding the judicial decision to open collective proceedings. The Committee requests the Government to reply specifically to these two points in its next report.

Article 6(c). Claims in respect of paid absence. The Committee notes that in its report the Government refers to the provisions of the Labour Code that deal with the wages and indemnities to be paid to workers in the event of sickness or maternity. The Committee points out that the Convention sets out specifically to protect workers’ claims in the event of the employer’s insolvency. There, the protection pertains to the right of workers to receive the amounts owed to them by the employer for sick leave or maternity leave, pursuant to the Labour Code, where such amounts were not paid prior to the onset of insolvency. The Committee requests the Government to indicate the measures taken or envisaged to extend to such claims the privilege established in the national legislation for workers in the event of the employer’s insolvency.

Article 7. Capping of the amounts protected. Further to its previous comments, the Committee notes the information from the Government to the effect that no text has been adopted setting a ceiling on the privilege established by section 73 of the Labour Code. The Committee asks the Government to keep the Office informed of any developments in this regard.

Part IV of the report form. Application in practice. The Committee notes that because of the crisis prevailing in the country, many enterprises are in difficulty and many establishments have closed. It nevertheless takes note of the Government’s statement that it is not able to provide statistics for the time being owing to the political and economic instability in the country. The Committee asks the Government to provide, as soon as it is able, more specific information on the application of the Convention in practice, such as data on the number of bankruptcies or the total amount of the workers’ claims that have been settled by means of the statutory privilege.

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

Articles 5 and 6(a) of the Convention. Preferential treatment of wage claims. The Committee notes that, in reply to its previous comment, the Government refers to Act No. 2003-042 of 3 September 2004 on collective procedures for the discharge of liabilities, section 97 of which provides that claims arising from an employment or apprenticeship contract are guaranteed, in the event of judicial administration or liquidation, by the privilege relating to wages established for the cases and the amounts defined by labour legislation and the provisions relating to securities. In this regard, the Committee points out that the legislation of Madagascar displays great similarities to the corresponding provisions adopted under the auspices of the Organization for the Harmonization of Business Law in Africa (OHADA). As the Committee understands it, the privilege of workers established by section 73(2) of the Labour Code for remuneration due to them for the last 60 days of work actually constitutes a “super-privilege” within the meaning of section 98 of Act No. 2003-042. If this interpretation is correct, wage claims protected in this way must be paid in the ten days following the opening of the collective procedure and before any other claim. The Committee’s understanding is also that section 162(4) of Act No. 2003-041 of 15 July 2004 on securities establishes for the benefit of employees a general privilege – in addition to the “super-privilege” – with regard to wage claims arising in the year preceding the judicial decision to open a collective procedure. The Committee requests the Government to confirm whether the national legislation indeed establishes, in accordance with the procedures described above, a general privilege and a “super-privilege” to protect workers’ wage claims in the event of the employer’s insolvency. If this is indeed the case, the national legislation would be in full conformity with – and in fact considerably more favourable than – Article 6(a) of the Convention, which states that the privilege must cover at least the workers’ claims for wages relating to a period of at least three months prior to the insolvency or prior to the termination of employment.

Article 6(c). Claims in respect of paid absence. The Committee notes that the Government’s report does not contain any reply to its previous comment on this point. The Committee hopes that the Government will take the necessary measures as soon as possible to ensure that the employees’ privilege also covers their claims for amounts due in respect of paid absence other than paid holidays (for example, sick leave or maternity leave), relating to a period determined by the national legislation – at least three months – prior to the insolvency or prior to the termination of employment.

Article 7. Limitation of protected amounts. Further to its previous comments on this subject, the Committee requests the Government to indicate whether regulations fixing a ceiling on the privilege established by section 73 of the Labour Code have been adopted. If so, the Government is requested to send a copy of this text.

Part IV of the report form. The Committee notes the information concerning the number of workers protected by the legislation which the Government supplied in its report. It requests the Government to continue supplying information on the application of the Convention in practice, including, if available, statistical data on the number of bankruptcies per year, the number and amount of wage claims which have been settled by legal privilege, etc.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report and the information it contains as well as the adoption of Act No. 2003-044 of 28 July 2004 issuing the Labour Code.

