Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 338, Novembre 2005

Cas no 2391 (Madagascar) - Date de la plainte: 13-OCT. -04 - Clos

Allegations: The complainant alleges that its two principal leaders have been victims of anti-union discrimination since the union was set up, that they have been blacklisted since January 2003 and have not been able to find work on any vessel since their union action which led to the implementation of a collective agreement for all the employer’s vessels. It also alleges that the employer has set up and runs an association which serves as an intermediary between seafarers and the recruiting shipowner which seafarers are obliged to join and which hinders the legitimate activities of SygmMa; that seafarers’ freedom of association is governed by the Maritime Code, which does not give them all the guarantees of the Labour Code or the Conventions on freedom of association, particularly in regard to articles of agreement approved by the maritime administration, which stipulate that striking is considered to be serious misconduct, punishable by immediate discharge and legal action

999. The complaint is contained in communications from the General Maritime Union of Madagascar (SygmMa) dated 13 and 18 October 2004.

1. 1000. The Government sent its reply in a communication dated 27 May 2005.
2. 1001. Madagascar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1002. In its communications of 13 and 18 October 2004, Mr. Lucien Razafindraibe, general secretary of the General Maritime Union of Madagascar (SygmMa), states that this organization represents the seafarers of the Indian Ocean Maritime Services Company (SMOI). Mr. Razafindaraibe and the SygmMa assistant general secretary, Mr. Hanitriniony, have suffered anti-union discrimination since January 2003 following wage demands they had made resulting in a collective agreement.
2. 1003. They had worked for SMOI as deck officer and engine officer since 1995; more recently they were employed as second captain and second engineering officer respectively, aboard the Elven, managed by SMOI. Following a SygmMa salary dispute which ended in November 2002 when a collective agreement was signed covering all the vessels of the brokerage, fitting-out and transportation company SOCATRA/SMOI (SMOI handles the recruitment of crews for SOCATRA’s vessels), Mr. Razafindraibe and Mr. Hanitriniony were blacklisted and have not been able to find work on any vessel since, although SMOI continued to recruit new officers and crewmembers.
3. 1004. SygmMa is complaining about SMOI’s action in response to Mr. Razafindraibe and Mr. Hanitriniony’s union activities, and demands on their behalf that they be given the right to work on SMOI vessels again, and that they be paid damages for what amounts to their wrongful dismissal from January 2003 until the present day.
4. 1005. The complainant also alleges that SMOI is guilty of interference as it has set up an association known as the Community of SMOI Seafarers (hereafter, the “Community”) which resembles a union, and imposes conditions of membership that are very close to indirect coercion, in violation of the Conventions on freedom of association. The main role of the Community is to act as an intermediary between the seafarers and SMOI in its capacity as a recruiting shipowner. The Community was created by SMOI to hinder SygmMa’s union activities to protect workers and their legal rights through collective bargaining.
5. 1006. The Community headquarters also happen to be the SMOI headquarters. Its honorary president is an employee of a subsidiary of SMOI, the Coastal Navigation Company of Madagascar (SOCAMAD), and its secretary is the SMOI trainer. These facts alone confirm SMOI’s involvement in the setting up of the Community, an association whose real purpose is to protect the interests of the employer. SygmMa requests the Committee to formulate the necessary recommendations to put an end to SMOI’s anti-union operations: seafarers are forced to join the Community through fear of dismissal.
