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Holidays with Pay Convention (Revised), 1970 (No. 132) - Madagascar (Ratification: 1972)

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Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide an overview of matters relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine the application of Conventions Nos 132 (holidays with pay) and 171 (night work) in a single comment.

The Committee notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE) and the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 1 September 2022. It also notes the observations of the FISEMA and the Christian Confederation of Malagasy Trade Unions (SEKRIMA), received with the Government’s report.

A.Paid leave

Article 5(2) of Convention No. 132. Minimum period of service for holiday entitlement. Further to its previous comments, the Committee notes the Government’s reaffirmation in its report that in practice workers can avail themselves of their entitlement to 2.5 days of holiday for each month of service even before their total service amounts to the minimum period of 12 months set out in section 88(1) of the Labour Code. However, the Government indicates that at present no measures have been taken to bring the current legislation into conformity with Article 5(2) of the Convention. While taking due note of this information, the Committee requests the Government to indicate whether measures have been taken or are envisaged to bring the national legislation into line with the practice that is generally followed.

B.Night work

Article 3 of Convention No. 171. Specific measures for night workers. The Committee notes that section 85 of the Labour Code provides that women may not be employed at night in industrial establishments, with the exception of establishments in which only the members of the same family are employed. The Committee recalls that protective measures applicable to women’s employment at night which go beyond maternity protection and are based on stereotyped perceptions regarding women’s professional abilities and role in society violate the principle of equality of opportunity and treatment between men and women (2018 General Survey concerning working-time instruments, paragraph 545). The Committee requests the Government to review the national legislation in light of this principle, in consultation with the social partners. Moreover, noting that the country is still bound by the Night Work (Women) Convention (Revised), 1948 (No. 89), and that the window for the denunciation of that Convention will be open from 27 February 2031 to 27 February 2032, the Committee encourages the Government to envisage its denunciation at the appropriate time.

Articles 4 and 5. Health assessment. Suitable first-aid facilities. Further to its previous comments, the Committee notes the Government’s indications that sections 5 to 12 of Decree No. 2003-1162 of 17 December 2003 on the organization of enterprise medicine, as amended by Decree No. 2011-631 of 11 October 2011, provide that: (i) the systematic examinations that employers are required to have carried out include the examination upon recruitment, regular medical examinations, examinations upon taking up work again following an absence due to occupational disease, and the examinations envisaged for women and children; (ii) in case of necessity, the physician may call for additional examinations upon recruitment, as well as regular examinations and systematic testing for occupational diseases; (iii) the care provided by occupational health services, including health assessments for workers, are free of charge; and (iv) the medical file for workers created following the recruitment examination is confidential. It also notes that the Decree provides for the availability of first-aid facilities, including the presence of nursing personnel responsible for the provision of elementary care and first aid in the event of accidents (section 33); the availability of first-aid equipment (section 41); the evacuation of workers (section 16); and the training in first aid of at least one in every 50 workers (section 5(b)). The Committee notes this information, which replies to the points raised previously.

Article 6. Workers declared unfit for night work. Further to its previous comments, the Committee notes the Government’s reference to sections 8 and 10 of Decree No. 2003-1162, which provides that: (i) in the event of incapacity to perform the envisaged work, noted during the health assessment prior to assignment, the enterprise physician shall inform in writing the person concerned and the employer concerning the types of work compatible with the worker’s physical and/or intellectual capacity; and (ii) in the event of return to work following an absence due to occupational disease, the physician shall indicate the capacity of the worker to return to the previous work or the need for functional rehabilitation and a change of assignment. The Government indicates that, in practice, the employer has to take into account the decision of the occupational physician when it is indicated in a medical certificate that a worker is declared unfit for night work for medical reasons. Nevertheless, the Committee observes that the legislation does not appear to contain provisions under which, when a transfer to a similar job is not practicable, workers shall be granted the same benefits as other workers who are unable to work or to secure employment, and that a night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that full effect is given to this provision of the Convention.

Articles 8 and 9. Compensation for night workers. Social services. Transport. The Committee notes that in its observations the FISEMARE refers to cases of the non-payment of the wage supplement for night work. The Committee also notes that the FISEMA and the SEKRIMA call for the adoption of support measures to ensure the transport and safety of night workers when commuting, as well as breaks, and call for regulations to be adopted to improve the effect given to the Decree that is in force. The Committee requests the Government to provide its comments in this respect.

Article 10. Consultation of workers’ representatives. The Committee notes that, in response to its previous comment, the Government has not provided any further information. The Committee requests the Government to indicate the manner in which it is ensured that, before introducing work schedules requiring the services of night workers, the employer consults the workers’ representatives concerned on the details of such schedules and the forms of the organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services that are required, as required by this Article of the Convention.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide an overview of matters relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine the application of Conventions Nos 14 (weekly rest in industry) and 132 (holidays with pay) in a single comment.

