REPOBLIKAN'I MADAGASIKARA Tanindrazana - Fahafahana - Fandrosoana
Act No. 2003-044 on the Labour Code
EXPLANATORY MEMORANDUM Madagascar is going through profound changes in the political, social and economic. These mutations, translating, for the sake of rapid and sustainable development, on the one hand, at the leadership level, by a desire to achieve the main lines of development defined in the PRSP and the Business Plan and, secondly, by awareness level of the population, investors as well as employees on their role as actors in national life, must be enclosed to the means of a legislative and regulatory paraphernalia Customised recovery.
It is in this spirit that it was necessary to conduct an overhaul of labor legislation. Indeed, everyone agrees that the current Law No. 94-029 of 29 August 1995 poses problems reading, understanding and application.
This Act Labor Code establishes the general principles applicable to all workers whose employment contract is executed in Madagascar except for supervised state officials and workers governed by the Code of Merchant Marine ; and to all employers regardless of their status or its industry.
The amendment made involves the development of a well-defined set of rules, stable and effectively implemented, essential element of trust and commitment in time for the worker and the employer, the main actors in relations job.
The development of this Code took into account the fundamental principles such as:
respect for fundamental rights provided by international labor Conventions;
Promoting social dialogue at all levels (bipartite or tripartite) between the main actors of the world of work: the employer, the worker and the State;
Constant search for balance of interests within the enterprise; clearly defining the responsibilities of each actor; securing employment and the fight against unemployment; the development of an employment policy towards the establishment of the Autonomous Provinces
In addition, some major innovations deserve special emphasis.
For example, the rules of hygiene, safety and working environment, which is the subject of a separate code by Law No. 94-027 of 17 November 1994, are now merged with the Labour Code, for the sake of application easier because more logical.
Second, a National Labour Institute has created the place and stead of the National Workers' Education Centre. Besides workers' education, the Institute's mission is to collaborate in research carried out by the technical departments work, employment and social protection and to provide training in labor education of labor inspectors and controllers.
Moreover, criminal sanctions have been revised to make them effective and efficient, but only by punishing more severely the values considered fundamental.
This Labour Code contains ten tracks:
Title 1: General Provisions; Title 2: Contract of employment; Title 3: working conditions; Title 4: Terms and hygiene, safety and working environment
Title 5: industrial relations; Title 6: vocational training; Title 7: From the labor dispute; Title 8: Organizations and control means; Title 9: Penalties; Title 10: Transitional and Final Provisions.
This is the purpose of this Act.
2 REPOBLIKAN'I MADAGASIKARA Tanindrazana- Fahafahana Fandrosoana-Law No. 2003-044
on the Labour Code, the National Assembly and the Senate have adopted in their respective plenary dated 11 December 2003 and 10 June 2004, the Act which reads as follows: PART I
GENERAL PROVISIONS CHAPTER I tHE WORKER aND EMPLOYER
Article 1. this Law is applicable to any employer and any worker whose employment contract, whatever its form, is executed in Madagascar. As such, is subject to the provisions of this Act, every employer regardless of nationality, status or its industry.
The provisions of this Act are not applicable to supervised agents of the State governed by the General Staff Regulations of officials and workers governed by the Maritime Code.
Article 2. Is considered worker for the purposes of this Act, regardless of sex or nationality, anyone who is committed to his professional activity, remuneration, under the direction and authority of another person or entity, public or private.
Also considered as workers under this Code:
persons rewarded for the task or piece usually running on behalf of a company, the work by themselves, without any need look if there is between them and their employer, a link of legal subordination, or if the local implementation material or tools they use belong to them;
People usually running on behalf and under the authority of another person's work by themselves, whatever the method of remuneration and working hours. Article 3.- Is considered employer under this Code 3
Labour, any natural or legal person, public or private and any public or collective enterprise, with or without a profit, assuming the risks financial, agrees, pays and direct the staff who rents his services.
CHAPTER II LABOUR FORCE
Article 4. Forced or compulsory labor is prohibited. The term "forced or compulsory labor" means all work or service which is exacted from any person under the menace of any penalty for which said person has not offered himself voluntarily.
The provisions of the preceding paragraph shall not apply in the cases listed below:
Works, services, relief required in the circumstances accidents, shipwrecks, floods, fires or other disasters as well as in cases of robberies, looting, flagrant offenses, public clamor or judicial enforcement.
Community service work performed pursuant to a voluntary fokonolona by members of or in connection with minor communal and become enforceable agreement.
Work to purely military when required under the legislation on the organization of national defense and community service voluntarily made as part of the National Service.
Any work required of an individual as a consequence of a conviction in a court of law, provided that the work or service is carried out under the supervision and control of public authorities and is intended for achievements of public interest. However, are prohibited the imposition of work to persons in custody and the free transfer of prison labor to private individuals, companies or associations, even if they are responsible for the implementation of public works.
4 CHAPTER III RESPECT FOR THE DIGNITY OF THE HUMAN PERSON
Article 5. Every employee is entitled to respect for their dignity. In all labor relations, no one may be the victim of abuse or violence affecting the physical or moral integrity provided and sanctioned by the Penal Code.
No employee may be subject to a penalty or discrimination in his career or in his work, or a dismissal for resisting harassment actions of an employer's representative or any other person who, abusing the authority conferred by his functions, relationships or position in the company, gave instructions, made threats, imposed constraints or exerted pressure of any kind on the employee in order to obtain sexual favors or other nature for his own benefit or the benefit of a third party.