6. 1007. The complainant also points out that SMOI and SOCAMAD make seafarers sign individual articles of agreement which stipulate that striking is considered to be a serious misconduct, punishable by legal action and the discharge of the seafarer. SygmMa includes with its complaint a copy of an individual contract indicating the conditions of work and remuneration, which include the following in article 9: “SOCAMAD will not tolerate the seafarer … encouraging the crew to strike … If this occurs, the seafarer will be immediately discharged, without prejudice to the legal action that will be taken against him.” Article 10 specifies that: “The parties declare that they have understood the general employment conditions for crew on board SOCAMAD vessels, conditions which have been approved and stamped by the Malagasy maritime authorities.”
7. 1008. SygmMa emphasizes that seafarers are governed by the Maritime Code in Madagascar, which does not include the fundamental provisions of ILO instruments, and thus leaves the door open to this sort of abuse, condoned by the maritime authority, whose stamp is used to authenticate the signatures of seafarers’ articles of agreement.
8. 1009. The complainant requests the Committee to formulate the necessary recommendations to urge the Government, and more specifically the maritime authority, to act more responsibly in the effective application of Conventions Nos. 87 and 98 for all Malagasy workers without exception.
9. B. The Government’s reply
10. 1010. In its communication of 27 May 2005, the Government states that although the right to strike is a constitutional freedom, in maritime matters, the exercise of this right varies depending on whether the crew is on board or on land. In the latter case, section 3.12.10 of Act No. 99-028 of 3 February 2000, amending the Maritime Code, provides for the right to strike once all other remedies for appeal and conciliation of parties (shipowners and seafarers) have been exhausted.
11. 1011. Regarding the situation on board, the International Convention for the Safety of Life at Sea, 1974, ratified by Madagascar in 1976, stipulates the maritime safety rules that are applicable, placing emphasis on the vessel, the cargo and the crew. Sections 7.4(23), (24) and (25) of Act No. 99-028 provide for disciplinary and criminal sanctions enabling the captain of the vessel to adequately discharge his responsibilities to ensure safety at sea. Striking is a legitimate right, but is not permitted on board as it endangers the safety of the passengers, the crew, the vessel and the cargo. In addition, in considering striking to be a serious misconduct, the individual articles of agreement drawn up by SMOI are merely complying with the provisions of the aforementioned international regulations.
12. 1012. The Government adds that the Maritime Code is a collection of technical provisions governing all aspects of the maritime sector. The Maritime Code is a special law. Consequently, the general law rules laid down in the Labour Code or the international labour Conventions ratified by Madagascar apply automatically, without having to be restated in the Maritime Code. Thus, the freedom of association that is provided for in the Labour Code applies to workers in general and to seafarers in particular.
13. 1013. The Government also states that it is for the ILO Committee on Freedom of Association to assess the establishment of a Community of SMOI seafarers allegedly resembling a union.
14. 1014. Regarding employment with SMOI, the seafarer’s articles of agreement terminate upon the discharge of the seafarer (section 3.7.01 of Act No. 99-028 of 3 February 2000, amending the Maritime Code) or upon expiry of the term of the articles of agreement (article 3.7.02 of the Maritime Code). Reemployment of seafarers is the prerogative of the shipowner, in this case SMOI.