A.Weekly rest

Articles 4 and 5 of Convention No. 14. Total or partial exceptions – Compensatory rest. Further to its previous comments, the Committee notes the Government’s indication in its report that no new legislative measures have been adopted to bring sections 13 to 15 of Decree No. 62-150 of 28 March 1962, which envisage exemptions from weekly rest without any compensatory rest, with Article 5 of the Convention. In this regard, the Committee notes the observations of the FISEMA according to which no draft decree to amend Decree No. 62-150 has been discussed in the National Labour Council. It also notes the denunciation by the FISEMA that the weekly rest of certain employees in textile and industrial enterprises is not respected and that measures should be taken to penalize those enterprises. The Committee requests the Government to take the necessary measures to ensure that compensatory rest is granted to the workers covered by the Convention who are required to work on their weekly rest day and to provide information on any progress achieved in this regard.

B.Holidays with pay

Article 9(1) and (3) of Convention No. 132.Postponement and accumulation of paid holiday. In its previous comments, the Committee noted that section 88(5) of the Labour Code, under the terms of which workers have the possibility to accumulate their whole holiday entitlement over a period of three years preceding retirement, is not in conformity with the Convention. The Committee notes the Government’s indication in its report that no measures have been adopted to bring the current legislation into conformity with Article 9(1) and (3) of the Convention. The Committee recalls that Article 9 of the Convention provides that an uninterrupted part of the annual holiday with pay consisting of at least two working weeks shall be granted and taken each year, and the remainder may be postponed for a limited period. The Committee requests the Government to take the necessary measures to bring the legislation and practice into conformity with the Convention on this point.

Article 12.Prohibition of relinquishing annual holiday in exchange for financial compensation. Further to its previous comments, the Committee notes the Government’s indication that it is compulsory to take annual holiday and that it is prohibited to relinquish this right in exchange for financial compensation. The Committee notes that the FISEMA once again reports cases in which workers relinquish their annual leave in exchange for financial compensation. The FISEMARE observes a significant decrease in practices of “buying back holidays” in recent years, but indicates that the limitation to three years of the right to take annual holidays is problematic. The Committee requests the Government to reply to these observations and to provide details on the number of workers involved and the length of the annual leave period which is exchanged for financial compensation.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 5(2) of the Convention. Minimum period of service for holiday entitlement. With reference to its previous comment, the Committee notes the Government’s reply to the effect that, in practice, workers can take 2.5 days’ holiday for each month of completed work even before their total service amounts to the minimum 12-month period stipulated by section 88(1) of the Labour Code. The Committee therefore requests the Government to take the necessary measures without delay to bring the national legislation into line with the practice that is generally followed.

Article 9(1) and (3). Postponement and accumulation of paid holiday. In its previous comment, the Committee drew the Government’s attention to the fact that section 88(4) and (5) of the Labour Code is not in conformity with the provisions of the Convention. The Committee notes that the Government’s latest report does not provide any new information on section 88(5) of the Labour Code, under the terms of which workers have the possibility of accumulating their whole holiday entitlement over a period of three years preceding retirement. Recalling that Article 9 of the Convention provides that part of the holiday must be granted and taken each year, while the remainder may be postponed for a limited period, the Committee once again requests the Government to take the necessary measures to bring the legislation into conformity with the Convention on this point.

Article 12. Prohibition on relinquishing annual holiday for financial compensation. The Committee notes the observations from the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 2 September 2013 and forwarded to the Government on 19 September 2013. FISEMA indicates that, despite the comments made by the Committee on this point in 2009, the texts sent for examination by the National Labour Council (CNT) in March 2013 do not include any draft amendments of the provisions of section 88 of the Labour Code. FISEMA also reports that certain free-zone companies try to “buy back” their employees’ holiday but that the labour inspection services take no action. FISEMA indicates that human resource officers in certain companies are encouraging workers to “sell” their holidays, under the pretext of poverty and the demands of production. The Committee requests the Government to transmit any comments it wishes to make in response to the observations made by FISEMA.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 5(2) of the Convention. Minimum period of service for holiday entitlement. With reference to its previous comment, the Committee notes the Government’s reply to the effect that, in practice, workers can take 2.5 days’ holiday for each month of completed work even before their total service amounts to the minimum 12-month period stipulated by section 88(1) of the Labour Code. The Committee therefore requests the Government to take the necessary measures without delay to bring the national legislation into line with the practice that is generally followed.

Article 9(1) and (3). Postponement and accumulation of paid holiday. In its previous comment, the Committee drew the Government’s attention to the fact that section 88(4) and (5) of the Labour Code is not in conformity with the provisions of the Convention. The Committee notes that the Government’s latest report does not provide any new information on section 88(5) of the Labour Code, under the terms of which workers have the possibility of accumulating their whole holiday entitlement over a period of three years preceding retirement. Recalling that Article 9 of the Convention provides that part of the holiday must be granted and taken each year, while the remainder may be postponed for a limited period, the Committee once again requests the Government to take the necessary measures to bring the legislation into conformity with the Convention on this point.