Is considered sexual harassment at work, any unwanted conduct of a sexual nature that interferes with work, conditions of employment or normal course of career or creates an intimidating work environment.
No employee may be subject to a penalty or discrimination in his career or in his work, or dismissed for testifying for the actions defined in the preceding paragraph or for having reported .
When the body search of the staff at the entrance or exit of work, is justified by the particular nature of the work or activity of the company, it can in no way be performed under conditions contrary to the dignity of employees. In any case, the body search shall be performed by a person of the same sex as that which undergoes.
PART II CONTRACT OF EMPLOYMENT CHAPTER I
CONTRACT OF SECTION 1 From the conclusion of the labor contract
Article 6. The employment contracts are passed freely subject to respect for public order provisions. They are subject to rules of law common
5, including the consent of the parties, the capacity to contract, a certain object and a lawful cause.
It is found at the time of hiring, in writing specifying at least the function, the professional category, the minimum index classification, salary of the worker and the date of the policy effect.
It is written in Malagasy or French.
It is prepared in duplicate: the first being held by the employer while the second must be returned immediately to the worker after signature by both parties.
In the absence of written contract, the existence of an employment contract may be proved by any means.
The labor contract is free from stamp duty and registration.
Article 7. Whatever the place of conclusion and the residence of one or the other party, any employment contract to be executed in Madagascar is subject to the provisions of this Code of Labour.
Article 8. The employment contract may be concluded for an indefinite period or a fixed term.
A fixed term contract is a contract characterized at the time of its conclusion, the existence of a term fixed by the parties or linked to the event on the future occurrence is certain even if it does not depend the will of the parties.
The fixed-term contract may not exceed two (02) years.
May thus be subject to a fixed-term contract work that is:
do not last more than two (02) years; do not fall within the normal activities of the institution; focus on a particular project whose implementation is the
term of the contract.
The fixed-term employment contract of a minimum period of six (06) month automatically becomes a term employment contract 6
undetermined after two renewals. Rehiring the same position of a worker bound by a
term contract after a gap of no more than one (01) months is considered a renewal.
Article 9. When the conditions for an agreement of fixed-term work are not met, the contract is deemed concluded for an indefinite period.
Shall be considered concluded for an indefinite period:
the fixed-term contracts and test agreement under which neither party has indicated its willingness to cease labor relations;
The day of the contract the same position occupied intermittently for six (06) consecutive months on behalf of an employer and shall average twenty (20) working days per month.
Article 10.- The worker committed his services to an employer.
However, it is entitled to exercise outside of their working time, any activity of a professional nature not likely to compete with the company or adversely affect the performance of the agreed services.
Is null and void any clause in a contract prohibiting the employee from exercising any activity on the expiry of the contract, without prejudice to the obligation of the employee to professional secrecy vis-à-vis his former employer under penalty of a sentence damages jointly and severally with the new employer.
However, it is forbidden to the employee inventor to engage with an employer engaged in the same activity until the invention created or being created is protected by a patent or in case of bankruptcy of the 'business. In return, he is entitled to an invention premium fixed, failing agreement between the parties, by the competent court.
Employee inventor is considered a person whose employment contract is governed by the Labour Code and which participates in invention activities.
Article 11.- The material terms of a contract of employment, such as occupational classification, compensation, and the position will
7 may be subject to a less favorable change.
The rupture caused by unilateral substantial change in working contract terms is attributable to the author of the amendment.
Article 12. If there is a change in the legal situation of the employer, including through succession, sale, merger, transformation of business assets or incorporation, concessioning, renting out, all contracts ongoing work on the day of the change, still exist between the new employer and the company's staff.
Their contract may be terminated only in the forms and conditions provided for in Section 3 of this chapter.
The cessation of business activity, except in cases of force majeure, does not relieve the employer to comply with the rules established in Article 24 of this Code. Bankruptcy and liquidation are not considered force majeure.
The parties may not waive in advance any right to claim damages under the above provisions. SECTION 2
From the suspension of the employment contract
Article 13. No employer may terminate the employment contract while it is suspended.
The contract is suspended:
In case of closure of the establishment by the departure of the employer or the colors for a mandatory period of military instruction.
During the period of military service and the worker during periods of military training which he is required.
During the period of absence of the worker in case of duly certified illness by a doctor of a medical service or inter-company business or, failing that, a licensed physician, which duration is limited to six (06) month. After this period, the employer may terminate the employment contract, but must pay all workers' rights, including the notice. 8
During the absence of the mother or the father may, within two (02) months, in case of illness or hospitalization of a child within the meaning of the Social Security Code subject to presentation of a medical certificate justifying the mandatory presence of the mother or the father eventually. After this two-month period, the employer may terminate the employment contract, but must pay all workers' rights, including the notice.
If the worker participation in a national or international sporting event, duly certified by the Ministry of Sport or territorially competent divisions. The period of preparation (internship or training) of national or international competition between included in the contract suspension period. For qualified top athletes, as provided by the provisions of the Act on the organization and promotion of physical and sports activities are implemented by the conclusion of agreements between the Ministry of Sport and public or private bodies concerned.
During the absence of the worker called for election. In this case, the suspension of the employment contract does not exceed a term. After this period, the employer may terminate the employment contract, but must pay all workers' rights, including the notice.
