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

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Madagascar (Ratification: 1961)

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Article 1 of the Convention. Scope of application. Private sector and public service. The Committee notes that, under the terms of section 1(3) of Act No. 2024-014 of 14 August 2024 issuing the Labour Code, self-employed workers and workers governed by the Maritime Code are excluded from the scope of application of the Labour Code. In this regard, the Committee notes that, although section 7.5.17 of the Maritime Code prohibits discrimination for reasons related to the origin of persons, and their colour, sex, real or perceived membership of an ethnic group or nation, race and religion, it does not prohibit discrimination on grounds related to political opinion. Recalling that the Convention applies to all workers in all sectors, the Committee requests the Government to indicate the manner in which: (i) self-employed workers are protected against discrimination in employment and occupation on the basis of all the grounds enumerated in the Convention; and (ii) workers in the maritime sector are protected against discrimination in employment and occupation on the basis of political opinion. In the absence of an applicable text, the Committee requests the Government to indicate whether it plans to adopt legislation protecting these specific categories of workers.

Article 1(1)(a). Sexual harassment. Legislation. Further to its previous comment, the Committee notes with satisfaction that section 10 of the new Labour Code provides that: (1) sexual harassment at work is defined as “any unwanted behaviour of a sexual nature that interferes with work, affects employment or normal career progression or creates an intimidating work environment”; and (2) “no employed person may be subject to a penalty, discrimination in their career or work, or dismissal for having resisted acts of harassment by an employer, the employer’s representative or any other person who, in abuse of the authority conferred by their functions, relations or position in the enterprise, has issued instructions, made threats, imposed constraints or exerted pressure of any type on the employed person with a view to obtaining favours of a sexual or other nature for themselves or for others”. The Committee nevertheless notes that the definition of sexual harassment contained in section 333bis of the Penal Code does not cover behaviour which has the effect of creating an intimidating, hostile or humiliating work environment. Moreover, the Committee notes that, in accordance with section 13 of the Labour Code, the employer is “required to take appropriate measures […] to prevent violence and harassment in the world of work”. On this point, the Committee notes the Government’s indications that the employer is required to: (1) take all the necessary measures, including awareness-raising activities, to prevent sexual harassment; (2) include provisions regarding sexual harassment in internal enterprise rules; (3) inform employees through notices of the competent authorities and applicable penalties; and (4) carry out an investigation without delay when an accusation of sexual harassment is made in the enterprise and, if necessary, take precautionary measures. The Committee also notes that, under the terms of section 357 of the Labour Code, “any person found guilty of sexual harassment […] shall be punished in accordance with the provisions of the Penal Code” and that, according to the Government’s indications: (1) an employee who reports being a victim of sexual harassment and the employee’s union may turn to the labour inspection services to obtain an amicable settlement; (2) labour inspectors shall refer such an employee to the police or the courts if the employee wishes to obtain a criminal conviction; (3) the employee does not have to provide absolute proof, as a series of indications is sufficient, as it is for the employer to provide proof to the contrary; (4) the employer is required to punish an employee who is found guilty of sexual harassment; and (5) when a case of sexual harassment goes to court, it is generally dismissed for lack of evidence but, where that is not the case, damages are awarded. In this regard, the Committee notes with regret that the Government has once again not provided information on the number of cases of sexual harassment dealt with by labour inspectors. Moreover, the Committee notes that, in order to address the prevalence of violence and harassment against trainees in technical and vocational training establishments, the Ministry of Technical Education and Vocational Training (METFP) has requested the support of the ILO Country Office for Madagascar, Comoros, Mauritius and the Seychelles in order to raise the awareness of teachers, those responsible for the establishments and trainees on preventing and combating violence and sexual harassment, and that a training course was provided in June 2022.

The Committee requests the Government to: (i) indicate the manner in which the provisions of section 10 of the Labour Code are articulated with those of section 333bis of the Penal Code and whether it plans to amend the latter so that it covers sexual harassment due to a hostile environment, particularly at work; and (ii) if so, to provide information on any progress made in this regard. The Committee also urges the Government to provide detailed information on: (i) any measures taken or envisaged to raise awareness concerning the prevention of, and action to combat, sexual harassment among employers, workers and their respective representatives; as well as teachers, trainees and those responsible for technical and vocational training establishments; and (ii) the number of cases of sexual harassment dealt with by labour inspectors and their outcome, as well as the number of court rulings. Noting that the General Regulations applicable to public officials do not contain any provision on sexual harassment, the Committee requests the Government to: (i) take the necessary measures to ensure that the General Public Service Regulations (SGAP), which will replace the General Regulations applicable to public officials, explicitly define and prohibit both quid pro quo and hostile working environment sexual harassment; and (ii) provide information on any progress achieved in this regard.

