Effect given to the recommendations of the committee and the Governing Body - Report No 332, November 2003

Case No 2132 (Madagascar) - Complaint date: 28-MAY-01 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 98. The Committee has already examined this case on two occasions: first at its March 2002 meeting when it submitted an interim report to the Governing Body [see 327th Report, paras. 645-663], then at its June 2003 meeting when it submitted a report, requesting to be kept informed of developments, to the Governing Body [see 331st Report, paras. 579-592].
2. 99. When it last examined this case, the Committee requested the Government to inform it of the terms of the agreement that would be reached with the trade unions on the composition of the Governing Board of the National Social Security Fund (CNaPS), as well as of the manner in which the Government would preserve the prerogatives, with regard to representation of employers’ and workers’ interests, of their respective organizations, if it still intended to broaden the composition of certain tripartite bodies. Moreover, the Committee requested that section 1(3) of Decree No. 2000-291 be amended to allow the representativity of trade unions to be determined without any requirement for a list of names. The Committee also requested the Government to ensure that determination of the representativity of workers’ and employers’ organizations is based on objective and precise legal criteria. Lastly, the Committee requested the Government to keep it informed of allegations relating to acts of interference by the Ministry of the Public Service, Labour and Social Law in the internal affairs of trade unions, and those relating to infringements of the right of collective bargaining resulting from Decree No. 97-1355; if need be, this Decree should be amended to make it compatible with the principle of voluntary collective bargaining.
3. 100. The Government sent its observations by communications dated 24 June and 3 October 2003. The Government highlights that the Ministry of Labour and Social Law has the task of giving priority to social dialogue, hence the establishment, with the consent of the social partners, of the National Employment Council (CNE). With regard to the CNaPS, the Government and the social partners were able to reach an agreement to resolve the problem of the composition of its Governing Board, the members of which were finally able to be appointed. In this respect, the Government attached to its reply a copy of Order No. 5066-2003 of 28 March 2003 appointing members of the CNaPS Board according to the following structure: four government representatives, eight employers’ representatives and eight workers’ representatives. Furthermore, Decree No. 99-673 of 20 August 1999, renewing the membership of the CNaPS Board, which was promulgated under the previous government and led to disagreement between the Government and the social partners, was abrogated by Decree No. 2002-1575 of 18 December 2002, which was drawn up freely in agreement with the social partners. Generally speaking, as regards the composition of tripartite structures, the Government indicates that the role of the State from now on will consist in endorsing the appointments proposed by the social partners. The Government emphasizes that there has been an effective resumption of social dialogue and, consequently, all activities relating to tripartism.
4. 101. As regards the other issues raised, the Government indicates that Decree No. 2000-291 of 31 May 2000, which would require trade unions to provide a list of their members with a view to determining their representativity, is no longer justified in the light of developments. With regard to the allegations of interference, if such intervention occurred, on the one hand, the Government would not have had the intention of interfering in the internal affairs of a trade union and, on the other hand, such intervention would have been carried out with good intentions, namely to assess the actual representativity of a trade union. Lastly, Decree No. 97-1355 can never supersede the Labour Code. This Decree was promulgated against a backdrop of privatization of state-owned enterprises with a view to reducing the social impact of privatization. More precisely, enterprises experiencing difficulties, and which appeared on the list of enterprises to be privatized, were requested to suspend collective bargaining during this period until their situations were dealt with, so as to prevent the social problems generated by the economic situation from further increasing.
5. 102. The Committee notes with interest the information sent by the Government concerning the effective resumption of social dialogue and the resolution, in agreement with the social partners, of the issue of the composition of the CNaPS Board. The Committee particularly notes the abrogation of Decree No. 99-673 of 20 August 1999 by Decree No. 2002-1575 of 18 December 2002, which was drawn up with the social partners, and that, from now on, the role of the State will consist in endorsing the appointments proposed by the social partners with a view to their participation in tripartite bodies.
6. 103. With regard to Decree No. 2000-291 of 31 May 2000, while taking note of the comments made by the Government, the Committee requests the Government to state whether section 1(3) of the Decree has been effectively abrogated. The Committee also recalls that it requested the Government to ensure that the representativity of trade unions is based on precise and objective legal criteria. The Committee requests the Government to keep it informed in this regard.
7. 104. Lastly, as regards the suspension of collective bargaining for a fixed period within enterprises that were experiencing difficulties and awaiting privatization, the Committee recalls that a distinction should be made between the suspension of collective agreements that have already been concluded, and that of future negotiations. With regard to the first instance, the suspension by decree – without the agreement of the parties – of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If a government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations, without imposing on them the renegotiation of the collective agreements in force [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 876]. In the second instance, if, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect a worker’s living standards [see Digest, op. cit., para. 882]. If Decree No. 97-1355 is still in force, the Committee requests the Government to transmit a copy so as to allow it to examine the compatibility of the Decree with the principle of voluntary collective bargaining in full knowledge of the facts.