If layoffs development workers, duration limited to six (06) months. However, the worker may terminate the contract without notice after three months. The layoff is defined as any collective work stoppage resulting from cyclical or accidental causes such as accidents to materials, an interruption of the driving force, a disaster, accidental shortage of raw materials, equipment and means of transport . The layoffs ceases the disappearance of or the reasons given by the employer. After the period of six months, the contract is considered broken and the employer must pay the worker's rights, including notice and severance pay.
8. During the period of consecutive work stoppage in a work accident or occupational disease.
9. During the period of a lawful strike.
9-10 In case of job requisition under the law.
11-During the period of preventive detention of the worker who received a court order of dismissal, discharge or outright acquittal or for the benefit of the doubt. The reinstatement of the worker, in this case, mandatory. If detention is extended beyond 14 months, the employer may terminate the employment contract, but must pay all workers' rights, including the notice.
Article 14. In the first five cases mentioned in the previous article, the employer is required to pay the worker for the duration of the suspension, an allowance called "suspension allowance" equal to the amount of its compensation, a limit of one (01) months, if the normal period of notice is less than this period and the normal limit of notice in other cases.
A Decree of the Council of Government after consulting the National Labour Council will determine the conditions and tenure status.
Article 15. Workers with a long term illness whose treatment requires a period of absence from work for more than six (06) months, after consulting the doctor approved, the list of which is set by Joint decree of the Minister of Labour and Minister of Health, receive an allowance of the terms and conditions determined by the Social Protection Code and its implementing regulations. SECTION 3
From breaking Article 16.- The labor contract labor contract is broken for four (04) causes:
due to the employer, by dismissal; the fact of the worker, by resignation; by agreement of wills of the parties; in cases of force majeure at the discretion of competent jurisdiction
Article 17. The fixed-term employment contract may cease prematurely by the will of one of the parties in the cases specified in the contract and in cases of gross negligence provided in the Rules or, failing that, at the discretion of the competent court.
Article 18.- The permanent contract may stop by the will of 10
either party. This termination is subject to a notice given by the party that takes the initiative in the termination.
The rupture of a permanent contract can be terminated without notice in case of gross negligence provided in the rules or, failing that, at the discretion of the competent court.
Except in cases of gross negligence, breach of contract of indeterminate duration without notice or the notice period has been fully observed, constitute an obligation for the party responsible for failure to pay the other party an indemnity the amount corresponding to the remuneration and benefits of any kind allegedly received by the worker during the period of notice that has not been effectively implemented.
Article 19. In the absence of collective agreement, a decree issued after consultation of the National Council of Labor determines the conditions and the period of notice and the rights and obligations of both parties on notice.
During the notice period, the employer must issue the worker, on the date of notification of the break, a temporary certificate of employment under penalty of damages.
Article 20.- The break is abusive when performed without legitimate reason, without real and serious cause.
Particularly unfair dismissal:
not comply with procedures defined by the Code, the collective agreement and the internal regulations;
Made without valid business reasons or bound spurious grounds;
Motivated by the worker's opinions or membership in a union.
Addition to the cases cited above, it is for the court to assess the unfairness of the dismissal or not.
Any abusive breach of employment contract may give rise to damages at the discretion of the competent court. It belongs to the author of the break to establish that it is legitimate.
Article 21. The party takes the initiative to terminate the employment contract must notify the other party a written decision with reasons on 11
which it is based and transmit all supporting means thereto.
The date of receipt of the dismissal or resignation sets the starting point of the notice.
Is inadmissible any presentation of new ground breaking after the date of notification.
Article 22. The employer intending to dismiss a worker, in the absence of a Board of Discipline within the company, must respect the right to defend it, especially through information applicant's prior written on the reasons for dismissal, by the communication of allegations of file if it so requests and the presentation of his defense and assistance by a person of his choice.
The dismissal must be notified in writing entitles the worker:
to pay the balance to the company start date; pay in lieu of unused leave before the break; a notice calculated in accordance with provisions in force, except
in cases of gross misconduct; the issuance of a work certificate.
The employer is required to adjust the rights referred to in paragraph 2 above upon termination of employment.
The employee may freely resign. However, he must indicate the reason for its decision and to first make the award if the employer requires.
Article 23. Any breach of the employment contract due to sexual harassment or is attributable to the portion perpetrator. It is for the applicant to provide evidence of the act by all means.
The break because of sexual or moral harassment can lead to the victim of the damages fixed by the competent court at the expense of the perpetrator.
Article 24. The dismissal for economic reasons is a dismissal caused by economic difficulties or technological changes. It can be collective or individual.
12 Article 25.- The economic redundancies must follow the procedure below:
The employer must first consult the Works Council and / or failing that, the staff delegates on the proposed measure and provide all the information on the reasons, the financial position of the company, the proposed recovery plan, the list of persons involved in professional category, priority for re-employment and the evolution of employment in the company.
A report is prepared following the meeting which thereafter the display object for the company staff.
Within twenty (20) days, the Works Council and / or the staff delegates decide on the proposed measure and give their opinion.
The Labour Inspector is necessarily seized at the instance of the employer must attach to his request, the consultation of the minutes containing the Committee's opinion of Company and / or staff representatives and the list the staff affected by the compression and all other necessary parts. It shall deliver its opinion within fifteen days of the referral.
Absence of the Works or staff representatives, the Labour Inspector must be consulted on the initiative of the employer on the proposed measure. It shall deliver its opinion within fifteen days of the referral.