Article 6 of the Convention. Protected claims. The Committee notes with interest that by virtue of section 29 of the new Labour Code, which reproduces section 38 of the former Code, the privilege protecting workers’ claims extends to severance pay, pay in lieu of notice, and any damages and interests due. The Committee notes, however, that the Government has not taken the opportunity of revising the Labour Code to also amend the provisions limiting the privileged treatment to the remuneration due for the last 60 days of work whereas, under the Convention, the privilege must cover at least three months’ wages. The Committee also notes that the new Labour Code has not extended the protection of privilege of workers’ claims to paid absence other than paid leave. In this regard, the Committee notes that, according to the indications given by the Government in its report, the payment of amounts due for such absences (sick leave or maternity leave) is generally made at the time when the absences occur. The Committee recalls, however, that, under this Article of the Convention, the privilege must cover workers’ claims for amounts due in respect of paid absences other than annual leave, relating to a specified period, which may not be less than three months, prior to the insolvency or the termination of the employment. The Committee again expresses the hope that the Government will shortly be able to amend its legislation in order to give full effect to this provision of the Convention.

Article 7. Limitations. The Committee notes that section 73(2) and (3) of the new Labour Code are limited to reproducing the corresponding provisions of section 83 of the former Code under which remuneration due to employees and apprentices for the last 60 days of work has absolute priority up to a monthly ceiling laid down by regulations. The Committee notes that, in its report, the Government confirms that it will keep the Committee informed of any developments relating to the adoption of regulations in application of this provision.

Article 8. Rank of privilege. The Committee notes with satisfaction that section 73(1) of the new Labour Code provides that workers’ claims have a higher rank of privilege than those of the State and the social security system.

Part IV of the report form. The Government is requested to provide general indications as to the manner in which the Convention is applied in practice including, if possible, information concerning the number of workers covered by the legislation giving effect to the Convention.

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

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:

Articles 5 and 6 of the Convention. The Committee recalls its previous comment in which it had requested the Government to indicate the specific texts regulating the conditions under which and the limits within which privileged protection is accorded to workers’ wage claims in the case of bankruptcy or insolvency of the employer as provided for in sections 77 and 83 of the Labour Code. In its reply, the Government states that the above provisions are modelled after the French legislation and that there exist no other legislative or regulatory provisions applicable to this matter. The Committee is therefore bound to observe that the requirements of Part II of the Convention are given at present only partial effect and calls upon the Government to take all necessary steps to bring its legislation into closer conformity with the Convention. In particular, it draws the Government’s attention to the fact that the minimum coverage of the privilege for wages due may not be less than three months while the privilege for claims in respect of paid absence should not be limited to holiday pay but should extend to other types of paid absence such as sick leave or maternity leave.

Article 7. In its previous comment, the Committee had drawn attention to section 83 of the Labour Code which grants absolute priority to workers’ claims in respect of unpaid wages for the last 60 days of employment within a maximum monthly limit to be fixed by regulation and had requested the Government to specify the monetary limit currently in force. The Government indicates in its report that no such regulation has as yet been issued. The Committee takes note of this information and asks the Government to keep it informed of any further developments in this regard.

Article 8. The Committee recalls the Government’s statement in its first report to the effect that under section 75(2) of the draft new Labour Code workers’ claims are given a higher rank of privilege than those of the State and the social security system. While noting that the process of revision of the Labour Code has not yet been completed, the Committee requests the Government to keep it informed of any progress made in this regard and to transmit the text of the new legislation once it is enacted.

The Committee expresses its firm hope that the Government will not fail to take the above comments into account in finalizing the text of the new Labour Code and reminds it that the Office’s technical assistance is at its disposal. The Committee also requests the Government to provide in its next report all available information on the practical application of the Convention in accordance with Part IV of the report form.

[The Government is asked to report in detail in 2005.]

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

The Committee takes note of the Government’s report and the attached documentation.

