Informe provisional - Informe núm. 31, 1960

1. 37. 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 that they were entitled to supply additional information in support of their claim and did so in a letter to the Director-General of the I.L.O dated 22 December 1957.
2. 38. The complaint, and the additional information supplied by the complainants, were forwarded to the Government in two letters dated respectively 28 November 1957 and 10 January 1958 ; the Government supplied its observations in a letter dated 25 February 1958.
3. 39. 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 details. This decision by the Committee was notified to the Government in a letter dated 17 March 1958, and the Government replied to it in a letter dated 21 July 1958.

A. A. The complainants' allegations

1. 40. 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.
2. 41. 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.
3. 42. 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.
4. 43. 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.
5. 44. 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 41 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.
6. 45. When it examined this case at its last 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 dial not arise out of a labour dispute would not be violating freedom of association either.
7. 46. 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.
8. 47. The Committee went on to recall that in a number of earlier cases a 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.
9. 48. 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.
10. 49. This decision by the Committee was notified to the Government in a letter dated 17 March 1959, and the Government sent its reply in a letter dated 21 July 1958.
11. 50. In its reply the Government states 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 given 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.
12. 51. The Government goes 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.

B. B. The Committee's conclusions

1. 52. While thanking the Government for this information the Committee considers 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 expresses any opinion on the matter.