Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 331, Juin 2003

1. 579. The Committee examined this case at its session in March 2002, at which it submitted an interim report to the Governing Body [see 327th Report, paras. 645-663].
2. 580. The Government provided additional observations in a communication dated 1 April 2003.
3. 581. 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).

A. Previous examination of the case

1. 582. At its session in March 2002, with regard to the Committee’s interim conclusions, the Governing Body had approved the following recommendations:
   • (a) The Committee reminds the Government that in future, any decision concerning participation by a workers’ organization in a tripartite body should be taken in full consultation with all trade union organizations of a given representativity determined according to objective criteria. The Committee requests the parties concerned to spare no effort to reach an agreement concerning the composition of the CNaPS board and requests the Government to keep it informed in this regard.
   • (b) As concerns the new draft decree concerning the composition of the CNaPS board, the Committee recalls that it is for the workers’ organizations, and not for the authorities, to choose in full freedom all of their representatives within the tripartite bodies.
   • (c) The Committee asks the Government to amend section 1(3) of Decree No. 2000-291 to allow the representativity of trade unions to be determined without making it a requirement that members’ names be communicated to the authorities. The Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government to send without delay its observations concerning allegations of interference in internal trade union affairs by the Ministry of Public Service, Labour and Social Law, concerning the allegations of infringements of the right of collective bargaining resulting from Decree No. 97-1355.

B. The Government’s reply

1. 583. In its reply of 1 April 2003, while taking note of the Committee’s recommendations, the Government reports numerous meetings on the issue of the CNaPS board which have produced encouraging results. Moreover, the Government states that the Committee will be informed as soon as possible of the measures taken concerning section 1(3) of Decree No. 2000?291. The Government adds that efforts have been made to ensure observance and effective protection of freedom of association, trade union rights and the right to collective bargaining. Finally, the Government refers to the establishment of the National Employment Council in accordance with Order No. 6238/2002 of 5 November 2002. The Council is a tripartite consultative body responsible for labour, employment and social protection.

