Rapport définitif - Rapport No. 37, 1960

1. 12. In a communication dated 26 November 1957 the Inter-Union Committee of the Central Trade Unions of Madagascar lodged a complaint with the I.L.O alleging that trade union rights had been infringed in Madagascar. The complainants were informed on 28 November 1957 of their right to furnish further information in substantiation of their complaint; they did so by a letter to the Director-General of the I.L.O dated 22 December 1957.
2. 13. The complaint and the further information supplied by the complainants were forwarded to the Government by two letters dated respectively 28 November 1957 and 10 January 1958 ; the Government forwarded its observations by a letter dated 25 February 1958.

A. A. The complainants' allegations

1. 14. At its 19th Session (Geneva, February 1958) the Committee made an interim report on the case to the Governing Body and decided to ask the Government for further information. This decision of the Committee was communicated to the Government by a letter dated 17 March 1958, to which the Government replied by a letter dated 21 July 1958.
2. 15. When the case again came before it at its 20th Session (Geneva, November 1958), the Committee made a second interim report, and once more requested the Government to furnish further information. This request for information was conveyed to the Government by a letter dated 2 December 1958, to which the Government replied by a communication dated 26 February 1959.
3. 16. The complainants allege that certain trade union organisations decided to call a strike on 26 and 27 November 1957. The purpose of the strike-which affected workers in public and private employment and also in agriculture-was to protest against the national economic policy and against the provisions of Order No. 404-IGT dated 7 November 1957 (which amended family allowance rates), and Order No. 408-IGT, also dated 7 November 1957 (which fixed wage zones and guaranteed minimum wages for Madagascar) ; the complainants consider these minimum wages to be inadequate. As regards workers in private employment, claims were put forward for specified guaranteed minimum wages, family allowances, maternity allowances, the establishment of five wage zones, the extension of collective agreements in the various trades, old-age pensions and action against unemployment. As regards workers in public employment, claims were put forward dealing with wage indices, the standardisation of rates and methods of granting family allowances, equal treatment for auxiliary employees and standardisation of the procedure for the entry of certain officials into the future national civil service. As regards agriculture, a claim was put forward for the establishment of agricultural chambers separate from the chambers of commerce and industry.
4. 17. The complainants attached to their complaint a notice issued by the General Inspectorate of Labour which declared the strike to be illegal. They consider this to be an infringement of the right to strike. The notice points out that the right to strike laid down in the Constitution is governed by legislative provisions forbidding strikes until all the procedures laid down by law for the settlement of collective disputes between employers and workers have been exhausted. The notice goes on to state that there was no dispute between employers and workers since most of the claims fell within the sphere of the authorities rather than the employers, and accordingly the strike was directed against the authorities and their economic policy. Decisions by the courts had, stated the notice, proved that this type of strike was illegal because it interfered with the exercise of powers vested in the authorities. The notice consequently warned any workers who might participate in the strike that they would run the risk of loss of wages or dismissal (subject to approval by the Labour Court) without any right to compensation.
5. 18. In conclusion, the complaining organisation stated that over 500 strikers had been dismissed and that the complainants had instituted proceedings in 300 cases before the Labour Courts.
6. 19. In its first set of observations, dated 25 February 1958, the Government declared that the Labour Inspectorate considered the strike to be illegal because the claims were designed to bring about a change in matters which had been dealt with in two enactments and could not therefore be submitted to the ordinary statutory conciliation and arbitration machinery; the trade unions showed their intention of interfering in a field reserved to the public authorities. Nevertheless, stated the Government, the strike took place in full freedom, but was supported by only 2.2 per cent of the wage earners in Madagascar. Some dismissals were made, most of which, however, were revoked at an early date. The Government stated that, if some of the dismissals gave rise to judicial proceedings, it would be for the appropriate courts to pronounce on the legality or illegality of the strike.
7. 20. In the Government's view the strike in question was essentially political in its aims. The complainants' real grievance against the Government was that the notice published by the Labour Inspectorate (see paragraph 17 above) in their view brought moral pressure to bear which led to the failure of the strike. In fact, stated the Government, the strike was directed against the Government itself because by law minimum wages and allowances were fixed by an official agency.
8. 21. When it examined the case its 19th Session(February 1958), the Committee recalled that in a number of earlier cases it had considered that the fact that a strike had been treated as illegal because it was designed to bring pressure on a government over a political issue did not constitute a violation of freedom of association, and that a government which informed an organisation that according to its legal advisers a proposed strike was illegal because it did not arise out of a labour dispute would not be violating freedom of association either.
9. 22. After noting the Government's statement that although the points in dispute were of an economic nature the strike itself was directed against the Government, the Committee took note of the latter's statement that a ruling on the lawfulness of the strike and of any dismissals which took place as a result would be given in any case which came before the courts.
10. 23. The Committee went on to recall that in a number of earlier cases it had decided not to examine questions which were sub judice - whenever the legal procedure involved adequate safeguards - since the court proceedings could provide information of value to the Committee in deciding whether the allegations before it were justified.
