Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Repetition

The Committee notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE), received on 1 September 2022.

Article 1 of the Convention. Protection against discrimination. Grounds of discrimination. Legislation. For several years, the Committee has been emphasizing that neither the Labour Code nor the Civil Service Regulations prohibit discrimination on all of the grounds enumerated in the Convention. Discrimination on the basis of colour and social origin is not prohibited by the Labour Code (see section 261) and discrimination on the basis of race, colour and social origin is not prohibited by the Civil Service Regulations (see section 5). The Committee notes the Government’s indication in its report that a preliminary draft Bill to issue a new Labour Code has been submitted to the National Labour Council (CNT) and contains provisions that are in conformity with the Convention, as well as definitions of the concepts of direct and indirect discrimination and sexual harassment at the workplace. It notes, however, that the Government did not provide a copy of this draft text with its report nor has it provided the envisaged new wording of section 261 of the Labour Code. In this regard, the Committee observes that, in the Memorandum of technical comments on the draft revision of the Labour Code that it provided to the Government in March 2021, the International Labour Office (ILO) indicated that, in the version that had been submitted to it for comment in February 2021, the proposed revision of the Labour Code did not affect section 261 of the current Labour Code. It also notes the Government’s indication that new General Regulations for Public Employees (SGAP) are being prepared, with a view to harmonizing the provisions of the Civil Service Regulations and the General Regulations for Contractual Public Employees. The Government specifies that, in accordance with section 14 of the draft SGAP, “there is no discrimination on the basis of gender, religion, opinion, origin, ancestry, political conviction, disability, membership or not of a trade union”. However, the Committee notes with concern that this provision still does not prohibit discrimination on the basis of race, colour and social origin and does not define indirect discrimination. The Committee also notes the general information provided by the Government on the penalties envisaged for violations of section 261 of the Labour Code and the indication that information is still being collected on administrative decisions relating to the prohibition of discrimination. In this regard, the Committee recalls that the monitoring and enforcement of anti-discrimination laws by the courts is an important aspect of the effective implementation of the Convention. It is therefore necessary to collect and publish detailed information on the number, nature and outcome of complaints to the courts and administrative bodies in order to assess the effectiveness of procedures and mechanisms (2012 General Survey on the fundamental Conventions, paragraphs 868 and 871). The Committee therefore requests the Government to: (i) provide precise updated information on the current revision of the Labour Code, and particularly section 261, to ensure that it explicitly prohibits discrimination on all of the grounds enumerated in the Convention, including colour and social origin, and that it explicitly covers indirect discrimination; (ii) take the necessary measures to amend section 14 of the draft General Regulations for Public Employees to ensure that it explicitly prohibits discrimination on all of the grounds enumerated in the Convention, including race, colour and social origin, and that it includes a definition of discrimination that explicitly encompasses indirect discrimination; and (iii) provide detailed information on the interpretation and effect given by the courts in practice to section 261 of the Labour Code and section 5 of the Civil Service Regulations (or section 14 of the General Regulations for Public Employees, if they have been adopted), with a copy of any court or administrative decisions handed down under these provisions.

Discriminatory job vacancy announcements. In its previous comments, the Committee noted the Government’s indication that it was envisaging the adoption of provisions to regulate, in conformity with the requirements of the Convention, vacancies advertised on the radio or through notices in public places, which impose affiliation to a certain religion as a condition for recruitment or specify that the job is solely for men or women. It notes that, although the Government recognizes that this is a common discriminatory practice in all sectors, it still does not refer to any specific measures that have been adopted or are envisaged to regulate this practice and does not indicate the role played by the labour inspection services in this regard. The Committee therefore expresses the firm hope that the Government, in collaboration with employers’ and workers’ organizations, will take all the necessary measures to ensure the application in practice of the national legislation and prohibit any form of direct or indirect discrimination on all of the grounds enumerated in the Convention, including religion and sex, in job vacancy announcements, including in advertisements on the radio or notices in public places. It once again requests the Government to provide information on any progress achieved in this regard.

Domestic workers. The Committee previously invited the Government to take the necessary measures to ensure that the provisions of the Labour Code apply in practice to men and women domestic workers (some of whom work without a written employment contract) and to provide detailed information on the number and outcome of the controls carried out by the labour inspection services on this subject. In this connection, it notes that, in its Memorandum of technical comments of March 2021 referred to above, the Office recommended specifying in section 1 of the Labour Code that it applies to men and women domestic workers, particularly in relation to its provisions respecting non-discrimination and working conditions. The Committee welcomes the indication by the Government that, on 11 June 2019, Madagascar ratified the Domestic Workers Convention, 2011 (No. 189). It also notes the Government’s reiterated indication that domestic workers enjoy the same rights as other workers, as the labour legislation is applicable to them. The Committee notes with regret that, according to the Government, no statistical data is available on the number and outcome of the controls carried out by labour inspectors concerning the working conditions of domestic workers. The Government specifies that the legislation in force does not yet permit effective intervention by labour inspectors in this regard, due in particular to the principle of the inviolability of the home, which makes it impossible for labour inspectors to enter the homes of private individuals who employ domestic workers. The Committee expresses the firm hope that the Government will take all the necessary measures to ensure that men and women domestic workers benefit, not only in law, but also in practice, from the protection afforded by the provisions of the Labour Code, particularly in relation to non-discrimination and working conditions. It therefore requests the Government to: (i) provide specific information on any measures adopted or envisaged for this purpose; and (ii) provide information on any measures adopted or envisaged to facilitate the access of labour inspectors to the homes of private individuals employing men and women domestic workers.