C. The Committee’s conclusions

1. 1015. This complaint concerns allegations of anti-union discrimination by blacklisting union leaders and by setting up an employer-dominated association, as well as abusive contractual provisions regarding the right to strike.
2. Anti-union discrimination
3. 1016. Regarding acts of anti-union discrimination, the Committee notes that Mr. Razafindraibe and Mr. Hanitriniony, respectively the general secretary and the assistant general secretary of the General Maritime Union of Madagascar (SygmMa), had worked for the Indian Ocean Maritime Services Company (SMOI) since 1995, most recently as second captain and second engineering officer on a vessel operated by SMOI. They allege that, following a salary dispute which ended in November 2002 when a collective agreement was signed covering all the vessels of the brokerage, fitting-out and transportation company (SOCATRA/SMOI), they were blacklisted and have not been able to find work on any vessel since January 2003, although SMOI continued to recruit new officers and crewmembers.
4. 1017. The Committee can only note the proximity between the SygmMa dispute, which led to a collective agreement being signed in November 2002, and the fact that Mr. Razafindraibe and Mr. Hanintriniony have not received offers of employment on any vessel since January 2003, even though they had worked for SMOI for eight years, and had recently held positions of increased responsibility, which would indicate that their work was satisfactory, and the company in question continued recruiting new officers and crew members. The Committee recalls that no person should be prejudiced in his employment by reason of his legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690] and that the practice of blacklisting workers seriously undermines the exercise of trade union rights [see Digest, op. cit., para. 711].
5. 1018. In its reply, the Government confined itself to stating that the reemployment of seafarers was the prerogative of the shipowner, in this case SMOI. The Committee considers that the Government’s responsibility goes further than this simple observation, particularly in this type of employment relationships where, to all intents and purposes, there are no permanent contracts but rather a series of fixed-term contracts depending on their embarkations. The workers are therefore particularly vulnerable to discrimination, including blacklisting, and governments should take stringent measures to combat such practices [see Digest, op. cit., para. 709]. The Committee’s decision is borne out by its conclusions on the other aspects of the complaint, particularly regarding the establishment of an employer-dominated association (see below).
6. 1019. Consequently, the Committee requests the Government: to open an independent inquiry without delay into the discriminatory practices and blacklisting by SMOI, in particular regarding Mr. Razafindraibe and Mr. Hanitriniony since January 2003, and to inform the Committee of the results as soon as they are known; and to give the necessary instructions without delay to the competent services to put an immediate stop to all discrimination in recruitment against these union leaders and any other member or leader of SygmMa. The Committee requests the Government to keep it informed of the measures taken to give effect to its recommendations.
7. Employer interference
8. 1020. Regarding the acts of employer interference, the Committee notes that SMOI has set up an association or Community of SMOI Seafarers (hereafter, the “Community”) which resembles a union, whose principal role is to act as an intermediary between seafarers and SMOI in its capacity as recruiting shipowner. The Committee also notes that the headquarters of the Community are in the SMOI headquarters, that its honorary president is an employee of a subsidiary of SMOI, the Coastal Navigation Company of Madagascar (SOCAMAD), and its secretary is the SMOI trainer. Lastly, the Committee notes that, according to the allegations, seafarers are forced to join the Community through fear of losing their jobs. On the basis of the facts available, in particular, the fact that SMOI officials also play a key role in the Community, and the obvious overlap between the two structures (e.g. the shared premises), the Committee concludes that the employer played a determining role in the establishment of the Community and currently dominates it. Recalling the fundamental principle of the free choice of organization by workers [see Digest, op. cit., para. 274] and the need for organizations to be independent from the employer, the Committee recalls Article 2, paragraph 2, of Convention No. 98 which provides that: “In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this Article.”
9. 1021. The Government confined itself, in responding to the allegations of interference, to stating that it was for the Committee on Freedom of Association to assess the establishment of such a community; the Committee recalls that Article 3 of the same Convention provides that: “Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.” The Committee thus requests the Government to ensure that the allegations of interference by the employer in the free functioning of SygmMa through the Community are duly investigated by the competent national body, so that corrective measures can be taken against any interference detected. The Committee requests the Government to keep it informed of the measures taken to give effect to its recommendations.
10. References to striking in articles of agreement
11. 1022. Regarding the references to incitement to striking in SMOI’s articles of agreement, the Committee notes that these articles state that incitement to strike warrants “the immediate discharge” of the seafarer, which assumes that he is on board a vessel, or even at sea, at the time. The Government mentions the International Convention for the Safety of Life at Sea, 1974, and points out the difference in the right to strike depending on whether the crew is on board or on land. The Committee recognizes that the safety of persons and of goods during all boatage, anchoring, berthing and towing manoeuvres, and even more at sea, justifies restrictions or even a prohibition on the right to strike. The Committee recalls however that transport generally does not constitute an essential service in the strict sense of the term [see Digest, op. cit., para. 545]. Noting that, according to the Government, the Maritime Code allows the right to strike once all other remedies for the parties (shipowners and seafarers) have been exhausted, the Committee requests the Government to indicate whether these provisions allow seafarers and other workers in the maritime sector to exercise the right to strike when the safety of persons and goods is not in danger, for example when the vessel is within the port or alongside.

The Committee's recommendations

1. 1023. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government: to open an independent inquiry without delay into the discriminatory practices and blacklisting by the Indian Ocean Maritime Services Company (SMOI), in particular regarding Mr. Razafindraibe and Mr. Hanitriniony since January 2003, and to inform it of the results as soon as they are known; and to give the necessary instructions without delay to the competent departments to put an immediate stop to all discrimination in recruitment against these union leaders and any other member or leader of SygmMa. The Committee requests the Government to keep it informed of the measures taken to give effect to these recommendations.
   • (b) The Committee requests the Government to ensure that the allegations of interference by the employer in the free functioning of SygmMa through the Community are duly investigated by the competent national body, so that corrective measures can be taken against any interference detected. The Committee requests the Government to keep it informed of the measures taken to give effect to its recommendations.
   • (c) The Committee requests the Government to indicate whether the legal provisions applicable to seafarers and other workers in the maritime sector allow them to exercise their right to strike when the safety of persons and goods is not in danger.