Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Madagascar (Ratification: 2019)

Autre commentaire sur C143

Demande directe

2023
2022

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The Committee notes the observations of the Trade Union Confederation of Malagasy Revolutionary Workers (FISEMARE), received on 1 September 2022, and forwarded to the Government. The Committee notes the Government’s first report and requests it to provide further information on the following points.

Article 1 of the Convention. Basic rights. The Committee notes the Government's indication that the basic rights enumerated in the Constitution of Madagascar are applicable to all workers, regardless of their nationality. It notes, however, that in its observations, the FISEMARE indicates that many workers live without legal status and are not in practice protected against abuse. It also notes that, in its concluding observations, the United Nations (UN) Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) indicated its concern regarding reports of labour exploitation of migrant workers, including children, and of domestic servitude, forced labour and commercial sexual exploitation and noted that the State party had not provided data to give an overview of the situation or information on its efforts to prevent and eradicate these practices (CMW/C/MDG/CO/1, 15 October 2018, para. 33). The Committee notes that the UN Committee on the Rights of the Child (CRC) has also recently called on the Government to pay particular attention to migrant children in its efforts to combat sexual exploitation and abuse more generally (CRC/C/MDG/CO/5-6, 9 March 2022, paras. 23 and 25). The Committee recalls that Article 1 of the Convention provides that all migrant workers have basic rights without exception, regardless of whether they are in a regular situation. To this end, it is therefore essential to strengthen the capacity of the labour inspectorate and the judicial authorities to detect and punish abusive behaviour. In this regard, the Committee refers to paragraphs 517 and 519 of its 2016 General Survey entitled “Promoting fair migration”. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that the rights and guarantees afforded to migrant workers are enjoyed by all migrant workers and members of their families residing in Madagascar, that they are effectively implemented and, where they are not, that migrant workers have recourse to appropriate remedies and sanctions, which are applied in case of proven infringement. It also requests the Government to provide information on the activities of the labour inspectorate in this regard (including the number of cases of abuse detected, the handling of such cases, sanctions imposed and compensation awarded).

Article 2. Collection of data on immigration and emigration. The Committee notes the Government's indication that it collects information on migration flows through the consular registration of Malagasy workers abroad. The Committee notes, however, that the CMW has expressed concern at the lack of disaggregated statistical data to enable monitoring and evaluation of the implementation of the rights set out in the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW/C/MDG/CO/1, 15 October 2018, para. 17). The Committee also notes that, according to the profile drawn up by the International Organization for Migration (IOM) for Madagascar in 2021, migration data is not systematically collected and published, and the related data is not regularly updated. The various ministries tasked with managing migration collect their own statistics on migration but do not coordinate data-sharing (IOM, 2021 – Migration Governance Indicators – Madagascar – Profile 2021, p. 15). The Committee recalls that, to allow accurate assessments of changes over time, it calls upon governments to collect and analyse relevant data on labour migration flows, disaggregated by sex, and depending on migration patterns in the country or region, other factors such as origin and age, migrant status, sector of employment and occupation, both from and to their country (2016 General Survey, para. 649). The Committee therefore requests the Government to provide information on the measures taken to improve the collection of data on labour migration flows, to determine whether there are illegally employed migrant workers on its territory and whether there depart from, pass through or arrive in its territory any movements of migrants for employment in which the migrants are subjected during their journey, on arrival or during their period of residence and employment to conditions contravening international multilateral or bilateral instruments or agreements, or national laws or regulations.

Article 4. National and international collaboration. The Committee notes section 49 of Act No. 2014-40 of 20 January 2015 on combating trafficking in persons, according to which public bodies shall cooperate with non-governmental organizations, and with national and international organizations. It also notes the information included in the migration profile of the IOM, according to which the Ministry of Labour, Employment, Public Services and Labour Legislation (MTEFPLS) chairs the interministerial committee tasked with monitoring the emigration of Malagasy citizens (Decree No. 23993/2015), also comprising representatives of the Ministry of Public Security (MSP), the Ministry of Population, Social Protection and Promotion of Women (MPPSPF), the Ministry of the Interior and Decentralization (MID), the Ministry of Justice (MINJUS) and the Ministry of Foreign Affairs (MAE). With regard to international collaboration, the Committee notes Madagascar's participation in a series of regional collaboration processes in the field of migration (in particular, the Pan-African Forum on Migration, the Migration Dialogue for Southern Africa, the Migration Dialogue from the Common Market for Eastern and Southern Africa Member States, and the Migration Dialogue for the Indian Ocean Commission Countries (IOM, 2021 – Migration Governance Indicators – Madagascar – Profile 2021, pp. 14 and 16). The Committee requests the Government to provide detailed information on the activities of the interministerial committee tasked with monitoring emigration (statistical data on the number of emigrant workers, and the nature of information exchanged with host countries to prevent and sanction abuses, etc.). It also requests the Government to specify what information is exchanged as part of regional collaboration on migration and whether these exchanges are carried out systematically.

