Informe provisional - Informe núm. 327, Marzo 2002

1. 645. The Federation of Workers’ Trade Unions of Madagascar (FISEMA), the Confederation of Christian Trade Unions of Madagascar (SEKRIMA), the Independent Trade Unions of Madagascar (USAM), the Federation of Health Workers’ Unions (FSMF), the Federation of Informal Sector Workers’ Unions (SEMPIF TOMAVA), and various other Malagasy trade unions, presented the complaint in the present case in communications dated 2 and 28 May and 18 July 2001. The Government sent its observations in communications dated 13 September 2001 and 29 January 2002.
2. 646. Madagascar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 647. In their communications of 2 and 28 May 2001, the complainants allege that the Government has decided unilaterally to begin interfering in the management of social funds, including the National Social Security Fund (CNaPS), by adopting Decree No. 99-673 of 20 August 1999. Before the Decree in question, the Governing Board of the CNaPS consisted of four government representatives, eight employers’ representatives and eight workers’ representatives, and the presidency alternated between the workers’ and employers’ groups. The new decision to restructure the Board altered its composition, so that it now consists each of six workers’, employers’ and government representatives, with a new rotation system which allows the Government a turn in the presidency. In the light of the agreements which have always existed with the Ministry of the Public Service, Labour and Social Law, the social partners consider that the principle of tripartism is the basis of social dialogue and that it is for them, under state supervision, to manage social institutions. Social dialogue was accordingly suspended following the promulgation of the Decree.
2. 648. The complainants state further that the Decree was subsequently declared unconstitutional by the High Constitutional Court of Justice in a ruling of 23 August 2000 (the ruling in question is attached).
3. 649. The complainants maintain that, in the light of the Ministry’s position and in the absence of any response to the request for dialogue by the social partners, the latter decided not to participate in the discussions of the National Employment Council (a body which examines texts as a basis for a revised Labour Code).
4. 650. Furthermore, the complainants draw attention to numerous acts of interference by the Ministry in the internal affairs of the trade unions. These include: interference by the Ministry in elections of worker representatives to serve on various tripartite bodies; organization of missions involving workers’ and employers’ delegates without the knowledge of their confederations for the purpose of appointing them to regional tripartite bodies; and requests for proposals for candidates other than those already put forward by the confederations for membership of these bodies.
5. 651. The complainants also alleged that there have been infringements of the right of collective bargaining. According to them, Act No. 94-029 respecting the Labour Code has been superseded by Decree No. 97-1355, under the terms of which the social partners may not engage in collective talks on conditions of employment without the authorization of the Ministry for the Development of the Private Sector and Privatization.
6. 652. Lastly, although the complainants acknowledge that a tripartite memorandum of understanding was concluded on 8 May 2000 and instituted, among other things, mechanisms for the resumption of social dialogue, they also consider that the Government, despite the ruling that Decree No. 99-673 was unconstitutional, has thus far failed to make the changes needed to allow the resumption of social dialogue, since it continues to interfere in the prerogatives of the trade unions, including their right to decide the number of their representatives within the CNaPS.
7. 653. In a subsequent communication dated 18 July 2001, the complainants state that the Ministry of the Public Service, Labour and Social Law interferes in trade union affairs by virtue of section 1(3) (new) of Decree No. 2000-291 of 31 May 2000, which requires trade unions to provide a list of their members, a copy of their by-laws and the names of their serving officers.
8. 654. Furthermore, the complainants state that, following two meetings with the Ministry on 22 June and 5 July 2001, the Ministry presented the trade unions with a proposed decree concerning the number and nomination of trade union representatives to the CNaPS Board. According to the complainants, the proposed decree, which assigns six workers’ representatives from the most representative multisector trade unions and rescinds Decree No. 99-673, must also be regarded as unconstitutional in that it deprives the trade unions of the right to appoint the sixth representative; the Ministry itself reserves the right to appoint that representative, on the grounds that a number of staff delegates elected mostly on non-union lists (often at the instigation of the employers) must have a representative on the CNaPS Board.