Article 26. The list of staff affected by the compression must be established by the employer in consultation with staff representatives. It must respect, by professional category, a dismissal order conformity with the provisions of the social plan agreed on this matter in the context of collective agreements or, failing that, taking into account:
of seniority in the company; professional values, technical skills and professional awareness
In case of disagreement of the two parties on the list of staff affected by the proposed measure, the Inspector of Labour decided in application of these criteria within fifteen days of its submission.
13 After this time, the silence of the Labour Inspector is approval of the list.
Article 27.- The economic difficulties and technological change may also lead to substantial amendments of the individual contract resulting either by dismissal or by mutation.
Individual dismissal for economic reasons following the dismissal procedure provided for in Articles 21 and 22 of this Code.
The substantial modification of the clauses of the contract for economic reasons complies with the following procedures:
changes are notified in writing to the employee concerned at the behest of the employer;
The worker must give its opinion within a period of fifteen (15) days from the date of receipt of the notification letter. Thereafter
silent worker implies acceptance of innovations to the contract. It is the same whether the worker has expressed to time its willingness to accept changes;
Breach of contract is attributable to the employer if the worker refuses the proposed innovations and it enjoys the rights granted to workers dismissed for economic reasons.
Article 28. Unless more favorable provisions in individual contracts or collective agreements, any worker laid off for economic reasons or for business activity cessation benefits from severance pay calculated at ten days' wages per full year of service, but the total may not exceed six (06) months salary.
This benefit, calculated on the basis of the last salary upon termination given all benefits and accessories that do not have the expense reimbursement character, not to be confused with the severance pay, nor with 'compensation in lieu of paid leave, nor with the damages for wrongful dismissal.
Article 29.- The privilege established by Articles 68 and following of this Act extends to the benefits provided for in Article 29, in lieu of notice as well as damages under Article 17 .
14 Article 30.- the employer must, upon termination of the employment contract, issue to the worker, under penalty of damages, a work certificate stating exclusively the date of entry, the his departure, the nature of the job or jobs held successively, the periods in which these jobs were held and the corresponding occupational categories.
During the notice period, provisional certificate of employment provided for in Article 18, paragraph 2, including the statements under paragraph above, shall be provided to under penalty of damages worker.
The certificate and the certificate shall be free from stamp duty and registration.
CONTRACT SPECIFIC CATEGORIES SECTION 1 From learning
Article 31.- The apprenticeship contract is one in which a head of industrial, commercial or agricultural, an artisan or a subcontractor or person carrying on a profession agrees to give or to give a methodical and thorough professional training to another person, called apprentice and by which it undertakes, in return, to comply with the instructions it receives and to execute the works entrusted to him for learning.
The contract must be in writing to be valid.
It is signed by the teacher and the parents or guardian of the apprentice or their representatives if the apprentice is a minor, the apprentice, if it is major.
The contract is free from stamp duty and registration.
Article 32. No employer may hire an apprentice after visa of the apprenticeship contract by the Inspector of the spring work.
15 A Decree issued after the National Council of permanent employment: the conditions for granting and withdrawing accreditation; the substantive conditions, form and effect of learning
contract; cases and consequences of termination; the percentage of apprentices admitted by the total number of workers
Article 33.- The employer undertakes to follow the apprentice practical training by entrusting particular tasks and workstations for the execution of operations or work, object of learning. The apprentice therefore act as attendant. If necessary, this training can be provided by a training center approved by the state.
In this case, the time spent by the apprentice to the teachings and educational activities of the center is considered as working time.
Article 34 .- The apprenticeship contract contains the conditions of remuneration of board and lodging of the apprentice.
It is forbidden for apprentices under eighteen (18) years of overtime. SECTION 2
From Commitment to test
Article 35.- The commitment or renewal of probationary appointment must be stipulated in writing specifying at least the vacancy, duration, salary and professional category.
So, in any contract for a fixed or indefinite period, non stipulated in writing test is deemed nonexistent.
Article 36. - The probationary employment contract may not exceed six (06) months. It is renewable once.
The course entering a vocational training cycle can be likened to a test. However, it may be carried out simultaneously with the assay.
Article 37.- A decree issued after the National Labour Board determines the form and manner of the test of agreement and the duration of the test.
Article 38.- The test hired workers have the same 16
working conditions and social protection that workers confirmed the same position.
Article 39 .- The provisions of Articles 10, 11, 15, 16 and 18 of this Code do not apply to the probationary appointment, unless otherwise agreed and without one or the other party may claim compensation.
The probationary employment contract is suspended for the duration of absence from sickness worker duly certified by a licensed physician, limited duration of the trial period remaining. During the period of suspension, the employer must pay the worker within the limit of one (01) months compensation equal to the amount of his remuneration.
At the expiration of the suspension, the commitment to the test is extended for a period corresponding to the duration of the test was left to run before the suspension.
Article 40.- The Labour Inspector is empowered to determine any abuses in the area of the test. SECTION 3
Displaced Workers Article 41.- The displaced worker is one who, for the fulfillment of the agreed work is called to settle sustainably in a workplace other than his habitual residence or outside its country of origin.
Upon its conclusion, the employment contract of the displaced worker shall, after recruitment medical examination of it, be evidenced in writing and submitted to the prior approval of the Labour Inspectorate of the place of employment . A copy of the contract referred must be sent to Service of Employment of the place of employment.
The contract should specify that the housing and the cost of return of the displaced worker and his family members are at the employer's expense within the limits established by a Decree issued after the National Labour Council.