Article 5. Combating manpower trafficking. The Committee notes that section 38 of Act No. 2014-40 of 20 January 2015 on combating trafficking in persons grants jurisdiction to Malagasy courts where the author or victim is of Malagasy nationality, or where the author of the act is a foreigner present in Madagascar after commission of the act of trafficking or habitually resides in Madagascar, and specifies that the penalties provided for under the Act are applicable, even if certain elements that constitute trafficking were committed in other countries. However, the Committee notes the Government's indication that the Directorate of Labour Migration of the MTEFPLS lacks the means to dismantle international manpower trafficking organizations and networks in practice. The Committee emphasizes in this regard the need to take all necessary measures to promote national (through cooperation with workers’ and employers’ organizations), bilateral, regional and multilateral cooperation to address irregular migration with full respect of migrant workers’ human rights and to prosecute and punish those organizing and assisting in clandestine movements of migrants (2016 General Survey, para. 506). The Committee therefore requests the Government to take measures to allow the competent authorities, and in particular the Directorate of Labour Migration, to make arrangements, both nationally and internationally, to ensure that the authors of manpower trafficking can be prosecuted, whatever the country from which they exercise their activities.

Article 8. Administrative status of migrant workers in case of loss of employment. The Committee notes the Government's indication that the end of the validity of a work permit implies the end of authorization of residence for migrant workers. In this respect, the Committee recalls that Article 8 of the Convention expressly requires that permission to reside in the country should not be revoked where the migrant loses his or her employment prematurely 2016 General Survey, para. 434). The Committee therefore requests the Government to clarify the situation of a migrant worker who finds himself in an irregular situation by the mere fact of the premature loss of his employment.

Article 9. Access to the courts in case of departure. The Committee notes the Government's indication that migrant workers, like national workers, can present their claims before the courts and the offices of the regional labour inspectorates. While noting this information, the Committee emphasizes that experience shows that, in practice, migrants in an irregular situation will find it difficult to claim their rights, or to gain access to the courts, especially due to the fear of reprisals or deportation (2016 General Survey, para. 304). It also recalls that the worker should have the possibility of presenting his case to a competent body, either himself or, especially when he is no longer in the territory, through a representative (Migrant Workers Recommendation, 1975 (No. 151), para. 8(4)). The Committee therefore requests the Government to provide information on the measures taken to ensure that migrants, including workers in an irregular situation, can claim their rights before the competent authorities without fear of reprisals or deportation, and that they can present their cases even after they have had to leave the national territory, for example through representatives in Madagascar.

Articles 10 and 12. Adoption of a national policy to promote equality of opportunity and treatment. The Government indicates in its report that the country does not currently have a national policy on migration. The Committee recalls that the Convention requires the Government to develop a national policy promoting equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for migrant workers and members of their families lawfully in the territory. The implementation of a national equality policy implies the adoption of a range of specific measures, usually combining legislative and administrative measures, collective agreements, public policies, positive action, dispute resolution mechanisms, monitoring mechanisms, specialized bodies, practical programmes and awareness-raising activities. The Committee wishes to recall that this national policy can be implemented progressively, and adapted to national conditions, but that it must provide for the implementation of active and positive measures to achieve this aim of equality of opportunity and treatment (2016 General Survey, para. 336). The Committee requests the Government to provide regular information on the progress made in developing a national policy of equality of opportunity and treatment for migrant workers and members of their families who are lawfully within its territory.

Article 14(a). Right to mobility. The Committee notes that, according to section 9 of Act No. 62-006 of 6 June 1962 establishing the organization and control of immigration, foreign employees cannot take up employment without authorization from the Minister of Labour and Labour Legislation, and that this authorization is issued for a certain category of occupational activity. The Committee specifies that the Convention allows Members to make the free choice of employment, subject to the conditions that the migrant worker has resided lawfully in its territory for the purpose of employment for a prescribed period not exceeding two years. The Committee requests the Government to specify: (i) whether the authorization issued pursuant to section 9 of Act No. 62-006 is also required for foreign employees who have been employed in the country for more than two years; and (ii) the different categories of occupational activities for which these authorizations are issued.

Article 14(b). Recognition of qualifications. The Committee notes the Government's indication that the matter of recognition of qualifications acquired outside the territory is not currently regulated in the country. The Committee requests the Government to provide information on any measures taken to regulate the conditions for the recognition of occupational qualifications acquired outside the territory, and to indicate how the representative organizations of employers and workers have been consulted in this regard.

Article 14(c). Restrictions to access to employment. The Government indicates in its report that, according to section 17 of the general regulations applicable to public servants (Act No. 2003-011), no one shall be employed as a civil servant unless he or she is of Malagasy nationality. The Committee recalls that general prohibitions as regards the access of foreigners to certain occupations, when permanent, are contrary to the principle of equal treatment unless they apply to limited categories of occupations or public services and are necessary in the interest of the State (2016 General Survey, para. 370). The Committee therefore requests the Government to take measures to limit the categories of occupations or public services prohibited to foreign workers, so that these prohibitions are limited only to occupations or functions which, if opened to foreign workers, could present a risk to the interests of the State.