Rapport intérimaire - Rapport No. 389, Juin 2019

Cas no 3275 (Madagascar) - Date de la plainte: 03-AVR. -17 - En suivi

Allegations: The complainant alleges anti-union discrimination from a port sector company by: (i) refusing to recognize the General Maritime Union of Madagascar (SYGMMA) as the legitimate representative of its workforce; and (ii) penalizing and dismissing union leaders and members as measures of retaliation for carrying out legitimate trade union activities

1. 445. The complaint is contained in a communication from the International Transport Workers’ Federation (ITF) dated 3 April 2017.
2. 446. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case twice. At its March 2019 meeting [see 388th Report, para. 6], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of this case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any observations.
3. 447. 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).

The complainant’s allegations

1. 448. In a communication dated 3 April 2017, the ITF alleges that the State-owned Société de Manutention des Marchandises Conventionnelles (SMMC, hereinafter the company) has consistently denied the right of the General Maritime Union of Madagascar (SYGMMA) to organize workers at the Port of Toamasina and has implemented campaigns of retaliatory dismissals against workers carrying out legitimate trade union activities. It also indicates that the relevant agencies of the Government have failed to enforce legislation and court decisions protecting workers’ and trade union rights.
2. 449. The complainant indicates that the Toamasina Port Authority (SPAT) was established under Law No. 2003-025. It assigned the role of managing bulk and non-containerized cargo at the Port to the company in 2008. The company is also responsible for providing casual labour to Madagascar International Container Terminal Services Ltd (MICTSL), which was awarded a 20-year concession to manage the container terminal at the Port in 2005. The company employs 1,034 workers across the bulk and container terminals.
3. 450. The ITF points out that on 1 March 2012, SYGMMA set up an enterprise-level union branch at the Port of Toamasina in accordance with sections 136–139 of the Labour Code to represent dock workers employed by the company, but that from the outset, the company made it clear that it did not intend to recognize SYGMMA as the legitimate representative of its workforce.
4. 451. The complainant alleges that on 13 March 2012, the company’s management ordered three branch delegates to sign a letter stating that they would resign from the union and agree not to hold union meetings. The delegates refused and were subsequently dismissed and denied their performance and end-of-year bonus, in breach of sections 141, 144 and 145 of the Labour Code concerning protection against anti-union discrimination. Furthermore, on 9 May 2012, six other members of the union branch were initially denied work shifts and ultimately dismissed without cause.
5. 452. The complainant points out that attempts at conciliation were initiated by, among others, the Labour Inspectorate, the District of Toamasina and the Region of Atsinanana, but that the company refused to participate on each occasion. In accordance with section 201 of the Labour Code, the labour inspector issued a failure to act report on 23 May 2012 after the company’s failure to attend conciliation meetings on three consecutive occasions.
6. 453. The complainant indicates that on 5 July 2012, SYGMMA sent a letter to the company requesting the reinstatement of the nine members and delegates within 72 hours. Following the company’s failure to respond to the reinstatement request, branch members took lawful strike action on 11 and 12 July 2012. It alleges that on 13 July 2012, the company’s management called 34 striking dock workers into a meeting and told them that if they wanted to return to work they would need to sign a letter stating that they would stop being members of the union. The dock workers refused to do so and were subsequently dismissed.
7. 454. The ITF states that on 31 August 2012, SYGMMA filed a case with the Labour Court of Toamasina against the company’s failure to recognize the union and requesting the reinstatement of the 43 dock workers dismissed for carrying out legitimate trade union activities. On 28 January 2013, the Ministry of Justice invited SYGMMA to the capital to meet the Director-General of Labour Affairs to address the industrial relations issues at the Port of Toamasina. This meeting took place in February 2013. On 25 February 2013, SYGMMA lodged a case with the Arbitration Board of the Court of First Instance concerning the failure of the company to recognize the union and on 26 July 2013, SYGMMA filed a case with the Court of First Instance concerning the unfair dismissals of the 43 dockers. On 26 July 2013, the Arbitration Board of the Court of First Instance delivered its judgment in favour of SYGMMA (the Arbitral Award). Among other things, the Court ruled that the company’s failure to recognize the union amounted to an unconstitutional act in contravention of the principles of freedom of association. However the company failed to honour the Arbitral Award, despite the action of the Judicial Officer of the National Chamber of Enforcement Agents who confirmed the elements of the Arbitral Award on 17 July 2014 and the efforts of the Labour Inspectorate, as well as the attempts by SYGMMA to resolve the matter directly with the Government.
8. 455. Lastly, the ITF indicates that on 10 April 2015 the Labour Court of First Instance dismissed the unfair dismissal claim. The union appealed the decision on 22 September 2015 but no court date has yet been set to hear the appeal. At the date of filing, SYGMMA has not been recognized by the company and none of the 43 dockers have been reinstated.
9. 456. The ITF requests the Committee to formulate the necessary recommendations to urge the Government to act in conformity with Conventions Nos 87 and 98 with a view to restore the full exercise of those rights and to seek the immediate reinstatement of the 43 dismissed union delegates and members with full pay for back wages and adequate compensation.