Return transport costs should be insured by the employer in case of dismissal whatever the reason for the mentioned rupture.
Article 42.- The labor contract emigrants Malagasy workers outside the territory should be subject to a prior approval of the Department of the
17 Migration of the Ministry of Employment .
It is to include these workers are subject to labor laws and social security of the place of employment.
Any visa application of the displaced worker labor contract rests with the employer.
The forms and methods of establishment and the labor contract of the visa and the rights of the displaced worker are set by order of the Minister for Employment.
A decree of the Minister of Labour specifies the working model contract and the contract of the visa procedure.
Article 43. Foreigners can not hold any job in Madagascar without prior approval of the Minister of Employment, after approval of their contracts by the Labour Inspector of the place of employment. A decree issued after the National Labour Council determines the procedure for granting work permits of foreign workers. SECTION 4
temporary worker Article 44 .- Is considered temporary worker, any worker hired to temporarily replace an incumbent to a position during the period of absence of the latter not exceeding one (01) year . Acting conditions are set on agreed subject to the minimum provisions laid down by law.
After the period of one (01) year, the interim was confirmed to the post.
The interim assured by a staff member shall not exceed six (06) months. After this time, the interim was confirmed to the post. SECTION 5
part-time work Article 45.- is considered part-time employee, the employee whose working week is less than the legal term for the same period. SECTION 6
18 Article 46.- is regarded as a day laborer, while intermittently worker hired to work daily. SECTION 7
homeworker Article 47.- The homeworker is a worker for the purposes of this Code who performs work in accordance with the instructions of his employer in a place or premises of his choice but n ' not belonging to the latter.
In determining the status of home workers, there is no place to look:
there exists between the worker and the work provider a legal subordination;
If he works under the direct and regular monitoring of the work provider;
If the room where the men work and materials he uses them not;
If it gives itself the necessary supplies.
Article 48.- The homeworker using the assistance of a helper, even at family basis, is responsible for applying to it the legislative and regulatory provisions applicable to employees.
The work provider is not jointly liable for the application of laws and regulations in force to an auxiliary, even family member, in which the home worker resorted. In this case, the home worker is himself an employer.
Article 49.- The labor contract between the developer donor to the homeworker must be stipulated in writing.
The home worker enjoys, like the worker in business, legal and regulatory provisions applicable to employees in terms of working conditions and social protection.
19 SECTION 8 From outsourcing
Article 50.- The contractor is a natural or legal person who goes with a company, a written contract for the execution of some work or the provision of certain services for a fixed price. It recruits itself manpower necessary for the performance of work.
Article 51.- When a contractor enters into a contract for the execution of some work or the provision of services with a subcontractor and that he is not registered in the commercial register or register trades, the entrepreneur, in case of insolvency of the contractor, is substituted for the latter to settle the rights of workers that it employs, as well as paying for payroll taxes.
The injured employee and stakeholder organizations have, in case of insolvency of the contractor, a direct action before the labor court against the entrepreneur for whom work has been completed.
The contractor is required to post the name and address of the person from whom he work in its workshops, stores or sites. SECTION 9
seasonal worker Article 52. Is considered as a seasonal worker, any worker hired for the time necessary for performing seasonal work in nature.
The seasonal worker may be engaged cyclically by an employer, without any claim, unless the parties agree, the law of the scheduled day laborer in Article 9 of this Act.
However, the seasonal worker has a seasonal hiring priority after three regular engagements with the same employer.
20 TITLE III
WORKING CONDITIONS CHAPTER I
SALARY SECTION 1 In determining the salary
Article 53.- At the same professional qualifications, same job and work of equal value, the wage is equal to all workers regardless of their origin, color, national origin, gender, age, union membership, their views and their status in accordance with this chapter.
For workers on a construction site in a remote and isolated place, the employer must provide or, failing that, to facilitate the acquisition of basic commodities and a decent home for her and eventually , his family.
In addition, workers are likely to assignment, it is for the parties to comply with the provisions of the contracts signed between them and the current legislation regarding: the
supported for the transport of persons and luggage; the benefits to be granted based on the category of workers concerned
Article 54.- The salary being the consideration of the work, no salary is due in case of absence, except in cases provided by regulation and unless agreed in writing between the parties.
Article 55. There shall be a wage agricultural and non-agricultural Minimum Hiring (EMS) taking into account the vital minimum for workers ensuring sufficient purchasing power.
A Decree issued after the National Labour Council, sets minimum wages by hiring professional category and revised periodically to reflect changes in the nation accounts, economic conditions and consumer prices .
A Decree issued after the National Labour Council fixed indices, the value of the index point and minimum wages and job seniority
21 occupational categories applicable in the agriculture and non-agricultural.
Article 56.- Workers paid by the hour or day are appointed after at least six (06) months of continuous service with the same company.
Article 57.- The remuneration of piecework, parts or performance must be calculated so that it gives the average capacity of worker and working normally a wage at least equal to that paid worker time performing similar work.
The determination of this remuneration is made under the arbitration of the Labour Inspector by regional or local commissions composed of two (02) employers in the profession and two (02) workers nominated by trade unions .
The minimum rates of wages and conditions of labor remuneration to the task, parts or performance are displayed at the offices of employers and staff payroll places.
In all cases, the minimum salary of his professional category should at least be guaranteed the paid worker to the task, parts or performance.
Article 58.- Setting objectives or "targets" and quota within the jurisdiction of the joint arbitration commission in free zones or undertakings concerned.
