Rapport intérimaire - Rapport No. 28, 1958

A. A. The complainants' allegations

1. 136. The complaint of the Inter-Union Committee of the Central Trade Unions of Madagascar is contained in a telegram dated 26 November 1957 and a communication dated 22 December 1957.
2. 137. The complainants allege that certain of the central trade union organisations decided to call a strike on 26 and 27 November 1957. The purpose of the strike-in all the public, private and agricultural sectors-was to protest against the national economic policy and the provisions of Order No. 404-IGT of 7 November 1957 to modify family allowances and Order No. 408-IGT of 7 November 1957 to fix wage zones and minimum guaranteed wages in Madagascar, regarded by the complainants as insufficient. Claims were put forward with respect to the private sector for specified guaranteed minimum wages, family allowances, maternity allowances, etc., the establishment of five wage zones, extension of collective agreements in the various occupational branches, pensions and action against unemployment. With respect to the public sector, claims were made for a revision of wage indices, standardisation of rates and methods of granting family benefits, equal treatment of auxiliary employees and standardisation of provisions for the integration of employees governed by local statutes in the future national civil service. With respect to the agricultural sector, the setting up of agricultural chambers separate from the chambers of commerce and industry was demanded.
3. 138. The complainants forward a copy of a Notice from the General Inspectorate of Labour declaring that the strike would be illegal, which they consider to constitute an infringement of the right to strike. The Notice points out that the right to strike laid down in the Constitution is affected by legislative provisions forbidding strikes until all the procedures laid down by law for the settlement of collective disputes between employers and workers have been exhausted. The Notice goes on to state that there was no dispute between employers and workers as the satisfaction of most of the claims was solely within the competence of the authorities and not of the employers and that the strike was therefore aimed at the governmental authorities and against their economic policy. This, states the Notice, has been shown by court decisions to be an illegal type of strike because it interferes with the exercise of powers vested in the public authorities. The Notice therefore warns workers who might participate in the strike that they would run the risk of loss of wages or of dismissal (subject to the approval of the labour court) without any right to compensation.
4. 139. In conclusion, it is alleged that over 500 strikers were dismissed and that the complainants have instituted proceedings in 300 cases before the labour courts.
   • ANALYSIS OF THE REPLY
5. 140. In its reply dated 25 February 1958 the Government states that the Labour Inspectorate considered the strike to be illegal since the claims made were for the reform of matters as dealt with in two enactments and could not, therefore, be submitted to the ordinary legal conciliation and arbitration procedures ; the trade unions showed an intention of interfering in a field reserved to the public authorities. Nevertheless, states the Government, the strike took place in full freedom, but was supported by only 2.2 per cent of the wage earners in Madagascar. Some dismissals were made, most of which might be revoked at an early date. If some gave rise to judicial proceedings, it would be for the competent courts to pronounce as to the legality or illegality of the strike.
6. 141. The Government considers that the inspiration of the strike was essentially political and that the complainants are really reproaching the Government because the Notice which was issued (see paragraph 138 above) and the social legislation in force are considered by them to have exercised moral persuasion which caused the strike to be poorly supported. In fact, declares the Government, the strike was directed against the Government because it was an official body which, by law, fixed minimum wages and allowances.

B. B. The Committee's conclusions

1. 142. The essential points raised in the complaint show that a strike was called in protest against the economic situation and, more specifically, in protest against the minimum rates of wages and allowances fixed by Order and in support of demands for other action to be taken by the authorities (fixing of new rates and allowances, legal extension of the application of collective agreements, action against unemployment, etc.). It is alleged that the authorities interfered with the exercise of the right to strike by issuing a Notice warning workers of their liability to be dismissed, according to law, if they took part in what the authorities regarded as an unlawful strike against the Government. Finally, it is alleged, over 500 strikers were dismissed, and in 300 cases the complainants have instituted procedures before the labour courts. The Government maintains that the Notice was issued simply to warn intending strikers of the risks they ran according to law and that the strike was illegal according to jurisprudence because it was directed against the Government, only the Government being responsible for the taking of the legal measures objected to and competent to deal with the claims put forward. But the Government also indicates that any legal proceedings before the labour courts will establish the legality or illegality of the strike, and the complainants state that such action has been instituted.
2. 143. The Committee has, in previous cases, taken the view that it is not an infringement of freedom of association to treat as illegal a strike designed to coerce the government in regard to a political matter, and that it is also not an infringement for a government to inform an Organisation that a proposed strike would, according to the legal advice received by the government, be illegal because not in furtherance of a trade dispute. In the present case the Government maintains both that the strike was aimed at the Government, although the issues were economic in nature, and that its intervention before the strike was confined to issuing a warning of the consequences of participation in an illegal strike called other than in furtherance of a trade dispute. Nevertheless, the Government makes it clear that, although it is convinced that the strike was unlawful, the matter would be clarified with respect to this issue, and with respect to the justification or otherwise of dismissals arising out of the strike, by any action that may be instituted in the labour court-action which, the complainants state, they have already instituted. The Committee has followed the practice in earlier cases of not proceeding to examine matters which are the subject of pending judicial proceedings, provided that these proceedings are attended by proper guarantees of due process of law, because the pending judicial discussion may make available information of assistance to the Committee in appreciating whether or not allegations are well-founded. In these circumstances the Committee, noting the complainants' statement that proceedings have been instituted in the labour court and the Government's statement that any such proceedings would entail a decision as to the legality or otherwise of the strike and, therefore, of the consequential dismissals, has decided to adjourn its further examination of the case for the time being and to request the Government to be good enough to inform it as to the judgment of the labour court with respect to the above issues as soon as it becomes known.

144. The Committee therefore recommends the Governing Body to take note of the present interim report, it being understood that the Committee will report further on this case when it has received the information requested from the French Government.