Informe provisional - Informe núm. 393, Marzo 2021

1. 572. The Committee examined this case, presented in 2017, at its June 2019 meeting, when it presented an interim report to the Governing Body [see 389th Report, approved by the Governing Body at its 336th Session (June 2019), paras 445–466].
2. 573. The Government sent its observations on 1 February 2021.
3. 574. 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). It has not ratified the Workers’ Representatives Convention, 1971 (No. 135).

A. Previous examination of the case

1. 575. In its previous examination of the case, in June 2019, the Committee made the following recommendations [see 389th Report, para. 466]:

B. Reply by the Government

1. 576. On 1 February 2021, the Government provided a copy of the arbitral award of 26 July 2013, as well as a copy of the decision of the Labour Court of First Instance of 10 April 2015 dismissing the unfair dismissals claim of the 43 dockers. According to the Government, they were among the 203 dockers “deleted from the list” of dockers maintained by the company for various reasons (including prolonged unjustified absences, miscellaneous offences and social unrest).

C. The Committee’s conclusions

1. 577. The Committee recalls that this complaint concerns allegations of anti-union discrimination from a port sector company by: (i) refusing to recognize the General Maritime Union of Madagascar (SYGMMA) as the legitimate representative of its workforce; and (ii) penalizing and dismissing union leaders and members in retaliation for carrying out legitimate trade union activities.
2. 578. The Committee notes with regret the lack of detail in the Government’s observations in response to its previous recommendations. Indeed, the Government confines itself to providing a copy of the arbitral award of 26 July 2013, which states that the company’s failure to recognize the union amounted to an unconstitutional act in contravention of the principles of freedom of association, and a copy of the decision of the Labour Court of First Instance of 10 April 2015 dismissing the unfair dismissals claim of the 43 dockers. The Committee notes with deep regret that the Government does not provide information on the measures taken to enforce the decision of the Arbitration Board of 26 July 2013 and to ensure that trade union rights are respected at the Port of Toamasina. Similarly, the Committee deeply regrets having no information from the Government concerning the outcome of the appeal lodged in September 2015 against the decision of the Court of First Instance concerning the dismissal of the 43 workers. On this point, the Committee notes that it is apparent from the contested decision that the dockers concerned were regarded as daily workers, since they had provided no evidence of an employment contract of unlimited duration within the meaning of section 9 of the Labour Code. Furthermore, the Committee notes that, according to the Government, they were among the 203 dockers “deleted from the list” of dockers maintained by the company for various reasons (including prolonged unjustified absences, miscellaneous offences and social unrest). In view of the above, the Committee urges the Government to provide detailed information on the situation of the 43 workers involved, as well as on the outcome of the appeal lodged in September 2015 against the decision by the Labour Court of First Instance concerning their dismissal. The Committee recalls that, if it is found that acts of anti-union discrimination have been committed by the company, the Government should take the necessary measures of redress, including ensuring that the workers concerned are reinstated without loss of pay, and if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation.
3. 579. Recalling that dockers, in view of their status and conditions of recruitment, may prove to be especially vulnerable to anti-union discrimination, the Committee considers that the lack of information on the outcome of judicial proceedings relating to the dismissal of the 43 workers, compounded by the Government’s silence over the measures taken to protect the trade unionists and the free exercise of trade union activities, would appear to corroborate the more general allegations of a lack of respect for trade union rights in the country.