Rapport intérimaire - Rapport No. 399, Juin 2022

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

Allegations: The complainant organization 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 in retaliation for carrying out legitimate trade union activities

1. 197. The Committee examined this case, presented in 2017, for the last time at its meeting in March 2021 and presented a new interim report to the Governing Body on that occasion [See 393rd Report, approved by the Governing Body at its 341st Session (March 2021), paras 572–580].
2. 198. In the absence of a reply from the Government, the Committee has twice been obliged to postpone its examination of the case. At its meeting in March 2022 [see 397th report, para. 7], the Committee expressed regret at the Government’s continued lack of cooperation and launched an urgent appeal to the Government, indicating that it would present a report on the substance of the matter at its next meeting, even if the requested information or observations had not been received on time. To date, the Government has not sent any information.
3. 199. 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. 200. At its previous examination of the case in March 2021, the Committee made the following recommendations [see 393rd Report, para. 580]:
   • (a) The Committee urges the Government to take the necessary measures to ensure that, in accordance with the decision of the Arbitration Board of the Court of First Instance dated 26 July 2013, trade union rights are respected at the Port of Toamasina, allowing the SYGMMA to carry out its trade union activities freely.
   • (b) The Committee urges the Government to provide detailed information on the situation of the 43 dismissed workers, as well as on the outcome of the appeal lodged in September 2015 against the decision by the Court of First Instance. If it is found that acts of anti-union discrimination were 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.

B. The Committee’s conclusions

1. 201. The Committee deeply regrets that, despite the time that has elapsed since the presentation of the complaint, the facts of which date back some ten years, the Government has failed to date to provide a reply to the Committee’s recommendations, even though it has been requested several times to do so, including through an urgent appeal.
2. 202. Under these circumstances, and in accordance with the applicable rule of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged once again to present a report on the substance of the case, without the benefit of the information it had expected to receive from the Government.
3. 203. 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. The Committee is confident that, 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, 1952, para. 31]. The Committee urges the Government to be more cooperative in the future, especially as it recently benefited from technical assistance from the Office.
4. 204. The Committee recalls that this complaint concerns allegations of 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 in retaliation for carrying out legitimate union activities.
5. 205. The Committee deeply regrets that the Government has failed to provide the requested information regarding the recognition of the SYGMMA and the respect of trade union rights in the Port of Toamasina, as well as the situation of the 43 workers dismissed in 2012 and the outcome of the related judicial proceedings. The Committee wishes to recall that dockers, in view of their status and conditions of recruitment, may prove to be especially vulnerable to anti-union discrimination, and that it considers that the lack of information on the outcome of judicial proceedings relating to the dismissal of the 43 workers, compounded by the Government’s silence over the measures taken to protect the trade unionists and the free exercise of trade union activities, would appear to corroborate the more general allegations of a lack of respect for trade union rights in the country.
6. 206. Under these circumstances, the Committee finds itself obliged to refer the Government to the conclusions of its last examination of this case [see 393rd Report, paras 577–580] and to reiterate its previous recommendations in their entirety.

The Committee’s recommendations

1. 207. In 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 failed to provide a reply to its recommendations, even though it has been requested several times to do so, including through an urgent appeal, and urges the Government to be more cooperative in the future.
   • (b) The Committee urges the Government to take the necessary measures to ensure that, in accordance with the decision of the Arbitration Board of the Court of First Instance dated 26 July 2013, trade union rights are respected at the Port of Toamasina, allowing the SYGMMA to carry out its trade union activities freely;
   • (c) The Committee urges the Government to provide detailed information on the situation of the 43 dismissed workers, as well as on the outcome of the appeal lodged in September 2015 against the decision by the Court of First Instance. If it is found that acts of anti-union discrimination were 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.