Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

Migration for Employment Convention (Revised), 1949 (No. 97) - Madagascar (Ratification: 2001)

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s indication in its report that a gender-sensitive national policy on migration for employment has been under consideration since the second half of 2023. With regard to laws and regulations, the Committee notes the adoption on 14 August 2024 of Act No. 2024-014 issuing the Labour Code, which contains a number of provisions relating to migration for employment (in particular sections 2(3), 59, 60, 61, 321 and 334). It also notes the Government’s indication that Decree No. 2013-594 of 6 August 2013, suspending the dispatch of Malagasy migrant workers to high-risk countries, remains in force. This encompasses especially the Gulf countries, and, under section 2 of the Decree, high-risk countries are defined as those which have not ratified the main conventions on human rights and gender equality or have not adopted any national legislation relating to them, apart from countries where there have been proven cases of ill treatment or degrading treatment inflicted on Malagasy migrant workers. The Government also indicates that the bilateral labour agreement between Madagascar and Mauritius has been updated and that the conclusion of a bilateral labour agreement with Comoros is under discussion. The Committee recalls the important role that bilateral agreements can play to ensure that migrant workers are able to benefit from the protections contained in the Conventions. In this context, it is important that the content of these agreements and arrangements be made available in understandable terms to those who benefit from them and that these agreements include adequate monitoring of their implementation and access to enforcement mechanisms and provision of social dialogue. (See 2016 General Survey on migrant workers, paragraph 163). The Committee requests the Government to provide information on all progress made regarding the adoption of a national policy on migration for employment, and on any new elements of national legislation relating to immigration and emigration and on any bilateral agreement concluded. The Committee also requests the Government to indicate how the content of bilateral agreements on migration for employment is communicated to the workers concerned and whether the implementation thereof is monitored, in particular through enforcement mechanisms and provision of social dialogue.

Articles 2 and 4; Annex I, Article 6; Annex II, Article 7. Information and assistance. The Committee notes the Government’s indications regarding the standard employment contract for emigrant workers, which is required to include the following: information on each party to the contract (surname, first name, title, exact address, nationality or legal status); type or duration of contract; place(s) of employment; worker’s job and nature of work; remuneration and frequency of payment; and arrangements for leave and rest periods. The contract also indicates the obligations to be fulfilled by employers, namely: to respect workers’ general living and working conditions with regard to accommodation, hygiene, safety at work and medical care; pay wages in full at the intervals stated in the contract, handing them over directly to employees with a supporting payslip; pay repatriation costs for employees in the event of termination of employment for whatever reason; inform the local employment agency or agency in Madagascar within seven days if there is any change of employment location, and at the same time submitting the amended contract previously signed by both parties and stamped by the authority responsible for employment in the country of recruitment; keep employees as contracted, which includes a prohibition on having employees work for other persons or transferring them to other locations not specified in the contract; to ensure regularization of the employee’s situation (work permit, residence permit); issue a certificate of employment duly signed by the employer or competent authority before the employee’s return to Madagascar; respect employees’ right to communicate freely with the embassy or honorary consul of Madagascar or the local employment agency; respect employees’ right to keep all their documents and/or personal equipment; and, respect the fact that termination of employment or expulsion of employees do not affect their acquired rights, including the right to receive due wages and other benefits. In this regard, the Committee notes that section 60 of the new Labour Code provides that the form of employment contracts for emigrant workers, procedures for drawing them up and conditions for such workers to the country are fixed by regulation further to the opinion of the National Council for Labour and Employment. As regards information supplied to migrant workers, the Committee notes the Government’s indication that the Migration Management Service at the Ministry of Labour, Public Service and Labour Legislation (Ministry of Labour) provides applicant migrant workers with information free of charge on procedures for leaving the country and the rights and obligations deriving from employment contracts. While noting this information, the Committee requests the Government to indicate whether regulations implementing section 60 of the new Labour Code have been adopted and, if so, to send a copy of them.The Committee also once again requests the Government to indicate whether the Migration Management Service or any other entity responsible for disseminating information on migration for employment provide women migrant workers with information specifically addressed to women.

Article 3. Misleading propaganda. The Committee notes the Government’s indication, in reply to its previous comment, that in order to combat misleading propaganda, licences issued to private employment agencies have been suspended, which means that recruitment is carried out directly between applicants for migration and the employing enterprises themselves. The Committee recalls once again that States which have ratified the Convention have an obligation to prevent false information being disseminated to nationals leaving the country and to combat false information regarding non-nationals arriving in the country. The Committee considers that the fight against misleading propaganda ought also to tackle propaganda targeting the national population (such as that propagating stereotypes of migrants (see General Survey of 1999 on migrant workers, paragraph 217). The Committee therefore requests the Government to provide information on specific measures taken to prevent and penalize the use of misleading propaganda relating to migration, from employment agencies or other actors, such as employing enterprises that recruit migrant workers, and on specific measures taken in collaboration with other national governments on this issue. The Committee also requests the Government to provide information on measures aimed at raising the awareness of the national population with regard to combating the propagation of stereotypes relating to migrants.