C. The Committee’s conclusions

1. 584. Taking into account the latest information provided by the Government, the Committee recalls that the complaint raised three main issues: (1) the change in composition and functioning of the CNaPS board, a tripartite body, initiated by the Government; (2) the requirement to communicate the names of members of trade unions in accordance with section 1(3) of Decree No. 2000-291 to establish the representativity of trade unions with a view to their participation in the work of the Higher Civil Service Council; (3) allegations relating to interference in the internal affairs of trade unions by the Ministry of Public Service, Labour and Social Law and the infringement of the right of collective bargaining resulting from Decree No. 97-1355 of 4 December 1997.
2. 585. With regard to the first issue, the Committee wishes to recall the following points. The issue had initially been raised because of the Government’s adoption of Decree No. 99?673 of 20 August 1999 changing both the composition of the CNaPS board (by reducing the number of representatives of workers’ organizations from eight to six) and its mode of operation (by allowing the Government to participate in the rotating presidency). At the time, this Decree had probably been the cause of the social dialogue breaking down. The issue had subsequently been re-examined by a tripartite ad hoc commission established following the tripartite memorandum of 8 May 2000 signed by the Government and the social partners. It was not possible to reach agreement within this commission. Furthermore, as one of the provisions of the Decree had been ruled unconstitutional by the High Constitutional Court on 23 August 2000, the Government had developed another proposed decree which was intended to grant the Ministry the right to appoint one of the six workers’ representatives. The Government explained in its communication of 29 January 2002 that, because of the low rate of unionization of Malagasy workers, it was concerned about meeting the demand of the vast majority of workers, who were not trade union members, to participate in social dialogue and therefore to be represented in some way other than by traditional professional organizations. The Government recalled that the memorandum allowed members of tripartite bodies to be co-opted “because of their particular abilities”, without them necessarily being from a representative organization.
3. 586. The Committee notes the Government’s general statement regarding the fruitful nature of meetings held on the matter. However, the Committee considers it appropriate to reiterate its previous conclusions. The Committee therefore recalls the importance that should be attached to full and frank consultations taking place on any questions or proposed legislation affecting trade union rights; and that any decisions concerning the participation of workers’ organizations in a tripartite body should be taken in full consultation with the trade unions whose representativity has been objectively proved [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, paras. 927 and 943]. Moreover, the Committee wishes to underline that any initiative aimed at broadening the representation of workers beyond trade union organizations should not undermine the prerogatives, with regard to the representation of employers’ and workers’ interests, of the respective organizations. Under these circumstances the Committee expects that an agreement on the composition of the CNaPS Board will soon be reached, and requests the Government to inform it of the terms of that agreement. Furthermore, the Committee requests the Government to preserve the role of employers’ and workers’ organizations in the aforementioned terms if it follows up its stated wish to broaden the composition of certain tripartite institutions. The Committee requests the Government to keep it informed on all aspects of the matter.
4. 587. Regarding the second issue, the Committee considers it useful to recall that the issue of the representativity of trade unions was raised in the first place with regard to the Higher Civil Service Council in the specific terms mentioned above. In accordance with the tripartite memorandum, it was also raised in general with regard to participation in social dialogue structures, social policy and social funds management bodies and notably, with regard to the CNaPS board. In this regard, the tripartite ad hoc commission had, during a meeting in June 2000, considered the issue of the determination of the representativity of organizations based on a comparison of data collected through inspections and data produced by the organizations themselves. The latter, it is claimed, were asked to provide the Ministry of the Public Service, Labour and Social Law with the information relating to the representativity criteria kept by their regional unions, but were unable to produce such figures.
5. 588. Whilst taking note of the Government’s reference to the effort made to ensure greater respect for freedom of association and its effective application, the Committee recalls that objective, pre-established and precise criteria to determine the representativity of an organization of employers or workers should exist in legislation, so as to avoid any possibility of bias or abuse and that this assessment should not be left to the discretion of governments [see Digest, op. cit., paras. 314 and 315]. Consequently, the Committee expects, as it had called for in its previous report, that section 1(3) of Decree No. 2000-291 will be amended quickly so that the representativity of trade unions can be established without any requirement to compile a list of names, which could make acts of anti-union discrimination easier. The Committee also requests the Government to ensure, in general, that the determination of the representativity of professional organizations is based on objective and precise legal criteria, instead of being left to the Government’s discretion. Finally, the Committee requests the Government to keep it informed on all aspects of the matter.
6. 589. As regards the allegations of interference in the internal affairs of trade unions by the Ministry of the Public Service, Labour and Social Law and infringements of the right of collective bargaining, in the absence of any government observation on this point, the Committee would like to underline the following. Concerning the first category of allegations, the Committee recalls that the complainants were reporting initiatives of the Ministry of the Public Service, Labour and Social Law such as missions of workers’ delegates without the knowledge of their confederations for the purpose of appointing them to regional tripartite bodies, or the request to put forward candidates other than those already put forward by the confederations for membership of these bodies. The Committee recalls that freedom of association implies the right of workers and employers to organize their administration and activities without any interference by the public authorities, and requires that the latter exercise great restraint in relation to intervention in the internal affairs of trade unions [see Digest, op. cit., paras. 416 and 761]. If confirmed, the allegations would seriously undermine the authority of trade union leaders and the cohesion of trade unions. The Committee therefore urges the Government to keep it informed in this regard.
7. 590. Concerning the allegations relating to infringements of the right of collective bargaining, the Committee recalls that the complainants call into question Decree No. 97-1355 of 4 December 1997, according to which the social partners can enter into collective bargaining on working conditions only after the Ministry for the Development of the Private Sector and Privatization has authorized them to do so. In this respect, the Committee recalls that the voluntary bargaining of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association [see Digest, op. cit., para. 844]; the very system of a preliminary administrative approval, whether it concerns the initiation of collective bargaining or the entry into force of a freely concluded collective agreement, is contrary to the principle of voluntary collective bargaining. The Committee requests the Government to amend Decree No. 97-1355, as appropriate, to make it compatible with the principle of voluntary collective bargaining, and to keep it informed in this regard.
8. 591. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.