Article 59.- Where remuneration consists in whole or in part by commissions or bonuses or various benefits or representative allowances of these benefits, insofar as they do not constitute a reimbursement of expenses, it is given for the calculation of remuneration for the period of paid leave, termination pay, termination pay, damages.
The amount to be considered as such is the monthly average of the items in the preceding paragraph.
However, the period on which this calculation does not exceed twelve (12) months of service preceding the cessation of work.
Article 60. Any worker who, after training or competition, access to a higher professional level position, retain seniority and at least
22, compensation already received in the workplace.
Article 61. All monies received by the employer under "service" must be fully paid to staff.
If the services are for the employee, the single payment, the minimum wage of his professional category, however, must it be guaranteed. SECTION 2
Article 62. Payment of salary, wages must be fully paid in Madagascar in legal tender.
Is prohibited the payment of wages in alcohol or alcoholic beverage. Payment of wages in kind is allowed only if the employer would be required to provide workers with accommodation and food.
Article 63.- The pay is made at regular intervals during work hours and, except in cases of force majeure, the workplace or the employer's office when neighbor workplace.
The wages of every worker, whatever his method of compensation must be paid at regular intervals not exceeding eight (08) days for workers engaged by the day or week or twenty (20) days for workers engaged in a fortnight.
The monthly payments should be made no later than eight days after the end of employment conferring the right to salary.
Payment delays must be justified by force majeure.
Unjustified delays of payment of wages lead to increase according to the legal interest rate in force.
A decree of the Minister of Labour and fixed forms of wage payment modalities.
Article 64.- The salary payment must be evidenced by the issuing of a manual or computerized payslips drawn up by the employer or his representative, and ticked off by each worker concerned or by two witnesses if he is illiterate . It can also be found by a bank document or computer or a counterfoil book is numbered and initialed.
23 The texture of the pay slip is fixed by decree of the Minister of Labour.
Is opposable to mention worker "for final settlement" or any other statement signed by him, either during the execution, or after termination of his employment contract and the worker waives all or part of his rights under his employment contract.
The acceptance without protest or reservation by the worker of a pay slip can not argue waiver of the payment of all or part of the salary, allowances and salary accessories due to it under the provisions legislative, regulatory or contractual. It can not argue either has stopped or adjusted.
Article 65. Any agreement or transaction entered into between the employer and the worker may mean for the latter waiver of rights under the laws and regulations. SECTION 3
From the guarantee and protection of wages
Article 66.- The amounts owed to employers may be struck garnishment, or opposition to the detriment of workers to whom wages are due.
The amounts due to contractors of any work having the character of public works can not be struck by garnishment or opposition to injury or workers wages that are due or suppliers that are creditors because of supply materials and other items used in the construction works.
Article 67.- The wage debt of employees and apprentices is privileged to movable and immovable of the debtor in accordance with the laws in force.
Article 68.- The worker holder of the object worked by him may exercise the right of retention as provided by the regulations in force.
Article 69.- Apart from compulsory contributions fixed by the regulations in force and special advances from the worker, it can be made deductions from salaries or wages of workers by garnishment or voluntary assignment in accordance with
24 provisions of the Code of Civil Procedure.
The assignment of remuneration referred to in paragraph above may not be granted, regardless of the amount, by declaration by the seller in person before the presiding judge of his home.
The special advances by the worker must be written drawn up at least in duplicate and that is copied to the Inspector of the spring work.
However when the seat of the court or inspection is away from home most of the transferor of 20 km, the statement can be received by the head of the administrative unit of this place.
For cons, the amounts paid as deposit employee are used automatically from wages.
Article 70.- The provisions of an agreement or a contract authorizing other levies are null and void.
The amounts deducted to the worker contrary to the provisions above shall bear interest for its benefit at the statutory rate from the date they should have been paid, and can be claimed by him until prescription, the current being suspended for the duration of the contract.
Article 71. No compensation shall be effected for the benefit of the employer between the amount of wages owed by them to their employees and their amounts are due to themselves for various supplies of any kind whatsoever except:
the case provided for in Article 74 of this Act, the commissary; the tools and instruments to work; equipment or materials the employee is responsible and use; the amounts advanced for the acquisition of these objects;
For the last three cases cited above, the compensation can be done when the worker's responsibility is established before the competent court.
Article 72.- Notwithstanding the provisions of Article 387 of Law No. 66-003 of 2 July 1966 on the General Theory of Obligations, the action for payment of wages and salaries as well as accessories notice and dismissal indemnities within twelve (12) months.
25 Article 73.- The sums due to workers as wages are paid in preference to those owed to suppliers.
The workers' claims have a lien ranking in priority those of the state and social security.
Following may also assert a direct action or special privileges as provided by the regulations in force:
masons, carpenters and other workers employed to build, rebuild or repair buildings, canals or other any books ;
Workers who worked on the harvest, manufacture, repair farm implements or the preservation of the thing;
3- auxiliary employees of homeworkers.
In case of bankruptcy or liquidation of assets, payments of any kind due to employees and apprentices for sixty (60) days of work or learning need, net of installments already received, be paid, notwithstanding the existence of any other preferred claim, up to a monthly ceiling identical for all categories of beneficiaries.
This ceiling is set by regulation.