Articles 5 and 6 of the Convention. The Committee recalls its previous comment in which it had requested the Government to indicate the specific texts regulating the conditions under which and the limits within which privileged protection is accorded to workers’ wage claims in the case of bankruptcy or insolvency of the employer as provided for in sections 77 and 83 of the Labour Code. In its reply, the Government states that the above provisions are modelled after the French legislation and that there exist no other legislative or regulatory provisions applicable to this matter. The Committee is therefore bound to observe that the requirements of Part II of the Convention are given at present only partial effect and calls upon the Government to take all necessary steps to bring its legislation into closer conformity with the Convention. In particular, it draws the Government’s attention to the fact that the minimum coverage of the privilege for wages due may not be less than three months while the privilege for claims in respect of paid absence should not be limited to holiday pay but should extend to other types of paid absence such as sick leave or maternity leave.

Article 7. In its previous comment, the Committee had drawn attention to section 83 of the Labour Code which grants absolute priority to workers’ claims in respect of unpaid wages for the last 60 days of employment within a maximum monthly limit to be fixed by regulation and had requested the Government to specify the monetary limit currently in force. The Government indicates in its report that no such regulation has as yet been issued. The Committee takes note of this information and asks the Government to keep it informed of any further developments in this regard.

Article 8. The Committee recalls the Government’s statement in its first report to the effect that under section 75(2) of the draft new Labour Code workers’ claims are given a higher rank of privilege than those of the State and the social security system. While noting that the process of revision of the Labour Code has not yet been completed, the Committee requests the Government to keep it informed of any progress made in this regard and to transmit the text of the new legislation once it is enacted.

The Committee expresses its firm hope that the Government will not fail to take the above comments into account in finalizing the text of the new Labour Code and reminds it that the Office’s technical assistance is at its disposal. The Committee also requests the Government to provide in its next report all available information on the practical application of the Convention in accordance with Part IV of the report form.

[The Government is asked to report in detail in 2004.]

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

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 notes with interest the information communicated by the Government in its first report and requests it to supply details on the following points.

Article 1(3) of the Convention. The Committee notes that section 77 of the Labour Code provides that workers’ and apprentices’ claims in regard to wages take priority over the debtor’s movable and immovable property in the conditions laid down by the texts in force. The Committee requests the Government to specify which texts lay down the conditions provided under section 77 of the Labour Code and to supply a copy of them to the Office.

Article 6. The Committee notes from the Government’s report that workers’ privilege shall cover, first, their claims for wages relating to a prescribed period, for which the period prior to the insolvency or prior to termination of the employment is not stated. It notes, however, that under section 83 of the Labour Code, remuneration of all kinds due to employees for the last 60 days of employment must be paid to them regardless of the existence of any other privileged claims, up to a monthly level fixed by regulation. Recalling that Article 6 of the Convention provides that the privilege for wages due must cover a prescribed period, which shall not be less than three months, prior to the insolvency or prior to the termination of the employment, the Committee requests the Government to provide details concerning the method for determining the abovementioned period, indicating for example whether other legislative or regulatory provisions are applicable. The Committee notes that, according to the Government, workers’ privilege covers, next, their claims for compensation for paid leave not taken, pro rata for the number of days remaining at the time of termination of the employment relationship. It requests the Government to indicate how the period covered by the privilege is determined, by indicating any applicable legislative or regulatory provisions and to provide copies. The Committee notes from the Government’s report that workers’ privilege covers, finally, compensation for notice, calculated on the basis of occupational category and years of service without exceeding a total of six months, and compensation for dismissal on the basis of ten days per complete year of service, and restricted to six months of salary in the event of termination of the employment contract on economic grounds. The Committee therefore requests the Government to indicate the laws or regulations which include these provisions and to supply it with copies. It also requests the Government to indicate whether the compensation for paid leave is the only remunerated absence covered by the privilege or whether other types of absence, such as sick leave or maternity leave, are also covered by other provisions.

Article 7(1). The Committee notes that section 83 of the Labour Code provides that in the event of winding up by decision of a court or of liquidation of assets, remuneration of all kinds due to employees and apprentices for the last 60 days of employment or apprenticeship must be paid, after deduction of any amounts already received, irrespective of the existence of any other privileged claim, up to a monthly level identical for all categories of beneficiaries and that this level is fixed by regulation. It also notes that the Government considers the amount provided for in the last sub-clause of section 83 of the Labour Code as a socially acceptable level. The Committee therefore requests the Government to indicate the level that has been fixed and to supply a copy of the regulation that has been adopted for the purpose of applying section 83 of the Labour Code.

