Informe provisional - Informe núm. 130, 1972

1. 49. The complaint is contained in a communication dated 14 June 1971 addressed direct to the ILO by the Federation of Trade Union Workers of Madagascar.
2. 50. The complaint was transmitted to the Government, which sent its observations in a communication dated 6 January 1972.
3. 51. Madagascar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 52. In their communication dated 14 June 1971 the complainants alleged that there had been serious breaches of Convention No. 87 by the Government in connection with the following undertakings: the Ground-nut Co-operatives Union (UCOPRA), at Majunga, the Madagascan Coastal Shipping Company, at Majunga, the Avaradroa Teachers' Training College, and the Tamatave Port Operation Authority (National Railway System).
2. 53. As regards the Ground-nut Co-operatives Union (UCOPRA), the complainants state that Mr. Arthur Regaga, a member of the Federation of Trade Union Workers of Madagascar (FISEMA), had been included as a candidate for the post of staff representative in a FISEMA list dated 29 June 1970. In this undertaking-where he was employed as a guard-Mr. Regaga was well known as an active member of the Federation. Further, in the elections held throughout the country on 6 September 1970 to elect members of the National Assembly, Mr. Regaga, a member of the AKFM party, was mentioned as a candidate on that party's list.
3. 54. The complainants allege that, by letter dated 12 September 1970, Mr. Regaga was informed by the Director of UCOPRA of his dismissal, and it is clear, state the complainants, that Mr. Regaga, who had been employed there since 1963, was felt to hold views contrary to those of his employers and to those of the Government. A copy of this letter is supplied by the complainants.
4. 55. In the same undertaking, the complainants continue, Mr. Benoit Rakotoarisono, a secretary since 1964, was dismissed for the same reasons as Mr. Regaga. Mr. Rakotoarisono had also appeared on the FISEMA list dated 22 June 1970 of candidates for posts as staff representatives. The complainants add that Mrs. Jeannette Ravaliarisoa, a member of FISEMA, who was a candidate on the AKFM list for the election of general counsellors (13 September 1970) was also dismissed. Copies of letters by the Director of UCOPRA to these persons are supplied by the complainants.
5. 56. Mr. André Randriantseheno, as an employee of the Madagascan Coastal Shipping Company, was, according to the complainants, a well known active member of FISEMA, and, this being the case, everything he said or did was closely observed by his employers. In July 1970 he received a letter of warning from his employers; in September 1970 he was appointed delegate from the AKFM list in a polling-booth for the general elections of 6 September 1970. After the elections, Mr. Randriantseheno was dismissed and was required to report to the police. The complainants allege that it follows that he was dismissed for political reasons. The complainants supply a copy of the letter dated 11 September 1970 dismissing Mr. Randriantseheno.
6. 57. Mr. François Rakotoiaina, of the Avaradroa Teachers' Training College, appeared on the FISEMA list for the election of staff delegates on 21 December 1970. After being elected deputy staff delegate he was dismissed on 15 January 1971. The complainants add that his case was submitted to the Madagascan Supreme Court. A copy of his case as presented to the Court is supplied by the complainants.
7. 58. Messrs. J. Rasamison, Randriamantenasoa and A. Rakotondrainibe were all employed by the Tamatave Port Operation Authority (National Railway System) and, according to the complainants, were all well known leaders and active members of the FISEMA. Since 1969 they had taken part in various municipal and general elections as members of the AKFM party and had been candidates of this party. In 1969 they had been subject to disciplinary action of various kinds, and in February 1970 they were dismissed. The action taken against these persons, allege the complainants, constituted discrimination against their trade union, contrary to Convention No. 87. Copies of certain documents are supplied by the complainants in connection with these persons.
8. 59. In its communication dated 6 January 1972, the Government states that the trade unions tend to confuse political activities with trade union activities in such a way that, in putting forward a case on behalf of their members, they deal with the matter either from the political or the purely trade union angle, whichever they think will best serve their interests. Since the trade unions are unaware of, or minimise, the distinction that should be made, the worker members of the unions consider that there is nothing to lose by involving themselves in political activities even in the workplace.
9. 60. The Government considers it important to emphasise that an obligation rests on the employer to submit cases of dismissal to the authorities-in this case the Labour Inspectorate-only if the dismissal affects staff delegates, former delegates and candidates for office as staff delegates. Apart from these cases the local authorities exercise no function regarding the dismissal of workers. It follows, states the Government, that the cases mentioned by the complainants are solely occupational matters between employers and employees.