In addition, in case of judicial settlement or liquidation of assets, paid leave benefits are payable notwithstanding the existence of any other senior debt. SECTION 4
From the commissary Article 74.- is considered commissary, an organization established in the area of the company where the employer or association of practical workers, directly or indirectly, the sale or sale of goods at work for personal and normal needs.
A decree of the Minister of Labour sets the conditions for opening, operating and closing of commissaries.
CHAPTER II HOURS OF WORK, REST AND LEAVE
26 SECTION 1 From working hours
Article 75.- Subject to paragraph 2 below in all institutions subject to the Labour Code, even educational or charity, the legal working hours of employees or workers of a either sex, of any age, working time, task or piece can not exceed seventy three point thirty three (173.33) hours per month.
In all agricultural enterprises, working hours are based on two thousand two hundred (2200) hours per year. In this limit the working time is fixed by an Order which also determines the overtime rules and the terms of their remuneration.
Hours worked beyond the statutory working hours are overtime that result in an increase.
Article 76. The Decrees issued after the National Labour Council identified by business and professional category branch, if any, the mode of application of the working time and exceptions, the nature and the maximum duration of overtime that can be performed with or without prior authorization, the rate of increase overtime.
Article 77.- The application of the preceding article shall not affect the customs and collective labor agreements that would set lower limits.
Article 78. Either because of the nature of work, either because of its intermittent nature, this Labour Code recognizes equivalence, that is to say, an attendance period considered as corresponding to a actual work of a shorter duration.
Article 79.- The equivalence plays in overtime, hours of night work, Sundays and public holidays.
The categories of employment and hours equivalency thereto in the different branches of activities are determined by a Decree issued after the National Labour Council.
The hours of work means the actual work. The time required for dressing, undressing and restoration are not included in the calculation of 27
The time required for the break are determined through negotiated arrangements. SECTION 2
weekly rest and public holidays Article 80.- The weekly rest period is mandatory. There is a minimum of twenty-four (24) consecutive hours. It takes place in principle on Sunday.
A Decree issued after the National Labour Council shall determine the rules for the application of the preceding paragraph, including the occupations for which the weekly rest period may be exceptionally for clearly established reasons, more than twenty four (24) hours or given by or collectively working days other than Sunday or suspended by clearing ritual festivals or be distributed over a period longer than the week.
Article 81.- The holidays are observed and paid.
A Decree issued after the National Labour Council fixed the mode of application of the preceding paragraph.
The annual list limited days "bridges" and the holidays are subject to a Decree issued earlier this year, after consulting the National Labour Council.
Article 82.- A decree issued after the National Labour Council determines by industry and by occupational category, if applicable, the rate of increase Sunday work and holidays. SECTION 3
night work Article 83.- The work between twenty-two (22) hours and five (05) hours is considered night work.
The hours worked between this interval lead to increases fixed by a Decree issued after the National Labour Council.
Article 84.- The employer is required to provide transportation and security staff working at night.
28 A Decree issued after the National Labour Council shall determine the procedures for implementing the preceding paragraph.
Article 85.- Night work of women in industry must comply with the provisions of this Act.
Women without distinction of age shall not be employed during the night in any industrial undertaking of any nature whatsoever, whether public or private, secular or religious, or in any one of these institutions even when these establishments have a professional teaching or charitable character, with the exception of establishments where only employees are members of the same family.
For the purposes of this section, the term industrial undertaking:
Mines, quarries, mining of all types; the industries in which articles are manufactured, altered, cleaned
, repaired, ornamented, finished, for sale or in which materials are transformed; including shipbuilding, equipment demolition industries, and the production, processing and transmission of the motive power and electricity;
Construction, reconstruction, maintenance and repair, alteration or demolition of any building, railway, tramway, harbor, dock, pier, canal, facilities for inland waterways, roads, tunnels , bridges, viaducts, sewer, drain, well, telegraphic or telephonic installation, electrical, gas plants, water supply or other construction work, and the work of preparation and foundations of any such work .
The above prohibition shall not apply:
in case of force majeure, when in the company produced an impossible business interruption to predict and not of a recurring character;
If the work has to do with raw materials or materials in course of treatment which are subject to rapid deterioration, when necessary to save materials from certain loss.
29 In no case, pregnant women found medically should be used at night until eight (08) weeks of delivery.
The daily rest women and children should have a period of twelve (12) consecutive hours.
SECTION 4 Time off and transport
Article 86.- Unless more favorable provisions in collective agreements or individual contracts of employment, the worker becomes entitled to paid leave at the expense of the employer, for two and a half days (02.5 days) per calendar month of actual service.
The right is prescribed three (03) years. It is up to the employer to plan the departure of workers on leave earlier this year to prevent the accumulation of remainders.
Article 87.- shall be treated as one (01) months of actual service, periods equivalent to four (04) weeks or twenty four (24) working days.
Shall be treated as an actual service and can not be deducted from the period of leave granted:
regular sick leave to a maximum of six (06) months;
Regular absences for accidents and occupational diseases;
Rest periods of the woman layer as provided in section 97 of this Act;
Exceptional permissions granted to workers on the occasion of family events within the limit of ten (10) days a year, unless more favorable provisions of collective agreements;
Periods of paid leave; the permissions set out provisions relating to congestion
education of this Act; absences employed woman or possibly the father, if
hospitalization of a child under the Social Protection Code.
Article 88 .- The right to use the leave is acquired after twelve (12) month of actual service.
Only 30 can be split off the top two (02) weeks.
The enjoyment of the first fraction of fifteen (15) days is required within three (03) months following the opening of entitlement to the extent of need service heard between the two parties.