Discrimination on grounds of colour. Further to its previous comment, the Committee notes with regret that, with reference to action to combat discrimination against persons affected by albinism, the Government confines itself to making reference to Decree No. 64-495 of 18 November 1964 establishing an employment service, which allows employers to apply discriminatory reasons for recruitment, while at the same time indicating that the national legislation does not authorize any form of direct or indirect discrimination. In this regard, the Committee notes that: (1) in December 2022, the United Nations Sustainable Development Group reported that, between January and August 2022, over 20 persons affected by albinism had been abducted and subjected to ill-treatment; and (2) in February 2024, the Act on the special protection of persons affected by albinism, which had been adopted in December 2023, was declared to be unconstitutional. The Committee requests the Government to provide information on: (i) any measures adopted or envisaged to raise the awareness of employers, workers and their respective representatives; and labour inspectors and magistrates concerning the need to protect persons affected by albinism against discrimination in employment and occupation; and (ii) any progress achieved in the enactment of a law on the protection of these persons.

Article 1(1)(b). Discrimination on grounds of real or perceived HIV status. The Committee notes with regret that the Government has not provided information in reply to its previous comment. The Committee also notes that: (1) under the terms of Decree No. 2017-530 on the reorganization and operation of the “Rights and HIV” Commission, its mission is to establish “a healthy and secure climate for the legal, cultural, social and economic development of persons infected” with HIV, and it is responsible for, among other areas, strengthening partnership with donors to combat discrimination and stigmatization against these persons; and (2) a new National Strategic Plan (PSN) for persons living with HIV was due to be adopted for the period 2023–28. The Committee therefore requests the Government to provide detailed information on any measures adopted or envisaged: (i) within the framework of the PSN 2023–28, if it has been adopted, to combat stigmatization in employment and occupation of workers with HIV or perceived to be infected with HIV; (ii) by the “Rights and HIV” Commission to strengthen partnership with donors in the context of this action; and (iii) to allow evaluation of the impact of the measures adopted to combat discrimination on grounds or real or perceived HIV status and stigmatization in employment and occupation, particularly at the time of recruitment, for example by recording the number of complaints lodged with and dealt with by the labour inspection services, the courts or any other competent body.

Children and workers with disabilities. The Committee notes that: (1) the Sectoral Education Plan (PSE) 2018–2022 sets the objective of raising to 15 per cent by 2022 the number of children with disabilities enrolled in the formal education system or in specialized schools; and (2) the Madagascar Emergence Plan 2023–2038 provides for the construction of training centres adapted to persons living with disabilities. The Committee requests the Government to: (i) indicate the percentage of children with disabilities enrolled in school as a result of the implementation of the PSE 2018-22; and (ii) provide information on the number of training centres constructed for persons with disabilities, the number of persons attending these centres and the results in terms of vocational integration.

Articles 1 and 2. Equality of opportunity and treatment for men and women. Further to its previous comment, the Committee notes the statistical data provided by the Government, according to which the primary school attendance of girls rose in overall terms over the period 2018–22, and was even higher than that of boys in 2021 and 2022. The Committee also notes the Government’s indications that: (1) Act No. 2022-018 of 13 December 2022 on the general policy for the education system in Madagascar (LOSEM) provides in section 12 that the State shall be engaged in promoting the education of girls and the literacy of women through the removal of socio-economic and cultural barriers and other obstacles that hinder the development of girls and women in the education process; (2) although the LOSEM guarantees, without the slightest discrimination, access to progressive compulsory public education for a period of ten years, of which the first cycle is free, the school drop-out rate of girls is still very significant in view of, among other factors, the gender-based violence at school, the many cases of early pregnancies, and the pressure exerted by parents, who may be pushed by poverty to send girls out to work or to be married as soon as they reach the age of puberty; and (3) the Ministry of National Education has adopted several measures to reduce the school drop-out rate of girls, including full educational courses on sexuality (ECS) and the introduction of “education on life in harmony” (EVH), which has the objective of instilling in students values such as mutual respect and other individual and societal values to combat risky behaviour, and in particular to reduce the early pregnancy rate. The Committee further notes, again from the Government’s indications, that a number of measures were planned within the framework of the PSE 2018–2022, including: (1) many construction, rehabilitation and extension works for classrooms, to enable all children to have access to schooling; (2) support for school meals; (3) the establishment of a system of study grants for meritorious girls from poor backgrounds with a view to achieving gender equality, as well as equality for students from divergent social backgrounds; and (4) the development of non-formal education, for example in the form of literacy and catch-up courses (CRAN courses) with a view to the reintegration into the formal education system of children who dropped out of school early, including girls who are mothers. In this regard, the Committee welcomes the information that, in 2020, 40,106 children who had dropped out were provided with CRAN courses (they numbered 33,866 in 2018). However, it notes with regret that in 2020 none of the girls targeted by study grants received them. The Committee also notes the recognition by the Government that there are still many challenges to be addressed in relation to gender equality, such as: (1) the implementation of the LOSEM, and the continuation of the ECS and the EVH; (2) the provision of study grants and sanitary kits to girls to facilitate them staying in the school system; (3) the availability of training and certification without gender discrimination, irrespective of the subject; and (4) the establishment of vocational training centres for women with a view to facilitating their labour market participation. The Committee further notes that the ILO Decent Work Country Programme (DWCP) which had been concluded for Madagascar for the period 2021–23 was due to contribute to the empowerment of all women and girls by bringing an end to all forms of discrimination against them, strengthening the employability of women and developing financial instruments with a view to reinforcing entrepreneurship of women and facilitating their access to the labour market. The Committee notes that the Madagascar Emergence Plan 2023–2028 follows the same path. In this regard, the Government indicates that it wishes to develop structures to care for young children with a view to freeing up the capacity of women to work. The Committee requests the Government to provide detailed information and statistical data on the results achieved following the implementation of the various plans, measures and programmes referred to above in terms of: (i) combating school drop-outs by girls and facilitating their reintegration into school; (ii) the provision of training to girls and women; (iii) the empowerment of women; and (iv) combating discrimination against women and promoting their labour market integration. Noting the lack of information provided in response on this point, the Committee once again requests the Government to provide information on the awareness-raising activities carried out for workers, employers and their respective representative organizations, labour inspectors, judges and society in general with a view to combating gender stereotypes and the occupational segregation of women.

