Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information contained in the Government’s report. In particular, it notes that the Government indicates that the draft new Labour Code has been adopted by the Parliament and that it is currently before the Presidency. The Committee notes, however, that the Government’s report submitted for the examination of Convention No. 87 indicates that the draft new Labour Code is currently being debated in the Senate before being referred to the National Assembly for adoption. The Committee therefore assumes that the new Labour Code has not yet been promulgated and requests the Government to provide a copy of the text.

Article 4 of the Convention. 1. The Committee notes that section 109 of the draft new Labour Code, in its 2003 version, provides that the representativity of employers’ and workers’ organizations participating in social dialogue at national level "is established through particulars provided by the organizations concerned and the labour administration". Noting that the wording of section 109, implying active participation by the labour administration in the establishment of criteria of representativity, may give rise to a certain discretion being exercised by the public authorities, the Committee, like the Committee on Freedom of Association in its examination of Case No. 2132, recalls that objective, pre-established and precise criteria to determine the representativity of an organization of employers or workers should exist in legislation, so as to avoid any possibility of bias or abuse and that this assessment should not be left to the discretion of governments (see General Survey on freedom of association and collective bargaining, 1994, paragraph 240, and 331st Report of the Committee on Freedom of Association, paragraph 588). The Committee therefore requests the Government to adopt the necessary measures to review section 109 of the draft new Labour Code so that the representativity of employers’ and workers’ organizations participating in social dialogue at national level is determined according to objective, pre-established and precise criteria such as, for example, the obtaining of a certain percentage in a vote by the employers or workers concerned.

2. The Committee notes that, as with the Labour Code currently in force, section 148 of the draft new Labour Code provides that the conclusion of collective agreements is compulsory where an enterprise normally employs 50 workers. In this regard, the Committee notes that the Government’s report indicates that approximately ten collective agreements are currently in force in Madagascar, most of which relate to large companies employing over 1,000 persons. The Committee therefore requests the Government to indicate what steps it intends to take in the future to promote collective bargaining in enterprises employing fewer than 50 workers.

3. In its previous comments, the Committee invited the Government to provide additional information on the provisions which apply to the collective negotiation of conditions of work for maritime workers governed by the Maritime Code and for public servants not engaged in the administration of the State, as well as information on the number of collective agreements and the number of workers covered. In this regard, the Committee notes that the Government’s report indicates that the General Maritime Trade Union of Madagascar (SYGMAA) was legally constituted in 2004 and that staff not engaged in the administration of the State ("non-established" staff) are not subject to Act No. 2003-011 of 3 September 2003 establishing the conditions of service of public servants and enjoy the right to strike under section 13 of Act No. 94-025 of 17 November 1994 which concerns the conditions of service of "non-established staff of the State". However, the Committee notes that the Government’s report does not contain any information on the provisions concerning seafarers’ right to bargain collectively, and that it indicates that Act No. 94-025 is silent as regards the enjoyment of the right to bargain collectively by "non-established staff of the State", but prohibits discrimination on the grounds of trade union membership and recognizes the necessity of the right to organize and freedom of association for defending collective interests.

The Committee recalls that, under the Convention, both seafarers and public servants not engaged in the administration of the State must be able to enjoy the right to collective bargaining in the same manner as other categories of workers and requests the Government to take the necessary measures to ensure that specific provisions are adopted concerning the collective bargaining rights of seafarers governed by the Maritime Code and of public servants not engaged in the administration of the State.