Article 6. Equal treatment. Further to its previous comment, the Committee notes with interest that section 2 of the new Labour Code states that migrant workers are “workers” as defined by that Code. It also notes the Government’s indication that foreign workers are subject to the same legislation as nationals and receive the same treatment in terms of remuneration, trade union membership (section 206 of the Labour Code), family benefits (family, maternity, prenatal and half-pay allowances), occupational accident and disease protection, and retirement pensions. The Committee also notes that section 1 of Decree No. 69-145 of 8 April 1969 establishing the Social Security Code provides that workers governed by the Labour Code are obliged to be affiliated to the National Social Insurance Fund (CNaPS), without any condition regarding nationality. Moreover, section 17 of Act No. 2007-37 of 14 January 2008 on investments in Madagascar offers the option to foreign nationals to maintain the social security scheme of their country of origin subject to prior authorization by the Ministry of Labour. Other exceptions to compulsory affiliation may derive from international agreements, such at that concluded with France (General Agreement between France and Madagascar of 8 May 1968), which affirms the principle of equal treatment for the nationals of both States in terms of the social security legislation in each country. With regard to taxation, section 01.03.05 of the General Tax Code (CGI) provides that persons whose customary residence is in Madagascar are liable to pay tax on wages and related revenue (IRSA) because of income earned in Madagascar, without any of these provisions imposing conditions regarding nationality. The CGI also provides that exceptions to the tax regime are permitted under international agreements (section 01.03.03). Lastly, the Government indicates that migrant workers benefit in general from better conditions of remuneration than nationals, and that no complaints have been brought before the courts for discrimination related to the policy and legislation on equal treatment for national and foreign workers. The Committee notes this information.

Article 8. Maintenance of residence in the event of incapacity for work.In view of the fact that the Government’s report does not reply to this question, the Committee once again requests the Government to confirm that, in accordance with Article 8 of the Convention, migrant workers who have been admitted on a permanent basis and members of their family who have been authorized to accompany or join them cannot be returned to their territory of origin when the said migrant workers are unable to follow their occupation by reason of illness contracted or injury sustained subsequent to entry.

Article 11. Definition of “migrant worker”. The Committee notes sections 58 and 59 of the new Labour Code, which distinguish between “displaced workers”, who are obliged to settle for a substantial period of time in a workplace other than their usual residence inside the country, and “migrant workers”, who, in order to accomplish the work agreed upon, will perform, perform or have performed, a paid activity in a State of which they are not nationals, whether they be emigrant or immigrant workers. The Committee notes that the new Labour Code applies to migrant workers.

Annex I, Article 5, and Annex II, Article 6. Supervision of employment contracts. As regards specific information given to migrant workers on the content of employment contracts, the Committee notes sections 60 and 61 of the new Labour Code, which provide that employment contracts for emigrant and immigrant workers must receive prior authorization from a labour inspector of the migration service at the Ministry of Labour. The Committee also notes that the Labour Code provides that a request for authorization of emigrant workers’ employment contracts must be made by the employer and that the form of employment contracts for emigrant and immigrant workers and procedures for drawing them up shall be fixed by regulations. The Committee therefore requests the Government to indicate whether regulations have been adopted to implement sections 60 and 61 of the new Labour Code. It also requests the Government to indicate what measures have been put in place to ensure that migrant workers, whether applicants for immigration or emigration, receive their contracts before departure or in a reception centre on arrival. The Committee further requests the Government to indicate what penalties are imposed if these measures are not respected and, if applicable, to provide information on the number of violations recorded and on the type of penalties imposed.

Application in practice. The Committee notes that the Government’s report does not contain any statistical information on the employment of nationals aboard or of foreign nationals in Madagascar, disaggregated by sex, nationality and occupation. However, the Committee notes the information included in the report on the application of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), according to which the establishment of a database on migration for employment is one of the national priorities identified by the Government and social partners and that related activities are being undertaken in close collaboration with the Southern Africa Migration Management (SAMM) project. The Committee requests the Government to provide information on the measures taken as part of the SAMM project as well as the collection of data on migration and emigration for employment. It once again encourages the Government to supply statistics on the employment of nationals abroad and foreign citizens in Madagascar, disaggregated by sex, nationality and, if possible, sector of activity, and to mention any practical difficulties encountered in the application of the Convention. The Committee also requests the Government to indicate whether the courts or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention and, if so, to supply copies of these decisions.