With reference to the public sector, the Committee notes the Government’s indications that: (1) recruitment is exempt from discrimination on the basis of sex as the only criterion is compliance with the requirements set out in the job classification and the description of the job to be filled; and (2) appointment to high-level state positions, which are so-called “political” positions, is subject to the discretionary power of the President of the Republic. In this regard, the Government specifies that, in order to ensure the objectivity of this type of appointment, a provision in the preliminary draft of the Bill to issue the SGAP requires respect for the classification of jobs, and that any woman or man who meets the required criteria may therefore be appointed. The Committee notes the statistical data provided by the Government on the distribution of men and women in the various categories of the public service. The Committee requests the Government to continue providing: (i) detailed statistics on the distribution of women and men in the various occupational categories of the public service; and (ii) information on any affirmative measures adopted or envisaged to enable women to gain access to a broader range of employment opportunities, including managerial positions and positions of responsibility in the public service.

Export processing zones. The Committee notes the information provided by the Government in response to its previous request, according to which: (1) between January and August 2023, some 59 establishments in export processing zones (EPZs) were inspected by labour inspectors; (2) the inspectors examined various aspects of conditions of work, but did not detect any violations relating to the Convention; and (3) the reports of the labour inspection services do not include information on specific awareness-raising and information activities on protection against discrimination in employment and occupation in EPZs. The Committee also notes that, according to the information provided by the Government: (1) Within the framework of the Vision Zero Fund II (VZF II) project, the National Labour Institute (INTra), in partnership with the ILO, carried out 14 training sessions for members of representative workers’ organizations, and particularly those in EPZs, during which it was possible to address all the problems relating to the labour relationship; and (2) In 2022 and during the first quarter of 2023, four companies with the status of export processing enterprises benefited from training courses provided by the INTra.

Article 5. Special protection measures. The Committee notes with satisfaction that the wording of the new Labour Code has taken into account the comments that it had previously made on this subject and that the Code now provides that: (1) “pregnant women may not be kept in a job […] recognized as giving rise to risks and shall be assigned to a job that is suitable for their state of pregnancy” (section 139); and (2) that pregnant and nursing women shall not be employed at night for a period of at least 16 weeks before and after the birth of the child, of which at least eight weeks shall be prior to the presumed date of confinement (section 146). Noting that under the terms of section 137 of the Labour Code, a decree shall determine the nature of the work prohibited for pregnant and nursing women, the Committee requests the Government to provide a copy of the decree.

Enforcement. The Committee notes that, in accordance with the new Labour Code adopted in August 2024: (1) Infringements shall be referred to the simple police court or to the criminal court of first instance (section 381 of the Labour Code); and (2) Any person who has made use of race, colour, religion, political opinion, national extraction or social origin, state of health, disability, trade union membership, age, gender, sex and a situation related to pregnancy to make directly or indirectly a distinction or exclusion or grant a preference in relation to access to employment, remuneration, penalties, conditions of work, employment and career progression, dismissal or any other aspect of the treatment of workers or job applicants shall be liable to a fine of between at least 1 million Malagasy ariaries and 4 million ariaries and, in the event of a repeat offence, the fine shall be doubled and combined with a sentence of imprisonment of between one and six months (section 356). The Committee notes that the sentence of imprisonment, which could previously be imposed as a punishment for discriminatory treatment, can now only be imposed in the case of repeat offences and that the duration of the sentence, which was previously one of between one and three years of imprisonment, has now been reduced to a period of between one and six months. The Committee requests the Government to: (i) provide information on the number, nature and outcome (the penalties imposed and compensation awarded) of cases or complaints relating to discrimination in employment and occupation which have been referred to the competent judicial authorities; and (ii) evaluate, in the light of these cases, the relevance and dissuasive nature of the penalties envisaged by the new Labour Code.