11. 24. The Committee accordingly decided to postpone its examination of the case and to request the Government for a copy of the verdict given by the courts in this case and made an interim report to this effect to the Governing Body.
12. 25. This decision by the Committee was communicated to the Government in a letter dated 17 March 1958, and the Government sent its reply by a letter dated 21 July 1958.
13. 26. In this reply the Government stated that the Labour Court at Tananarive handed down two verdicts on 9 January 1958 and the following days dealing with 287 individual dismissals which took place as a result of the strike in Tananarive province. The verdicts in the court dealing with the industrial workers declared that the strike was illegal and rejected the workers' case, whereas the verdicts in the same case by the court dealing with commercial workers declared that the strike was not illegal and sentenced the employers to pay damages for wrongful dismissal.
14. 27. The Government went on to say that an appeal was heard on 27 March and the following days by a court of first instance which upheld the verdicts stating that the strike was illegal and reversed the others, thereby unifying the local case law on strikes.
15. 28. When the case came before it again at its 20th Session (November 1958), the Committee considered that, in accordance with the practice which has been followed in such cases, it would be useful for it to have before it the actual judgments and the reasons adduced both by the two courts of first instance and by the court which heard the appeal, before it expressed any opinion on the matter.
16. 29. The Committee, therefore, decided to adjourn its examination of the case and to request the Government to furnish the information referred to in the preceding paragraph. This decision was embodied in the interim report that the Committee made on the case to the Governing Body.
17. 30. This request for further information was conveyed to the Government by a letter dated 2 December 1958. The Government replied by a letter dated 26 February 1959, which was received too late to be examined by the Committee at its last meeting, which was held in Geneva on the same date.
18. 31. In this last communication the Government furnishes the text of the judgment of the court of appeal and of the reasons adduced.
19. 32. As regards the facts of the case, the court, sitting as a court of appeal, finds that the workers involved in the strike intended, by not reporting for work at their place of employment on either 26 or 27 November 1957, to demonstrate against Orders Nos. 404 and 408/IGT of 7 November 1957 and to exert pressure on the public authorities for an improvement in the financial circumstances of wage-earning workers as regulated in the said Orders, which determined the rates for family allowances, the wage zones and the guaranteed minimum inter-occupational wage. The court then refers to the demands of the workers embodied in the document that they entitled " Strike Call " and summarised in paragraph 16 above in the analysis of the complaint submitted to the I.L.O by the Inter-Union Committee of the Central Trade Unions of Madagascar.
20. 33. Having regard both to the character of the strike and to the nature of the demands made by the strikers, the court declares that there was no question in any case of the employees exerting pressure on their employers, that the said employers were totally unable to meet any one of the demands of their employees to the slightest extent and had therefore suffered damage without being responsible for the situation which produced the stoppage of work and without being able to remedy that situation.
21. 34. The court then declares that, when the employees reported for work on 28 November 1957, the employers refused to admit them to their workplaces and stated that they regarded them as having resigned, whereas the wage earners claimed, on the contrary, that they had merely suspended their contracts of employment by availing themselves of their Constitutional right to strike.
22. 35. From the juridical point of view, the court states that the strike weapon constitutes a right only when the following four constituent elements are present (a) there is a concerted, collective and complete stoppage of work ; (b) the strike is designed to secure occupational advantages ; (c) the strike is directed against an employer who, apart from any economic or financial consideration, is susceptible and capable of complying with the demands made; (d) conciliation procedure has broken down (French Overseas Territories Labour Code, section 218bis).
23. 36. The court declares that in the case under review the last three constituent elements of the right to strike were manifestly lacking. The immediate and avowed aim of the strike was to secure the abrogation of the Orders in question and their replacement by new regulations. An improvement in the circumstances of the wage earners, depending on these political reforms, was thus only an indirect objective of the pressure brought to bear on the State. Further, the employers in the case had no power to abrogate the enactments in question or to issue regulations in the matter. Finally, the conciliation procedure laid down in sections 209 to 218bis of the French Overseas Labour Code had not been set in motion and obviously could not be set in motion in the absence of any dispute between employers and employees, the only dispute being between the wage earners and the State.
24. 37. In the view of the court, therefore, the matter to be determined was whether the work stoppage in question amounted to a strike, despite the absence of three out of the four constituent elements of a "strike" properly so-called, this question involving more than a mere matter of terminology. A cessation of work otherwise than as part of a fully fledged strike is equivalent to a wilful breach of the contract of employment by the employee. A cessation of work on the pretext of a strike outside the statutory limits constitutes serious misconduct entitling the employer to dismiss the employee without compensation or notice.
25. 38. After recalling that a broadcast announcement by the General Inspectorate of Labour had warned those concerned of the dangers involved in their action, the court concludes that, in view of all the foregoing, the stoppage of work by the employees constituted an abuse of the right to strike and serious misconduct justifying their dismissal without compensation or notice.
26. 39. The Committee observes that the Government refrains from furnishing in its reply, as requested, the texts of the judgments given by the two courts of first instance. In view, however, of the very full details embodied in the decision of the court of appeal furnished by the Government, the Committee considers that the information now before it is sufficient to enable it to formulate conclusions in full knowledge of all the circumstances.