Article 7(2). The Committee requests the Government to indicate whether measures have been taken to adjust the prescribed amount for privilege of workers’ claims so as to maintain its value, in accordance with this provision of the Convention.

Article 8. The Committee notes the information to the effect that workers’ claims are currently placed at a lower rank of privilege than those of the State and social security. It notes that section 75(2) of the current draft revision of the Labour Code which has already received the agreement of the social partners provides that workers’ claims have a higher rank of privilege than state and social security claims. The Committee therefore trusts that the draft revised Labour Code will shortly be adopted and requests the Government to supply information on this matter in its next report, along with a copy of the new Labour Code.

The Committee requests the Government to inform the Office, in accordance with Part IV of the report form, as to the manner in which the Convention is applied in practice.

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

The Committee notes with interest the information communicated by the Government in its first report and requests it to supply details on the following points.

Article 1(3) of the Convention.  The Committee notes that section 77 of the Labour Code provides that workers’ and apprentices’ claims in regard to wages take priority over the debtor’s movable and immovable property in the conditions laid down by the texts in force. The Committee requests the Government to specify which texts lay down the conditions provided under section 77 of the Labour Code and to supply a copy of them to the Office.

Article 6.  The Committee notes from the Government’s report that workers’ privilege shall cover, first, their claims for wages relating to a prescribed period, for which the period prior to the insolvency or prior to termination of the employment is not stated. It notes, however, that under section 83 of the Labour Code, remuneration of all kinds due to employees for the last 60 days of employment must be paid to them regardless of the existence of any other privileged claims, up to a monthly level fixed by regulation. Recalling that Article 6 of the Convention provides that the privilege for wages due must cover a prescribed period, which shall not be less than three months, prior to the insolvency or prior to the termination of the employment, the Committee requests the Government to provide details concerning the method for determining the abovementioned period, indicating for example whether other legislative or regulatory provisions are applicable. The Committee notes that, according to the Government, workers’ privilege covers, next, their claims for compensation for paid leave not taken, pro rata for the number of days remaining at the time of termination of the employment relationship. It requests the Government to indicate how the period covered by the privilege is determined, by indicating any applicable legislative or regulatory provisions and to provide copies. The Committee notes from the Government’s report that workers’ privilege covers, finally, compensation for notice, calculated on the basis of occupational category and years of service without exceeding a total of six months, and compensation for dismissal on the basis of ten days per complete year of service, and restricted to six months of salary in the event of termination of the employment contract on economic grounds. The Committee therefore requests the Government to indicate the laws or regulations which include these provisions and to supply it with copies. It also requests the Government to indicate whether the compensation for paid leave is the only remunerated absence covered by the privilege or whether other types of absence, such as sick leave or maternity leave, are also covered by other provisions.

Article 7(1). The Committee notes that section 83 of the Labour Code provides that in the event of winding up by decision of a court or of liquidation of assets, remuneration of all kinds due to employees and apprentices for the last 60 days of employment or apprenticeship must be paid, after deduction of any amounts already received, irrespective of the existence of any other privileged claim, up to a monthly level identical for all categories of beneficiaries and that this level is fixed by regulation. It also notes that the Government considers the amount provided for in the last sub clause of section 83 of the Labour Code as a socially acceptable level. The Committee therefore requests the Government to indicate the level that has been fixed and to supply a copy of the regulation that has been adopted for the purpose of applying section 83 of the Labour Code.

Article 7(2). The Committee requests the Government to indicate whether measures have been taken to adjust the prescribed amount for privilege of workers’ claims so as to maintain its value, in accordance with this provision of the Convention.

Article 8. The Committee notes the information to the effect that workers’ claims are currently placed at a lower rank of privilege than those of the State and social security. It notes that section 75(2) of the current draft revision of the Labour Code which has already received the agreement of the social partners provides that workers’ claims have a higher rank of privilege than state and social security claims. The Committee therefore trusts that the draft revised Labour Code will shortly be adopted and requests the Government to supply information on this matter in its next report, along with a copy of the new Labour Code.

The Committee requests the Government to inform the Office, in accordance with Part IV of the report form, as to the manner in which the Convention is applied in practice.