Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Madagascar (Ratification: 2019)

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The Committee welcomes the Government’s first report. It also notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE), received on 1 September 2022. The Committee requests the Government to provide its comments on the observations made.

Article 1 of the Convention. Definitions. The Government indicates that Malagasy law does not contain a definition of domestic work or domestic workers. The Government does not provide any information on the situation of workers who perform domestic work occasionally or sporadically. The Committee notes that, in its 2022 General Survey entitled “Securing decent work for nursing personnel and domestic workers, key actors in the care economy”, it observed that “to ensure effective protection of the rights of domestic workers, the relevant legislation should ensure clarity with respect to legal terminology, the definition of terms and the scope of the specific laws and regulations governing domestic work” (paragraph 555). The Committee requests the Government to indicate any measures taken or envisaged to incorporate definitions of domestic work and domestic workers into national legislation and collective agreements. It also requests the Government to provide information on the manner in which it guarantees the protection of persons who perform domestic work occasionally or sporadically.

Article 3(1). Effective promotion and protection of human rights. The Government indicates that regional inspection services are responsible for ensuring compliance with labour law, including human rights and fundamental rights, through advisory, dispute settlement and supervisory activities. However, the Government points out that, in terms of domestic work, labour inspectors and controllers find it difficult or impossible to access the workplaces of domestic workers. While aware of these difficulties, the Committee recalls that Article 3(1) of the Convention requires the State to take measures to ensure the effective protection of the human rights of all domestic workers, and notes that solutions exist and have already been implemented in a satisfactory manner in several countries. The Committee invites the Government to refer to the guide published by the Office on the matter, which is entitled “Labour inspection and other compliance mechanisms in the domestic work sector” (https://www.ilo.org/public/libdoc/ilo/2015/487119.pdf) or the module of the International Training Centre of the ILO entitled “Labour inspection in domestic work” (Domestic Work and LI module EN (ilo.org)). The Committee therefore requests the Government to provide, with its next report, detailed information on the measures discussed at the national level and those envisaged to ensure in practice that domestic workers enjoy all the fundamental labour rights to which they are entitled.

Article 3(2)(b).Elimination of all forms of forced or compulsory labour. The Government indicates that the Labour Code prohibits forced or compulsory labour. The Government states that, to give effect to Act No. 2014-040 on combating human trafficking, it established a national anti-human trafficking office. The Government adds that a number has been set up to report cases of trafficking. It also lists the following preventive measures: awareness raising among the population of human trafficking; the dissemination of Act No. 2014-040 on combating human trafficking and providing training for those involved in assisting victims (100 person trained in 2019). The Government also mentions several actions aimed at assisting victims of human trafficking. In this respect, the Committee refers to its comments of 2022 on the application of the Forced Labour Convention, 1930 (No. 29), in which it noted the press release of the International Organization for Migration (IOM) dated 30 July 2019, according to which human trafficking remains a considerable challenge in Madagascar, particularly for women in the domestic sector. The Committee requests the Government to provide detailed and updated information on the measures taken or envisaged to ensure the implementation of national provisions prohibiting forced or compulsory labour, including in the sector of domestic work, and in particular with regard to women.

Article 3(2)(c), and Article 4(1).Child labour. Minimum age. The Government indicates that section 100 of the Labour Code sets the minimum age for admission to work in Madagascar at 15 years. Furthermore, section 10 of Decree No. 2018-009 provides that domestic work that is dangerous and abusive, and likely to harm the health and development of a child, is prohibited for children. Regarding the implementation of these provisions, the Government indicates that section 29 of Decree No. 2018-009 provides that “a census of each family, household or house must be carried out by village chiefs (fokontany) in order to identify children engaged in the worst forms of labour and immediately remove them from such labour”. In this regard, the Committee refers to its 2022 comments on the application of the Minimum Age Convention, 1973 (No. 138), in which it noted the concern expressed by the Committee on the Rights of the Child, according to which 4 per cent of children in Madagascar have an economic activity or perform domestic work, particularly in rural areas. In its comments, the Committee observed that it had been over ten years since the Government had discussed a reform of the age of completion of compulsory schooling, with no outcome achieved. The Committee recalls that if compulsory schooling comes to an end before the age at which young persons are legally entitled to work, there may arise a vacuum which opens the door for the economic exploitation of children. The Committee requests the Government to provide detailed information on the measures taken to ensure the implementation of national provisions prohibiting child labour, including in the domestic work sector. Recalling that compulsory education is one of the most effective means of combating child labour, particularly domestic work, the Committee requests the Government to provide detailed and updated information on the measures taken to set a minimum age of completion of compulsory schooling corresponding to the minimum age for admission to work, in order to reduce the increased risk of domestic exploitation of children and ensure that the economic activities carried out by domestic workers below 18 years of age do not interfere with their opportunities for further education or vocational training.