Article 12. Prohibition on relinquishing annual holiday for financial compensation. The Committee notes the observations from the General Confederation of Workers’ Unions of Madagascar (FISEMA), received on 2 September 2013 and forwarded to the Government on 19 September 2013. FISEMA indicates that, despite the comments made by the Committee on this point in 2009, the texts sent for examination by the National Labour Council (CNT) in March 2013 do not include any draft amendments of the provisions of section 88 of the Labour Code. FISEMA also reports that certain free-zone companies try to “buy back” their employees’ holiday but that the labour inspection services take no action. FISEMA indicates that human resource officers in certain companies are encouraging workers to “sell” their holidays, under the pretext of poverty and the demands of production. The Committee requests the Government to transmit any comments it wishes to make in response to the observations made by FISEMA.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 5, paragraph 2, of the Convention. Minimum period of service required for entitlement to holidays. Referring to its previous comments, the Committee notes that the Government’s report once again merely indicates that the point raised by the Committee will be submitted to the competent authorities for consideration. The Committee also notes that the inconsistency between the national legislation and the provisions of the Convention concerning the minimum period of service required for entitlement to holiday was first raised in 1978 in relation to section 88 of the former Labour Code, but the Government has never taken the necessary measures to bring its legislation into conformity with this provision of the Convention. The Committee therefore requests the Government to take the necessary measures without delay to amend section 88(1) of the Labour Code and to provide for a minimum period of service required for entitlement to holiday which does not exceed six months.

Article 9, paragraphs 1 and 3. Postponement and accumulation of paid holiday. The Committee recalls its previous comments in which it drew the Government’s attention to the fact that section 88(4) and (5) of the new Labour Code of 2004 is not in conformity with the provisions of the Convention concerning the postponement and accumulation of paid holidays. Recalling that Article 9(1) of the Convention sets out the principle that a minimum period of holiday must be taken within one year, the Committee hopes that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention on this point.

Part V of the report form. Application in practice. The Committee once again requests the Government to provide information on the manner in which the Convention is applied in practice, including, in particular, extracts from reports of the inspection services indicating the number of violations reported with regard to the annual holiday with pay and the penalties imposed, information concerning the number of persons covered by the legislation, copies of relevant collective agreements, etc.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 5, paragraph 2, of the Convention. Minimum period of service required for entitlement to holiday. Further to its previous comments, the Committee notes that according to the Government, the inconsistency between the national legislation and the provisions of the Convention regarding the minimum period of service for entitlement to holiday will be examined by the competent authorities. The Committee hopes that the Government will take the necessary steps to this end in the very near future and asks it to keep the Office informed of all developments in this area.

Article 9, paragraphs 1 and 3. Postponement and accumulation of paid holiday. Further to its previous comment, the Committee notes the Government’s statement that according to section 88(3) of the Labour Code, the second portion of the holiday (15 days) may be taken before the end of the current year or accumulated over three years and that this is a choice to be taken by the worker in agreement with the employer. It notes, however, that the Government provides no fresh information on section 88(5) of the Labour Code. According to this provision, workers may accumulate all the holiday entitlements of the three years preceding departure for retirement, which is contrary to Article 9 of the Convention which stipulates that a part of the holiday entitlement must be granted and taken each year and that the remainder may be postponed for a limited period. The Committee accordingly asks the Government once again to take the necessary steps to bring the legislation fully into conformity with the provisions of the Convention. With regard to the matter of consulting public servants about the possibility of postponing paid annual leave for a period of five years, the Committee notes the Government’s statement that consultations were held in the Higher Public Service Council (CSFOP) – the composition and organization of which are set by Decree No. 2007-564 – at the time of the adoption of Decree No. 2004-812 establishing the scheme for public employees’ holidays, leave and absence permits.

Part V of the report form. Practical application. The Committee requests the Government to provide information on the manner in which the Convention is applied in practice, including extracts from reports of the inspection services indicating the number of infringements reported of the legislation on paid annual leave and the penalties imposed, statistics showing the number of persons covered by the legislation, copies of relevant collective agreements, etc.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes with interest the adoption of Act No. 2003-044 of 28 July 2004 issuing the Labour Code. The Committee also notes the adoption of Act No. 2003-011 issuing the general conditions of service of public servants, and the adoption of Circular No. 001-MFPTLS of 26 July 2005 in application of the provisions of those conditions. In this regard, the Committee would like to draw the Government’s attention to the following points.

