Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Medical Examination of Young Persons (Underground Work) Convention, 1965 (No. 124) - Madagascar (Ratification: 1967)

The Committee notes the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) attached to the Government’s report.

Article 2(1) of the Convention. Medical examination of persons under 21 years of age prior to underground work in mines and application of the Convention in practice. The Committee noted previously that section 82 of Decision No. 58-AR of 8 May 1958 setting forth the safety rules applying to mines and quarries provides that no workers may be assigned to underground work without first undergoing a medical examination finding them to be fit for such employment. The Committee also noted that sections 7, 8 and 9 of Order No. 2806 of 8 July 1968 organizing occupational medical services provide in particular that employers must have regular visits organized for periodic medical examinations and that all workers are required to undergo a medical examination including a chest x-ray before taking up employment or no later than the following month. Furthermore, the Committee noted with interest that, under section 8 of Decree No. 2003-1162 of 17 December 2003 organizing occupational medicine, every worker, before taking up employment or no later than the following month, “shall undergo a medical examination consisting of at least an x-ray film of the lungs”. Under sections 7 and 9 of the Decree, periodic medical examinations are also compulsory and include “special medical examinations for workers exposed to the risk of occupational diseases”. However, the Committee noted the claims of the General Confederation of Workers’ Unions of Madagascar (CGSTM) that, to its knowledge, there are no longer any mining companies in Madagascar’s formal sector that perform underground work and employ young persons within the meaning of the Convention. The problem does arise, however, in family undertakings in the informal economy, for example in the sapphire mines of the Ilakaka region, in which young persons work up to 50 metres underground without proper safety precautions or ventilation. The CGSTM reported that the absence of adequate legislation means that these young people undergo neither a pre-employment medical examination to ascertain their fitness nor any regular medical checks, and that the Government has not taken any action to solve the problem.

The Committee notes the Government’s indication in its report that over 90 per cent of jobs are in the informal economy. The public services have no knowledge of 89 per cent of them on average. The Government states that it is aware of the need for action by labour inspectors in the informal economy. In this regard, the ILO–PAMODEC project, in collaboration with the Directorate of Labour and Promotion of Fundamental Rights (DTPDF) at the Ministry of the Civil Service, Labour and Social Legislation, held a national workshop on 26, 27 and 28 November 2014 for exchanges and discussions between labour inspectors on the effective application of international labour standards in the informal economy. Moreover, the Government indicates that it was agreed that formalization is particularly relevant to four sectors of activity, namely tourism, commerce, agriculture and public works/construction. Furthermore, the Committee notes the observations of SEKRIMA that, as regards underground operations run by families in the informal economy, the situation is currently unchanged since no official action has been taken to eliminate such operations, especially as they appear spontaneously and are impossible to monitor. Moreover, in general, there is no medical infrastructure established in the region where such operations are found.

The Committee recalls that, under Article 2 of the Convention, a thorough medical examination, and periodic re-examinations at intervals of not more than one year, for fitness for employment shall be required for the employment or work underground in mines of persons under 21 years of age, regardless of whether the work is performed in the formal sector or the informal economy and whether or not it is based on an employment relationship. The Committee requests the Government to take steps to ensure that all children and young persons under 21 years of age enjoy the protection afforded by the Convention, particularly those who work in family undertakings in mining and quarrying in the informal sector. It also requests the Government to provide information on the application of the Convention in practice, including statistics on the number of young persons who are working and have undergone the medical examinations provided for by the Convention, and also the number and nature of any violations recorded by the labour inspection services.

Article 4(4) and (5). Records pertaining to employees under 21 years of age. In its previous comments, the Committee noted the Government’s indication that a record must be kept by the employer and must consist of three parts: personal particulars, data concerning the worker’s position within the undertaking and a separate section for official stamps/signatures, observations and warnings from the labour inspector to the undertaking. The Committee noted that although the sample record provided by the Government in its report clearly indicates the employee’s date of birth, it contains no indication of the nature of the work and does not include a certificate attesting fitness for employment. The Committee noted, however, that under section 6 of Decree No. 2007-563 on child labour, the employer must keep a record indicating the full name, type of work, wage, hours of work, state of health, details of schooling and the situation of the parents of each child employee under 18 years of age. The Committee also noted the Government’s statement that Order No. 129-IGT of 5 August 1957 establishing a standard employer’s record, pursuant to section 252 of the Labour Code, is still in force and needs to be revised. The Committee observed that there still appears to be no requirement for employers’ records to contain a certificate of fitness for employment in respect of young persons between 18 and 21 years of age engaged in underground work. It asked the Government to take the necessary steps to ensure that employers comply with the obligations of Article 4(4) and (5) of the Convention.

The Committee notes the Government’s indication that the revision of Order No. 129-IGT very much depends on the resumption of the normal functioning of the National Labour Council (CNT), which is in the process of being made operational. The Government also indicates that, firstly, the DTPDF must carry out the feasibility study in relation to the revision of the Order, taking into account all the points to be included in the draft legislation according to the recommendations of the Committee of Experts. Secondly, the DTPDF, the body performing the role of technical secretary for the CNT, will communicate the draft to the CNT for the requested purposes. The Committee also notes that SEKRIMA refers to Order No. 129-IGT, indicating that it is still in force but is not applied in practice. SEKRIMA also considers that the Government should take the necessary steps to convene the CNT with a view to revising and harmonizing the Labour Code and subsequent legislation in relation to the ratified Conventions. The Committee expresses the hope that the Government will take the necessary steps to revise Order No. 129-IGT of 5 August 1957 establishing a standard employer’s record. It also requests it to ensure that the new order clearly lays down the obligation for the employer to keep a record indicating in particular the date of birth, the type of work and a certificate of fitness for underground work in respect of each person between 18 and 21 years of age, and to make this record available to workers’ representatives on request. The Committee further requests the Government to provide information in its next report on progress made in this regard.