Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - Madagascar (Ratification: 2001)

The Committee notes the observations of the General Confederation of Trade Unions of Madagascar (CGSTM), dated 27 August 2012, according to which no effective mechanism is in place for migration. There is no information service or bilateral agreement on social security available to workers going abroad. The trade union also indicates that over the last ten years no tripartite consultations on migrants have taken place. The Committee requests the Government to provide its comments on these matters.

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the adoption of Decree No. 30 by 095/2011-MFPTLS by the Ministry of the Public Service fixing the form and the modalities for establishing contracts of emigrant workers, which sets the mandatory content of the employment contract of the emigrant worker, as well as the obligation of the employer, particularly with regard to working conditions and obtaining work permits and residence visas. The Committee also notes the adoption of Decree No. 30-096/2011-MFPTLS by the Ministry of the Public Service establishing the procedure for authorizing contracts of emigrant workers, which provides that all contracts must be submitted for prior approval by the Service of Migration Management of the Ministry of Employment and the labour inspectorate. The Decree also requires the Office of Private Placement to follow up on Malagasy nationals every three months. The Government further provides information on the conclusion of an agreement with Mauritius, under which interim measures have been established and negotiations for which are under way with the French Government. The Government also refers to the adoption of Decree No. 01-013/2010 of 10 February 2010 laying down the procedures for the granting and withdrawal of the accreditation of private employment agencies. The Committee also notes the statistical information provided by the Government that 282 men and 1,030 women emigrated in 2012. The Committee requests the Government to continue to provide information on any developments concerning the policy and legislation relating to immigration and emigration and on any bilateral agreements concluded. Please provide information on the conclusion of any bilateral or multilateral agreements concerning the matters covered by the Convention and provide a copy of Decree No. 01-013/2010 of 10 February 2010 laying down the procedures for granting and withdrawal of accreditation of placement offices.

Articles 2 and 4; Annex I, Article 6; Annex II, Article 7. Information and assistance. The Committee takes note of the adoption of a standard contract by the Inter-Ministerial Committee in 2010. The Government states that the Service of Migration Management informs emigrant workers of the procedures for obtaining authorization of their employment contract. Placement offices are responsible for informing migrant workers of the conditions of work specified in their contract. The Committee requests the Government to provide a copy of the standard contract adopted in 2010. The Committee also requests the Government to indicate the specific type of information and assistance provided to migrant workers by the Service of Migration Management and placement agencies and whether this information is free, how it is ensured that it reaches the largest number of migrant workers, and whether there is specific information addressed to women. Please indicate any other measures taken or envisaged to provide assistance to migrant workers within the meaning of Articles 2 and 4 of the Convention, Article 6 of Annex I and Article 7 of Annex II.

Article 3. Misleading propaganda. The Committee notes that, according to the Government’s report, measures have been taken to prevent and punish the use of misleading propaganda relating to migration, namely the control of authorized agencies, the withdrawal of accreditation for misconduct under the law and the suspension of the authorization to send workers. The Committee recalls that States which have ratified the Convention have an obligation, on the one hand, to prevent the dissemination of false information to their nationals leaving the country and to combat false information provided to foreigners wishing to enter the country. The Committee considers that the fight against misleading propaganda should also target the national population, for example, by addressing propaganda regarding stereotypes about migrants (see General Survey on migrant workers, 1999, paragraph 217). The Committee requests the Government to continue to take measures to prevent and punish the use of misleading propaganda relating to migration, including measures aimed at raising awareness of the national population, and any collaboration with other national governments in accordance with Article 3(2) of the Convention.

Article 6. Equal treatment. The Committee notes the information provided by the Government that the labour administration and labour inspectorate ensure the application of legal provisions through awareness raising, dissemination of texts, monitoring and control. These institutions are also competent to make recommendations and issuing compliance orders. With regard to social security, the Government refers to Decree No. 69-145 of 8 April 1969 which covers all workers, men and women, national or foreign. The Committee requests the Government to provide information on the relevant texts applying the law and policy on equal treatment between foreign and national workers in matters of taxes, fees and contributions payable at work. The Committee also requests the Government to provide information on the measures taken or envisaged to ensure that women migrant workers are treated on an equal footing with male workers, foreign or national, in areas referred to in Article 6(1)(a) to (d). Please provide information on any infringements and penalties imposed and on any complaint to the judicial authorities for non compliance with the provisions relevant to Article 6 of the Convention and follow-up given to these complaints.

Article 8. Maintenance of residence in case of incapacity for work. The Committee requests the Government to confirm that migrant workers who have been admitted on a permanent basis and members of their family, who have been authorized to accompany or join, cannot be returned when due to illness or accident they are unable to carry out their work. The Committee also requests the Government to indicate in what circumstances a permanent residence permit is obtained in Madagascar and under what conditions it can be revoked.

Article 11. Definition of “migrant worker”. In its previous comments, the Committee took note of section 41 of the Labour Code, defining a “displaced worker” as someone who, in order to accomplish the work agreed upon, is obliged to settle “for a long-term period” in a workplace other than their usual residence or outside their country of origin. It also noted the Government’s indication that in practice displaced workers are considered to be migrant workers only when they are at a workplace other than their usual residence for at least six months. The Committee notes that the Government indicates in its last report that, in practice, there is no longer a distinction regarding the duration of the contract, to the extent that all emigrant workers benefit from the protection afforded by the Convention. The Government also indicates that any worker who emigrated must have a work visa from the Ministry of Employment. From that moment, he or she will be supported by the Consulate of Madagascar of the place of employment, regarding working conditions and social security. The Committee requests the Government to take the necessary steps to amend section 41 of the Labour Code to ensure that all migrant workers, including displaced workers, are covered by the Convention, and to reflect established practice. The Committee requests the Government to indicate whether the same conditions apply to foreign workers in Madagascar.

Annex I, Article 5, and Annex II, Article 6. Supervision of employment contracts. The Committee notes the Government’s statement that the contracts of employment of migrant workers are subject to a system of supervision. The Directorate of Employment and Vocational Training is responsible in principle for the migration. The Government states that the law is the same for migrant workers, whether or not recruited under Government-sponsored arrangements for group transfers. For immigrant workers allowed to work on the national territory other than the province Analamanga, supervision of the employment contract is subject to approval by the Department of Employment, which issues an employment authorization. For migrant workers in the region Analamanga, it is the Economic Development Board of Madagascar which, after verification of their employment contract, transmits the files of the concerned workers to the Directorate of Employment and Training. With regard to emigrant workers, the Directorate of Employment and Vocational Training is responsible for the procedure of supervision. The Committee requests the Government to indicate how the Economic Development Board of Madagascar and the Directorate of Employment and Training implement the provisions of Article 5 of Annex I and Article 6 of Annex II of the Convention, in particular with regard to the concrete information given to migrant workers on the contents of the employment contract. Please indicate the measures taken in case of non compliance with Article 5 of Annex I and Article 6 of Annex II, indicating the competent authority and the number of offences detected.

Part V of the report form. Practical application. The Committee notes the statistics provided by the Government on the employment of nationals abroad and foreign nationals in Madagascar. The Committee encourages the Government to continue to provide statistics on the employment of nationals abroad, if possible disaggregated by sex and occupation. Please also provide statistics on foreign nationals in Madagascar, including migrant workers in the region of Analamanga, disaggregated by sex, nationality, and if possible, sector of activity and indicate any practical difficulties encountered in implementing the Convention. Please also indicate whether the courts or other tribunals have given decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.