Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes the information in the Government’s first report.

1. Article 1 of the Convention. Provision of information. The Committee notes the provisions in the Labour Code of 2004 covering foreign workers and the relevant Decrees regulating the organization of immigration control. It also notes from the Government’s report that its policy regarding emigration from Madagascar has been temporarily suspended due to the need to sign a bilateral agreement concerning protection of and benefits for Malagasy workers; with respect to immigration, the Government indicates that its policy is aimed at accelerating the establishment of foreign investors in Madagascar. The Committee requests the Government to clarify the nature and extent of the emigration suspension referred to in its report. It also requests the Government to continue to provide information on any developments with regard to its national immigration and emigration policies and regulations, any bilateral agreements concluded, as well as information disaggregated by sex on the number of men and women migrants regularly admitted for employment in Madagascar, on either a permanent or temporary basis, and the nature of activities carried out by them.

2. Article 3. Misleading propaganda. The Committee notes the Government’s reference in its report to section 262 of the Labour Code providing for penalties, including imprisonment, against anyone who is involved in the organization of clandestine migration. The Committee would welcome additional information on the legal and other measures taken to avoid false information being disseminated, including by private agencies, to men and women from Madagascar emigrating for employment, as well as nationals arriving in the country. It also asks the Government to provide additional information on any cooperation in practice with the governments of other countries against misleading propaganda in compliance with Article 3(2) of the Convention.

3. Article 6. Equality of treatment. The Committee notes that the Labour Code applies to nationals and non-nationals. It notes that section 5 prohibits discrimination, in general, of workers with respect to their career and work and that section 53 provides equal remuneration for work of equal value for all workers regardless, among others, of their origin, colour, national extraction or sex. Furthermore, section 261 punishes all discrimination based on race, religion, origin, sex, trade union affiliation, political opinion and affiliation with respect to access to employment and vocational training, conditions of work and advancement, conditions of remuneration and dismissal. The Committee asks the Government to supply information, including copies of legislation, concerning the implementation of its policy on equal treatment between foreign and national workers in respect of social security and employment taxes, dues or contributions, as well as access to legal proceedings. In addition, the Committee would appreciate if the Government would keep it informed of national practices regarding the payment of migrant workers. Taking into account the increasing feminization of migrant labour, the Committee refers to paragraphs 20-23 and 658 of its General Survey of 1999 on migrant workers and would be grateful if the Government would indicate the measures adopted or envisaged to guarantee that female migrant workers are treated on a footing of equality with male workers, whether or not foreign, in respect of the areas covered in Article 6, paragraph 1(a)-(d).

4. Article 8. Right of residence of permanent migrant workers. The Committee notes the information provided by the Government that immigrant workers enjoy the same rights as nationals and that, pursuant to section 13 of the Labour Code, an employer cannot terminate the contract of employment during the absence of the worker in case of sickness up to six months. The Committee notes however that the Government’s report does not provide information on the practical application of maintaining the right of residence in the event of incapacity to work of migrant workers admitted on a permanent basis. It asks the Government to supply information in its next report specifying the circumstances under which permanent residence in Madagascar may be cancelled.

5. Article 10. Bilateral agreements. The Committee notes the information in the Government’s report that, currently, no bilateral agreements exist. However, following problems encountered by Madagascar nationals migrating for employment (especially to Lebanon and Mauritius), the Government is having discussions with the relevant authorities of these countries with a view to finding a common solution, and is considering bilateral or multilateral agreements covering all matters relating to migration. The Committee asks the Government to keep it informed of any developments in regard to the conclusion of bilateral or multilateral agreements for the purpose of regulating matters of common concern in connection with the application of the provisions of the Convention.

6. Article 11. Definition of migrant workers. The Committee notes that section 41 of the Labour Code defines "displaced worker" as those who, in order to accomplish the work agreed upon, are obliged to settle "for a long-term period" in a workplace other than their usual residence or outside their country of origin. Recalling that the provisions of the Convention apply to both permanent and temporary migrant workers, with the exception of frontier workers, seafarers and short-term entry of members of the liberal professions and artists, the Committee requests the Government to clarify the meaning of "a long-term period" and to provide information enabling the Committee to ascertain that certain categories of migrant workers are not unduly excluded from the protection provided by the Convention.

Annexes I and II: Recruitment, placement and conditions of migrant workers

Annexes I and II. Article 3. The Committee notes from the Government’s report that the Ministry for the Public Service, Employment and Social Laws can approve the establishment of a private employment agency which has to supply information on a regular basis on the results of their activities. In view of the growing role of private agencies in the international migration process, the Government is asked to give additional information regarding the following: (1) the scope and conditions of the authorizations issued to private employment agencies with respect to migrant workers; and (2) measures adopted or envisaged to regulate the activities of private agencies, with a view to protecting migrant workers against any abuse, and the penalties for offences, particularly with regard to misleading propaganda.

7. Annex I, Article 5, and Annex II, Article 6. Supervision of contracts of employment. The Committee notes that the Ministry for the Public Service, Employment and Social Laws would be the competent authority regarding the supervision of contracts of employment. The Committee would be grateful if the Government could indicate in its next report whether contracts of employment for migrant workers are subject to a system of supervision in Madagascar and indicate the activities of the Ministry with respect to the enforcement of such a system in accordance with Article 5 of Annex I and Article 6 of Annex II of the Convention.

8. Annex I, Article 6, and Annex II, Articles 7 and 8. Information and assistance. The Committee notes that a service is in place to facilitate administrative services for migrant workers. It asks the Government to provide additional information on any measures taken or envisaged to assist migrant workers with respect to paragraphs (a)-(c) of Article 6 of Annex I and Article 7 of Annex II. Please also provide information on measures taken, as appropriate, to assist migrant workers on matters concerning their conditions of employment.

9. Annex I, Article 7, and Annex II, Article 12. See comments on point 5 of this direct request.

10. Annex II. The Committee asks the Government to provide additional information, including relevant provisions of laws and regulations, on the application in law and practice of Articles 9 to 11 of Annex II of the Convention.

11. Part V of the report form. Practical application. The Committee would appreciate receiving in the next report information, disaggregated by sex, nationality or ethnic origin, on the practical application of the Convention, indicating the number and the distribution of foreign nationals employed in Madagascar and Madagascar nationals employed abroad in the various categories of employment and activity sectors. Please also indicate any practical difficulties encountered in the application of the Convention, as required by Part V of the report form. Please also indicate whether ordinary or other courts of law have handed down decisions on matters of principle concerned with the application of the Convention. If so, please supply the text of these decisions.