B. B. The Committee's conclusions

1. 40. It appears from this information that the strike called by certain central trade unions in Madagascar, while economic in character, was a strike directed against the economic policy pursued by the authorities rather than a strike against the employers of those who took part in it for the purpose of securing better terms of employment from such employers. This ensues from the list of demands contained in the "Strike Call " issued by the Inter-Union Committee, the two versions of which, as given by the complainants and by the Government, do not contradict one another.
2. 41. Moreover, by reason of the manner in which and the purposes for which it was called, the strike does not appear to have fulfilled the conditions prescribed by the national legislation in order to constitute a lawful strike (see paragraph 35 above). Certainly, the mere fact of a strike being regarded as unlawful in any country would not be sufficient to cause the Committee to refrain from examining the merits of a case ; it would also be necessary for the conditions that had to be fulfilled, under the law, in order to render a strike lawful, to be reasonable conditions and, in any event, not such as to place a substantial limitation on the means of action open to trade union organisations. In this connection, the Committee has recognised in a number of cases, for example, that prior notification to the administrative authority and utilisation of compulsory conciliation and arbitration in industrial disputes before a strike is called are provided for in the laws or regulations of a substantial number of countries, and that reasonable provisions of this type cannot be regarded as an infringement of freedom of association. In the present case, the conditions referred to in paragraph 35 above appear to be of a type which the Committee has always regarded as reasonable and, therefore, as not constituting an infringement of freedom of association.
3. 42. Although it was neither prohibited nor refused, therefore, the strike in question nevertheless constituted an unlawful strike, concerning the possible consequences of which the workers had been warned by the General Inspectorate of Labour.
4. 43. As the Committee recalled (see paragraph 21 above), it has always considered that the fact that a strike had been treated as illegal because it was designed to bring pressure on a government over a political issue did not constitute a violation of freedom of association, and that a government which informed an organisation that according to its legal advisers a proposed strike would be illegal because it did not arise out of a labour dispute would not be violating freedom of association either.
5. 44. There remains the question of the penalties for striking which the workers who took part in the work stoppage claim were applied to them. When the workers, after the termination of the strike, presented themselves at their workplaces, they were refused admission by their employers, who regarded them as having resigned because they had broken their contracts unilaterally. This was precisely the possible consequence of an unlawful strike of which the workers had been warned by the General Inspectorate of Labour.
6. 45. The wage earners on the other hand claimed that they merely suspended their contracts of employment when they had recourse to their Constitutional right to strike.
7. 46. As already noted, the case was brought before the courts. The court of first instance for the "industry sector" declared the strike to be wrongful, whereas the corresponding court for the "commerce sector" declared it not to be wrongful. On appeal, the judgment of the former court was upheld and that of the latter court overruled. The court of appeal based its decision on the fact that the employers had suffered damage without being responsible for the situation which produced the stoppage of work and without being able to remedy that situation, that the stoppage of work by the employees constituted an abuse of the right to strike equivalent to a breach of contract, this amounting to serious misconduct entitling the employers, beyond all doubt, to dismiss the employees without compensation or notice.