10. 61. The Government adds that in the case of a dismissal without just cause by an employer, an employee has the right to appeal either to the Labour Inspectorate or to the Labour Tribunal, this right being recognised in the law of Madagascar. The labour inspector; can then only explain to the parties the provisions of the rules or the Labour Code ands attempt to conciliate. The Government adds that section 31 of the Labour Code provides i inter alia, that any dismissals by employers without just cause, for example without occupational reasons or for reasons concerned with the worker's opinions, or trade union membership, are improper and may give rise to an action of damages. This section also provides for an inquiry into the circumstances of a case by the competent authority. Should the labour inspector fail to effect conciliation, the parties may then go before the courts. The labour inspector's sole function is conciliation and only the courts may award damages against an employer.
11. 62. The Government adds that the complaints relate to cases in which the measures taken by the employers concerned were not motivated by the opinions of the workers, or by their trade union activity, or by their membership or non-membership of a particular trade union. The dismissals were motivated by breaches of rules of discipline as defined in the works rules of the undertaking. The Government explains that the law in Madagascar recognises the disciplinary power of an employer. This power is, however, limited in the sense that an employer is not permitted to take sanctions against a person for acts that fall outside the scope of the undertaking, such as political or religious opinions or trade union activities, unless such activities have repercussions on the running of the undertaking and give rise to disorder or agitation.
12. 63. Generally speaking, the Government continues, an employer can never make accusations against workers for exercising their rights. On the other hand, any act against discipline may be penalised by any kind of sanction under the common law including dismissal, though disciplinary dismissal for grave cause is subject to the supervision of the courts. Judges must be satisfied that this sanction corresponds to the gravity of the offence and justified the dismissal without previous notice.
13. 64. The Government states that, in the cases in question, almost all the workers dismissed have received previous notice or payment in lieu thereof. It adds that, except in cases where a collective agreement provides for a disciplinary board, the head of the undertaking himself has power to take disciplinary measures in conformity with the works rules or his own discretionary powers. In the latter case he runs the risk of an action for damages if his discretion is used too widely. In the cases in question, since no conciliation was possible before the labour inspector, all the cases have been submitted to the courts, where they are at present under consideration. The Government supplies a copy of the type of works rules applied by the undertakings in question.

B. B. The Committee's conclusions

1. 65. The Committee draws attention to the fundamental principle that workers and, in particular, trade union officials, should enjoy adequate protection against all acts of antiunion discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measure; on the other hand, this principle does not necessarily imply that the fact that a person holds a trade union office confers on him immunity from dismissal, irrespective of the circumstances. The Committee has stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of anti-union discrimination. It has also referred to the difficulty that a worker may have in furnishing proof of an act of anti-union discrimination of which he has been the victim. In this connection the Committee wishes to draw attention to the Workers' Representatives Recommendation, 1971 (No. 143), which recommends, as one of the measures that should be taken to ensure the effective protection of workers' representatives, provision for laying upon the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers' representative, the burden of proving that such action was justified.
2. 66. The Committee notes in the present case that the persons in question were dismissed by the management of their respective undertakings and, from the documentation supplied by the complainants, it appears that in some cases prior warning had been given that the workers were not performing their duties in a satisfactory manner and that in others full payment of all wages and money in lieu of notice was made. The Committee also notes that the law provides machinery for conciliation in such cases before a labour inspector, and that if attempts at conciliation fail, questions of dismissal are submitted to the courts. The Committee observes that all the cases in question are at present under consideration by the courts.