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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Madagascar (Ratification: 1960)

Follow-up to the conclusions of the Committee on the Application of Standards (International L abour Conference, 111th Session, June 2023)

In its previous comment, the Committee requested the Government to report any progress achieved in the implementation of the conclusions of the Conference Committee on the Application of Standards (Conference Committee). The Committee recalls that in June 2023 the Conference Committee requested the Government to:

• take all necessary steps in order to ensure that the new Maritime Code guarantees to seafarers the right to freely establish and join organizations of their own choosing without previous authorization;
• organize as soon as possible the elections for the designation of workers’ representatives;
• refrain from intervening in the activities of workers’ and employers’ organizations, including in the designation process of their representatives in the various social dialogue bodies;
• ensure that unilateral recourse to compulsory arbitration as a way to avoid free and voluntary collective bargaining is employed only in very limited circumstances and take the necessary measures to amend sections 220, 225 and 228 of the Labour Code to bring them into conformity with the Convention;
• immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento;
• refrain from using the criminal law to target trade unionists;
• amend all provisions of the Criminal Code hindering the right to freedom of association of workers and employers; and
• provide a copy of the Maritime Code once adopted and detailed information to the Committee of Experts before 1 September 2023 on the outcome of any meeting concerning allegations of anti-union acts in the maritime sector, on any developments in the adoption of the Maritime Code and on the factors that have prevented the holding of elections for staff representatives since 2015.

The Committee notes the information provided by the Government on these matters, to which it refers below in the context of its examination of the points raised in its previous comments. The Committee also takes note of Law 2024-014 of 14 August 2024 on the Labour Code.

Trade union rights and civil liberties. The Committee previously urged the Government to take the necessary measures to quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento to a sentence of imprisonment for having posted on social media the results of meetings held with the management of an enterprise in the textile sector in the course of the performance of his trade union functions. The Committee notes with deep concern that the Government’s report does not contain any information on the action taken in this regard, and instead emphasizes that Mr Sento’s prison sentence is not related to his status as a trade union leader. Under these conditions, the Committee once again firmly recalls that the resolution concerning trade union rights and their relation to civil liberties adopted by the Conference in 1970 reaffirms the essential link between civil liberties and trade union rights, which was already emphasized in the Declaration of Philadelphia (1944), and enumerates the fundamental rights that are necessary for the exercise of freedom of association, which include: the right to freedom and security of person and freedom from arbitrary arrest and detention; freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontier; and the right to a fair trial by an independent and impartial tribunal (see the 2012 General Survey on the fundamental Conventions, paragraph 59). The Committee once again urges the Government to take the necessary measures to immediately and unconditionally quash the conviction of Mr Zotiakobanjinina Fanja Marcel Sento.

Article 2 of the Convention. Workers governed by the Maritime Code. The Committee previously noted that a new Maritime Code was to be adopted and requested the Government to ensure that it provided for the right of seafarers to establish and join trade unions. The Committee notes the ratification in 2023 of the Maritime Labour Convention, 2006, in its amended version (MLC, 2006), and the Government’s indication that the draft Maritime Code has been referred to the Council of Ministers for adoption. The Committee requests the Government to provide a copy of the adopted Maritime Code and to indicate the specific provisions setting out the right of seafarers to establish and join trade unions.

Articles 2 and 3. Right to organize and free exercise of trade union activities. In its previous comments, the Committee noted the observations of the Christian Confederation of Malagasy Trade Unions (SEKRIMA) concerning allegations of restrictions on the right to organize, and the allegations of the International Trade Union Confederation (ITUC) that the right to organize is not fully guaranteed and that the legal provisions on the election of staff representatives are ineffective. The Committee also previously requested the Government to provide explanations concerning the absence of elections of staff representatives since 2015 and the measures taken to ensure the effective application of the legislation on the promotion of trade union rights (sections 136 et seq. of the Labour Code and Decree No. 2011-490 and its implementing order No. 28968-2011). The Committee notes the Government’s indications that: the application of these texts requires the adoption of orders on representativeness, and the adoption of the last order on representativeness was suspended due to the COVID-19 pandemic, and the adoption of a new representativeness order for the period 2022–24 is under way, following the receipt of the reports on the election of staff from the labour inspection services. However, the Committee notes that the period 2022–24 is coming to an end and that the Government had already indicated during the discussion in the Conference Committee that a representativeness order was to be published in June 2023. The Committee therefore requests the Government to provide information on the procedures for the adoption of the new representativeness order.

Representativeness of workers’ and employers’ organizations. In its previous comments, the Committee requested the Government to provide its comments on the serious allegations made by the General Confederation of Workers’ Unions of Madagascar (FISEMA) concerning the unilateral changing of the names of its representatives by the Government, and by the Randrana Sendikaly Alliance that the Ministry of Labour: (i) refused to validate the result of the staff delegate elections in favour of the Alliance in an enterprise in the sugar industry; (ii) encourages candidates who are not members of trade union organizations to occupy trade union posts; and (iii) unilaterally appointed new administrators in the National Social Welfare Fund. The Committee notes that the Government denies that it modified unilaterally the names of the FISEMA representatives, indicating that this issue arose from an internal dispute in the union, which first sent the Ministry of Labour two separate proposed nominations, before sending a third common proposal, on which the appointment was then based. While noting this information, the Committee observes that, according to the FISEMA, the matter was referred to the Council of State, which ruled in favour of the FISEMA. The Committee also notes that the Government does not reply to the allegations of the Randrana Sendikaly Alliance. The Committee accordingly reminds the Government that it must refrain from interfering in the activities of workers’ and employers’ organizations, including in the process of the designation of their representatives on the various social dialogue bodies. The Committee therefore requests the Government to respond to the allegations of the Randrana Sendikaly Alliance, provide information on the holding of elections for the designation of workers’ representatives and on the process for the appointment of representatives of workers and employers on the various social dialogue bodies. The Committee also refers in this regard to its comments adopted in 2023 on the application of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Compulsory arbitration. The Committee previously urged the Government to take the necessary measures to amend sections 220, 225 and 228 of the Labour Code, which provide that if mediation fails, the collective dispute shall be referred by the Ministry of Labour and Social Legislation to an arbitration procedure, whose award brings an end to the dispute and the strike, and which provide for the possibility of requisitioning striking employees in the event of the disruption of public order. The Committee notes that the aforementioned articles were amended as part of the reform of the Labour Code enshrined in Act No. 2024-014 of 14 August 2024. In this respect, the Committee notes with interest that: (i) the matter may only be referred directly to the arbitration body by the local Inspector of Labour and Social Legislation if the collective dispute concerns one of the essential services in the strict sense of the term or in the event of an acute national crisis (new section 288); and (ii) with regard to the possibility of requisitioning striking employees, the condition of “disruption of public order” has been replaced by that of “acute national crisis” (new section 296). While welcoming these improvements, the Committee notes that although recourse to compulsory arbitration to put an end to a collective labour dispute can no longer be imposed by the public authorities on their own initiative, the wording of new section 288 does not rule out recourse to arbitration at the request of only one of the parties, which remains incompatible with the Convention. In light of the above, the Committee requests the Government to take the necessary steps to amend new section 288 to ensure that recourse to compulsory arbitration, outside cases where strikes can be limited or even prohibited, is only possible if both parties to the dispute so agree.