Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Articles 5 and 6(a) of the Convention. Preferential treatment of wage claims. The Committee notes that, in reply to its previous comment, the Government refers to Act No. 2003-042 of 3 September 2004 on collective procedures for the discharge of liabilities, section 97 of which provides that claims arising from an employment or apprenticeship contract are guaranteed, in the event of judicial administration or liquidation, by the privilege relating to wages established for the cases and the amounts defined by labour legislation and the provisions relating to securities. In this regard, the Committee points out that the legislation of Madagascar displays great similarities to the corresponding provisions adopted under the auspices of the Organization for the Harmonization of Business Law in Africa (OHADA). As the Committee understands it, the privilege of workers established by section 73(2) of the Labour Code for remuneration due to them for the last 60 days of work actually constitutes a “super-privilege” within the meaning of section 98 of Act No. 2003-042. If this interpretation is correct, wage claims protected in this way must be paid in the ten days following the opening of the collective procedure and before any other claim. The Committee’s understanding is also that section 162(4) of Act No. 2003-041 of 15 July 2004 on securities establishes for the benefit of employees a general privilege – in addition to the “super-privilege” – with regard to wage claims arising in the year preceding the judicial decision to open a collective procedure. The Committee requests the Government to confirm whether the national legislation indeed establishes, in accordance with the procedures described above, a general privilege and a “super-privilege” to protect workers’ wage claims in the event of the employer’s insolvency. If this is indeed the case, the national legislation would be in full conformity with – and in fact considerably more favourable than – Article 6(a) of the Convention, which states that the privilege must cover at least the workers’ claims for wages relating to a period of at least three months prior to the insolvency or prior to the termination of employment.

Article 6(c). Claims in respect of paid absence. The Committee notes that the Government’s report does not contain any reply to its previous comment on this point. The Committee hopes that the Government will take the necessary measures as soon as possible to ensure that the employees’ privilege also covers their claims for amounts due in respect of paid absence other than paid holidays (for example, sick leave or maternity leave), relating to a period determined by the national legislation – at least three months – prior to the insolvency or prior to the termination of employment.

Article 7. Limitation of protected amounts. Further to its previous comments on this subject, the Committee requests the Government to indicate whether regulations fixing a ceiling on the privilege established by section 73 of the Labour Code have been adopted. If so, the Government is requested to send a copy of this text.

Part IV of the report form. The Committee notes the information concerning the number of workers protected by the legislation which the Government supplied in its report. It requests the Government to continue supplying information on the application of the Convention in practice, including, if available, statistical data on the number of bankruptcies per year, the number and amount of wage claims which have been settled by legal privilege, etc.