Article 5, paragraph 2, of the Convention. Minimum period of effective service required for entitlement to holiday. The Committee notes that under section 88, paragraph 1, of the new Labour Code, a minimum period of 12 months of effective service is required for entitlement to holiday. In this respect, the Committee recalls that under Article 5, paragraph 2, of the Convention, the length of the minimum period of service required for entitlement to annual holiday with pay shall not exceed six months. The Committee asks the Government to take the necessary measures to bring its legislation into line with the Convention in this respect.

Article 9, paragraphs 1 and 3. Postponement and accumulation of holiday with pay. Section 88, paragraph 5, of the Labour Code stipulates that if the parties agree, the holiday entitlement of the three years preceding departure for retirement may be accumulated and exercised before the date of departure. The Committee draws the Government’s attention to the fact that such provisions are not in line with the Convention, which stipulates that a part of the holiday entitlement (at least two weeks) shall be granted and taken each year and that the remainder of the holiday may be postponed for a limited period. The Committee asks the Government to take the necessary measures to bring its legislation into line with the Convention in this regard. Furthermore, the Committee notes that section 2, paragraph 1, of Circular No. 001-MFPTLS of 26 July 2005 authorizes a part of the annual holiday of public servants to be postponed over a period of five consecutive years. The Committee reminds the Government that, in accordance with Article 9, paragraph 3, of the Convention, a part of the holiday may be postponed, as an exception, beyond 18 months, after consultation with the organizations of employers and workers concerned. The Committee therefore requests that the Government indicate whether, and in what way, public servants were consulted when these periods of time were determined, as is required by this provision of the Convention.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes from the information provided in reply to its previous comments, that the Statute of Public Service shall be amended in such a way that all public employees shall enjoy a minimum holiday with pay of two weeks within one year. It hopes that the Government will soon be in a position to report that the necessary legislative amendments have been made and that copies of the relevant text will be sent to the Office, when it is adopted.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

In its previous comments, the Committee noted that section 5 of Decree No. 60-124 of 1 June 1960, under which officials may have their entitlement to annual leave postponed for two consecutive years, and are entitled, after three years of uninterrupted service, to an accumulated holiday, is not in conformity with Article 9, paragraph 1, of the Convention, under which part of the holiday (in principle a period of two weeks) shall be taken no later than one year from the end of the year in respect of which the holiday entitlement has arisen.

The Committee notes the Government's repeated statements in its report that the possibility of accumulating annual leave entitlements is left to the personal convenience of officials working for the State and gives them a number of advantages.

Recalling that Article 9, paragraph 1, of the Convention contains in particular the principle that a minimum annual holiday must be taken within one year, the Committee trusts that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention on this point.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

In the comments that it has been making for a number of years, the Committee has noted certain divergencies between section 5 of Decree No. 60-124 of 1 June 1960, under which officials may have their entitlement to annual leave postponed for two successive years, and Article 9, paragraph 1, of the Convention, which provides that a part of the holiday consisting of at least two weeks must be taken no later than one year from the end of the year in respect of which the holiday entitlement has arisen. Under section 5 above, officials who have their entitlement to leave postponed are entitled, at the end of the third year, to an accumulated holiday. The application of section 5(2) can result in the worker not benefiting from the minimum leave of two weeks provided for in the Convention. Furthermore, section 5(3) provides for the possibility of the worker not taking any annual leave during three years of service.

The Government states in its report that the possibility of accumulating annual leave entitlements is left to the personal convenience of the official and that the system only concerns officials working for the State. The Committee wishes, however, to recall that Article 9, paragraph 1, of the Convention contains in particular the principle that a minimum annual holiday must be taken within one year. The Committee trusts that the necessary measures will be taken in the very near future to bring the legislation into conformity with the Convention on this point and requests the Government to supply detailed information in this respect.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes with regret that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee wishes to point out that under Article 9, paragraph 1, of the Convention at least a part of the holiday (generally two weeks) must be taken no later than one year, from the end of the year in respect of which the holiday entitlement has arisen and that, consequently, section 5 of Decree No. 60-124 of 1 June 1960, under which officials may have their entitlement to annual leave postponed for two successive years in order to be entitled after three years of uninterrupted service to an accumulated holiday, is not in conformity with this provision of the Convention.

The Committee hopes that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention on this point.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee hopes that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention on this point.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

With reference to its previous comments, although noting the explanations given by the Government in its last report, the Committee wishes to point out that under Article 9, paragraph 1, of the Convention at least a part of the holiday (generally two weeks) must be taken no later than one year, from the end of the year in respect of which the holiday entitlement has arisen and that, consequently, section 5 of Decree No. 60-124 of 1 June 1960, under which officials may have their entitlement to annual leave postponed for two successive years in order to be entitled after three years of uninterrupted service to an accumulated holiday, is not in conformity with this provision of the Convention.

The Committee hopes that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention on this point.