Article 5. Effective protection against all forms of abuse, harassment and violence. The Government refers to the provisions of the Labour Code prohibiting and penalizing sexual and moral harassment (particularly sections 5, 23, 261 and 262), as well as Act No. 2019-008 on gender-based violence and Act No. 2014-040 on combating human trafficking. The Government adds that a free hotline has been set up for cases of gender-based violence. It reiterates that, with regard to domestic work, practical difficulties prevent labour inspectors from inspecting the workplaces of employees. Concerning the observations of the social partners, FISEMARE denounces the common practice of sexual and moral harassment of employees in Madagascar. FISEMARE observes that employees do not file a complaint out of fear of the consequences. FISEMARE invites the Government to improve and clarify the legislation in order to facilitate its implementation, particularly regarding the evidence to be provided. The Committee recalls that paragraph 7 of the Domestic Workers Recommendation, 2011 (No. 201) establishes that Member States should consider establishing mechanisms to protect domestic workers from abuse, harassment and violence, such as establishing accessible complaint mechanisms for domestic workers to report cases of abuse of this nature. The Committee requests the Government to communicate detailed and updated information on the measures adopted, including through the media, to ensure that domestic workers benefit from effective protection against all forms of abuse, harassment and violence. The Committee also asks the Government to provide statistical information on the number of complaints filed, with regard to the area of domestic work, of harassment, abuse or violence, to the various competent authorities, and the outcome of such complaints, as well as the penalties imposed for the perpetrators of such acts and the remedies granted.

Articles 6 and 9. Domestic workers residing in the household for which they work. Decent living conditions that respect their privacy. The Committee notes that the Government has not provided information on the existence of provisions governing the living conditions and respect of the right to privacy that domestic workers residing in the household for which they work should enjoy (Article 6). The Government also indicates that no provision has been adopted to apply Article 9 of the Convention. The Committee recalls that when workers reside in the household, legal provisions on their living conditions are an essential component of the promotion of decent work for them. It is therefore important for the legislation to clearly indicate the obligations of employers in this regard. The Committee requests the Government to specify the measures taken or envisaged in order to ensure that domestic workers: (a) are free to reach agreement with their employer or potential employer on whether to reside in the household; (b) are not obliged to remain in the household or with members of the household during periods of daily and weekly rest or annual leave; (c) are entitled to keep in their possession their travel and identity documents; and (d) enjoy decent living conditions that respect their privacy when they reside in the household of their employer.

Article 7. Understandable information on conditions of employment. The Government indicates that, in accordance with section 6 of the Labour Code, employment contracts must be evidenced at the time of recruitment, by a written document specifying at least the function, occupational category, minimum classification index, wage of the worker, and the effective date of the contract. The contract must be written in Malagasy or French, and be established in duplicate: the first copy is kept by the employer and the second is given to the worker immediately after the two parties have signed the contract. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that, in practice, domestic workers truly have the means to be informed, in an appropriate, verifiable and easily understandable manner, particularly for migrant domestic workers, of their terms and conditions of employment, including conditions of repatriation, where applicable, and terms and conditions relating to the termination of employment, including the notice period to be observed by both parties.

Article 8(3).Cooperation regarding the application of the Convention. The Government indicates that, to date, no measure has been taken in cooperation with other Member States of the ILO to ensure the effective application of the provisions of the Convention. The Committee requests the Government to provide updated information on the number of domestic workers recruited locally to perform domestic work in another country and to indicate the measures taken or envisaged to ensure, in cooperation with other Member States of the ILO, the effective application of the provisions of the Convention to migrant workers.