The Committee’s conclusions

1. 457. The Committee deeply regrets the fact that, despite the time that has elapsed since the presentation of the complaint, the Government has not provided the requested observations and information in time, even though it has been asked to do so several times, including through an urgent appeal made at its March 2019 meeting. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1972)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
2. 458. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. While this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, para. 31].
3. 459. The Committee observes that this complaint concerns allegations of anti-union discrimination from a port sector company by: (i) refusing to recognize SYGMMA as the legitimate representative of its workforce; and (ii) by penalizing and dismissing union leaders and members as measures of retaliation for carrying out legitimate trade union activities.
4. 460. The Committee notes the complainant’s allegations according to which the company has consistently denied the right of SYGMMA to organize workers at the Port of Toamasina and has implemented campaigns of retaliatory dismissals against workers carrying out legitimate trade union activities. It also notes in this regard that on 26 July 2013, the Arbitration Board of the Court of First Instance delivered its judgment in favour of SYGMMA ruling that the company’s failure to recognize the union amounted to an unconstitutional act in contravention of the principles of freedom of association but that the decision has not been enforced.
5. 461. The Committee wishes to recall that the right of workers to establish and join organizations of their own choosing in full freedom cannot be said to exist unless such freedom is fully established and respected in law and in fact [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 472]. In view of the information at its disposal, the Committee requests the Government to take the necessary measures to ensure that: (i) the decision of the Arbitration Board of the Court of First Instance of 26 July 2013 is enforced; and (ii) trade union rights are respected at the Port of Toamasina allowing SYGMMA to carry out its trade union activities in full freedom.
6. 462. With respect to the allegations of anti-union dismissals, the Committee notes from the complainant’s allegations that: (i) in March 2012, three union branch delegates from SYGMMA were dismissed after they refused to sign a letter at the request of the company stating that they would resign from the union and agree not to hold union meetings; (ii) in May 2012, six other members of the branch were initially denied work shifts and ultimately dismissed without cause; and (iii) in July 2012, 34 dock workers who had participated in a lawful strike in favour of the nine members and delegates were dismissed as a consequence of their refusal to sign a letter stating that they would stop being members of the union.
7. 463. In the absence of any information provided by the Government, the Committee considers that sanctions such as these, should they be proven, would seriously undermine the exercise of trade union rights. The Committee wishes to recall that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. In addition, when trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against. The Committee also wishes to recall that coercing trade union members into leaving the trade union constitutes a serious violation of Conventions Nos 87 and 98 that consecrate the right of workers to freely join the organization of their own choice and the principle of the adequate protection of this right, and that management drafting of a union resignation letter constitutes a grave interference in the functioning of workers’ organizations [see Compilation, op. cit., paras 1075, 958, 1199 and 1200].
8. 464. In addition, the Committee wishes to draw the attention of the Government to the provisions of the Workers’ Representatives Recommendation, 1971 (No. 143), in which it is expressly established that workers’ representatives should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on union membership, or participation in union activities in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.
9. 465. With respect to the legal actions initiated by the complainant concerning the unfair dismissals claim of the 43 dockers, the Committee notes that on 10 April 2015 the Labour Court of First Instance dismissed the claim and that the union appealed the decision on 22 September 2015. The Committee observes that it has not been informed of any decision on the appeal since then. Recalling that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [see Compilation, op. cit., para. 1142], the Committee requests the Government to indicate whether an appeal decision has been issued on the unfair dismissal claim. If it is found that acts of anti-union discrimination have been committed by the company, the Committee calls on the Government to take the necessary measures of redress, including ensuring that the workers concerned are reinstated without loss of pay. If reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals [see Compilation, op. cit., para. 1174].

The Committee’s recommendations

1. 466. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deeply regrets that the Government has not replied to the allegations, even though it has been asked to do so on several occasions, including through an urgent appeal, and requests it to reply as soon as possible.
   • (b) The Committee requests the Government to take the necessary measures to ensure that: (i) the decision of the Arbitration Board of the Court of First Instance of 26 July 2013 is enforced; and (ii) trade union rights are respected at the Port of Toamasina allowing SYGMMA to carry out its trade union activities in full freedom.
   • (c) The Committee requests the Government to indicate whether a judgment on appeal has been issued on the unfair dismissal claim of the 43 workers. If it is found that acts of anti-union discrimination have been committed by the company, the Committee calls on the Government to take the necessary measures of redress, including ensuring that the workers concerned are reinstated without loss of pay, and if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation.
   • (d) The Committee urges the Government to solicit information from the employers’ organizations concerned, if they so desire, with a view to having at its disposal their views as well as those of the enterprise concerned on the pending issues.