B. The Government's reply

1. 655. In its communication of 13 September 2001, the Government states that the consultations initiated by the Government following the suspension of social dialogue by the social partners on 28 September 1999 is clear evidence of the willingness of the state authorities to resolve the problem of social dialogue in Madagascar in a manner acceptable to all parties. Following the signature of the tripartite memorandum of 8 May 2000, an ad hoc commission was set up and has held nine tripartite meetings with a view to carrying out its specific mandate, namely, to consider solutions to the problem of the CNaPS, to determine representative organizations and to express opinions on the Labour Code.
2. 656. The Government states that the ad hoc commission discussions have produced some points of consensus, except with regard to the problem of the CNaPS. Considering that the nomination of representatives of the social partners to the CNaPS Board depends on the representativity of the employers’ and workers’ organizations concerned, the ad hoc commission at its meeting on 2 June 2000 agreed that the representativity of trade union organizations would be assessed by collating data obtained from labour inspections and data provided by the trade unions. It therefore asked the trade union organizations to provide the Ministry with information regarding the criteria of representativity applied by their regional unions. However, on 25 July, the worker co-president of the ad hoc commission admitted that no information had been received and that the trade unions were unable to obtain all the necessary information for the time being. The Government adds that the employers’ organizations for their part have supplied the information requested. Finally, concerning section 1(3) (new) of Decree No. 2000-291 of 31 May 2000, the Government indicates that it was only trying to assess the real representativity of trade unions by applying to them the objective criteria of number of affiliates.
3. 657. The Government also states that the Ministry invited the social partners to send their written proposals on the CNaPS Board by 4 May 2000 for submission to the competent authorities. The workers’ organizations did not respond favourably.
4. 658. Lastly, the Government maintains that a number of the Ministry’s activities which require tripartite consultation have been held up by the attitude of the social partners. According to the Government, the conduct of the trade unions has been the cause of recent delays, and the unions have used delaying or political tactics to block the smooth running of State affairs.

C. The Committee's conclusions

1. 659. The Committee notes that this case concerns allegations of government interference in the internal affairs of trade unions, which is claimed to have led to a suspension of social dialogue in 1999. In particular, the Committee notes that the main cause of that suspension is said to have been the adoption by the Government of Decree No. 99-673 of 20 August 1999. The Decree, which purports to restructure the Board of the National Social Security Fund (CNaPS), alters the Board’s composition (reducing the number of workers’ representatives from eight to six) as well as its mode of operation (by allowing the Government a turn in the presidency). The Decree was subsequently declared unconstitutional by the High Constitutional Court of Justice on 23 August 2000. In addition, the Committee notes that a new draft decree presented by the Government provides that the Ministry itself would have the right to appoint one of the six workers’ representatives.
2. 660. Since the Decree was adopted, the Committee notes that the Government and the social partners signed a tripartite memorandum of understanding on 8 May 2000 and an ad hoc tripartite commission was set up. The commission, whose aims include that of resolving the problem of the composition of the CNaPS Board, has, according to the Government, held nine meetings since it was established. The Committee nevertheless notes that, according to the complainants, no solution responding to their requirements has been found to date. In the light of the available information, the Committee is bound to note that the parties blame one another for the failure to resolve the problem of the composition of the CNaPS Board. At the same time, with regard to the adoption of the Decree altering the Board’s structure, the Committee feels obliged to remind the Government of the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. Thus, the Committee recalls that any decisions concerning the participation of workers' organizations in a tripartite body should be taken in full consultation with the trade unions whose representativity has been objectively proved [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 927 and 943]. In addition, concerning the new draft decree which would grant to the Ministry the right to appoint one of the six workers’ representatives, the Committee recalls that it is for workers’ organizations, not for the authorities, to choose in full freedom all their representatives in tripartite bodies. The Committee requests the parties to spare no effort in achieving an agreement on the composition of the CNaPS Board and requests the Government to keep it informed in this regard.
3. 661. As regards the representativity of the trade union organizations concerned, the Committee notes that the Government in reply to the allegations made by the complainants with regard to section 1, paragraph 3 (new), of Decree No. 2000-291 of 3 May 2000, which allegedly requires trade unions to provide a list of their members, a copy of their by-laws and the names of their officers, states that it was only trying to assess the real representativity of trade unions by determining the actual number of members. The Committee also notes that during a meeting of the ad hoc commission in June 2000, it was agreed that the representativity of trade union organizations would be assessed by collating data obtained from labour inspections and data provided by the trade unions. The Committee notes that the latter were asked to provide the Ministry of the Public Service, Labour and Social Law with information regarding the criteria of representativity applied by their regional unions, but were unable to supply that information. In this regard, the Committee recalls that it has in the past considered that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representative nature. The determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse. In the case in question, the Committee considers that it is unnecessary to draw up a list of trade union members in order to determine the number of members; this will be evident from the record of trade union membership dues, and there is no need for a list of names which could make acts of anti-union discrimination easier. Consequently, the Committee requests the Government to amend section 1, paragraph 3, of Decree No. 2000-291 to allow the representativity of trade unions to be determined without making it a requirement to provide the authorities with members’ names. The Committee requests the Government to keep it informed in this regard.
4. 662. Lastly, the Committee notes that the Government has not replied to allegations concerning interference by the Ministry of the Public Service, Labour and Social Law in the internal affairs of trade unions, such as organizing missions of workers’ delegates without the knowledge of their confederations for the purpose of nominating them for membership of regional tripartite bodies, or requiring proposals for candidates other than those put forward by the confederations for membership of the tripartite bodies in question. Furthermore, the Government has also failed to provide any observation regarding the allegations of infringement of the right of collective bargaining resulting from Decree No 97-1355. The Committee requests the Government to send its observations on these allegations without delay.