Article 10. Equal treatment in relation to hours of work, overtime, periods of rest and leave. Remuneration of periods remaining at the disposal of the household. The Government indicates that the information concerning the application of Article 10(1) and (2), is not available (normal hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave; weekly rest shall be at least 24 consecutive hours). Regarding Article 10(3), the Government indicates that Order No. 551-IGT of 10 March 1954 establishing the occupational classification of workers employed in jobs as “domestic servants”, gives effect to it. However, this Order does not contain any provisions on the remuneration of periods during which domestic workers remain at the disposal of their employer. The Committee requests the Government to indicate the measures taken or envisaged to ensure equal treatment among domestic workers, including live-in domestic workers, and workers in general in relation to hours of work, overtime compensation, periods of daily and weekly rest and paid annual leave. The Committee also requests the Government to provide detailed information on the manner in which it is ensured that the periods in which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household are considered as paid working hours, as referred to in Article 10(3).

Article 12(2). Payment in kind. Section 62, paragraph 2, of the Labour Code limits the payment of wages in kind to “cases in which the employer is obliged to provide the worker with accommodation and food”. The Government indicates that, by virtue of Order No. 688-IGT of 23 March 1954, the deductions to be made in respect of rent are equivalent to half-an-hour’s wages per day. Regarding food, the Government adds that, in accordance with Decree No. 58-031 of 26 December 1958, the deductions are equivalent to two hours’ wages per day, with breakfast not taken into account. The Committee requests the Government to indicate the measures taken to ensure that payments in kind are freely agreed to by the domestic worker, are for the personal use and benefit of the worker, and that the monetary value attributed to them is fair and reasonable. The Committee also requests the Government to provide a copy of Order No. 688-IGT of 23 March 1954 and Decree No. 58-031 of 26 December 1958, which are mentioned in its report.

Article 13. Occupational health and safety. The Government indicates that the information concerning the application of Article 13 of the Convention is not available. The Committee recalls that the right to asafe and healthy working environment was recently included in the ILO Declaration on Fundamental Principles and Rights at Work of 1998. It therefore requests the Government to make every effort to provide, in the next report, detailed information on the measures taken or envisaged, in consultation with the social partners, to guarantee the occupational safety and health of domestic workers, with due regard for the specific characteristics of this work.

Article 15. Private employment agencies. The Government indicates that the conditions governing the operation of private employment agencies are determined by Order No. 20.307/2015 MEETFP of 11 June 2015. The Government underscores that, in accordance with section 249 of the Labour Code, no fees or costs may be charged to workers using a private placement agency. The Government specifies that the conditions governing the operation of private agencies apply to the recruitment and placement of all workers, including domestic workers. The Government indicates, however, that, in response to abuses, Order No. 20.308/2015/MEETFP was adopted on 11 June 2015, which repealed the licences of all private employment agencies in Madagascar. Regarding the conditions governing the operation of private employment agencies, the Committee refers to its comments on Private Employment Agencies Convention, 1997 (No. 181) (pending comments). The Committee also requests the Government to provide information on the measures taken or envisaged to ensure the existence of appropriate mechanisms to investigate abusive or fraudulent practices of private employment agencies in relation to domestic workers. The Committee furthermore requests the Government to provide information on any consultations held with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers, concerning the application of Article 15(1) of the Convention.

Article 17(1) and (2). Complaint mechanisms. Labour inspection. The Government indicates that inspectors and labour controllers are not qualified to enter private households as they are not criminal investigation police officers. Referring to its comments on Article 3 of the Convention, the Committee requests the Government to provide detailed and updated information on the measures taken or envisaged for complaint mechanisms ensuring compliance with national legislation for the protection of domestic workers. The Committee also requests the Government to clarify the status of the complaints received from domestic workers concerning compliance with national legislation on the protection of workers. The Committee also requests the Government to provide detailed information on the measures taken or envisaged with a view to developing and applying, in practice, a labour inspection strategy in the domestic sector.