The second fraction can be on agreed, be taken before the end of the year or accumulated three (03) years.
If the parties agree, leave entitlements of three (03) years prior to retirement may be combined and exercised before the date of departure.
The start date and end of leave must be determined in advance by the parties. The leave begins on the day the worker should have worked if it were not on leave and ends before his recovery service.
In institutions where the periodic closure for leave is not fixed, the time when the leave is taken is determined by the employer after consultation with the worker.
Article 89 .- The employer must pay the worker for the duration of the leave, a benefit that is at least equal to one twelfth (1/12) of salaries and various remuneration elements defined by this Code, the worker enjoyed during the twelve (12) months preceding the date of leave except for reimbursement of expenses.
This allowance shall be paid to the worker before his departure on leave, unless he has agreed otherwise in writing between the employer and the worker.
Article 90.- In case of termination or expiration of the contract before the worker has exercised his right to leave an allowance on the basis of acquired rights must be given the place and stead of the leave.
Apart from these cases is null and void any agreement providing for an indemnity to the place and stead of the leave.
Article 91.- When the execution of the employment contract causing or has caused the displacement of the worker's place of residence at the time of the commitment, the travel costs of the worker, his spouse and minor children usually living with him, is the employer's expense in cases and on terms that are set by decree issued after the 31
National Labour Council.
In the case provided for in section above and unless otherwise agreed, the travel time may not exceed the time necessary for the worker to go on leave instead of his habitual residence and back.
Article 92.- When the workplace is outside of the city more than five (05) kilometers, the employer will take the most appropriate measures to ensure the transport of personnel. Otherwise, the worker will receive compensation, the amount is at most equal to the costs of transport to and applied on site.
CHAPTER III SPECIAL
WORKING CONDITIONS OF CERTAIN CATEGORIES OF WORKERS
Work of Women Article 93. The Decrees issued after the National Labour Council laid down the nature of work prohibited women and pregnant women.
Article 94.- An employment female candidate is not required to declare her pregnancy.
The state of pregnancy should not be considered to terminate an employment contract during the trial period.
Article 95. - No employer may terminate the employment contract of an employee where she has been medically certified pregnancy.
However, the agreement may be terminated if the woman commits misconduct not related to her pregnancy.
The preceding paragraphs do not prevent the expiry of the employment contract of limited duration.
Article 96.- The pregnant woman whose pregnancy is recognized may request a transfer to another workstation on doctor's prescription of inter-company medical service or business or, failing that, a licensed physician .
During the mutation, wage and salary elements
32 character sets are stored.
Article 97. - Any pregnant woman whose inability to work is proven by the doctor's inter-company medical service or business or if an authorized doctor may break his contract without notice and without thereby to pay compensation for breach of contract.
On the occasion of his birth and without this interruption of service can be considered a cause of breach of contract, every woman has the right to suspend work for fourteen (14) consecutive weeks, eight (08) weeks subsequent to the issuance. This suspension may be extended for three (03) weeks in the event of duly certified illness resulting from pregnancy or confinement.
During this period, the employer can not give him leave.
It has the right during this period, the responsibility of the National Social Insurance Fund or, failing that, at the expense of the employer, to reimbursement of birth expenses and if necessary, medical care, within the limits of rates of health facilities, as well as half (1/2) of the salary she was receiving at the time of suspension of work; it retains the right to benefits in kind.
The employer is required to pay half (1/2) of the salary is not paid by the National Social Insurance Fund. A Affiliate default, the payment of full wages is the responsibility of the employer.
Article 98.- During a period of fifteen (15) months from the birth of the child, the mother has the right to rest for breastfeeding.
The total duration of the rest, which are paid as working time may not exceed one hour (01) per working day.
The mother may, during that period, terminate his contract without notice and without thereby paying a termination fee.
Article 99. - The Inspector of Labour may require the examination of women by a licensed physician, to verify whether the work they are responsible does not exceed their strength. This requirement is to grant the request of the applicant.
The woman can not be kept in a job well recognized over its forces and must be assigned to suitable employment. If this is not
33 possible, the contract can be terminated with payment in lieu of notice. SECTION 2
child labor Article 100.- The legal minimum age for employment is fifteen (15) years throughout the territory of Madagascar. This minimum age should not be less than the age of completion of compulsory schooling.
The Decrees issued after the National Labour Council laid down the nature of work prohibited to children.
Article 101.- In facilities subject to this Act, minors and apprentices aged under eighteen (18) years of one or the other sex can not be employed in effective work over eight (08) hours per day and forty (40) hours per week.
The night work and overtime are prohibited for children under the age of eighteen (18) years.
A daily rest period of twelve (12) consecutive hours is mandatory for child workers.
Article 102.- Children may not be employed in any enterprise, even as apprentices, before the age of fifteen (15) years without the permission of the Labour Inspector, taking into account local circumstances, tasks that may be required of them and to the condition that the work is not harmful to their health and normal development.
Article 103.- The Inspector of Labour may require the examination of children by a licensed physician, to verify whether the work they are not beyond their strength.
This requirement is to grant the request of the person concerned.
The child may be kept in a job well recognized over its forces and must be assigned to suitable employment. Where applicable, the contract can be terminated with payment in lieu of notice.
In all cases, children and adolescents shall not be admitted to employment only after a medical examination. SECTION 3
34 People with disabilities
Article 104.- The term "disabled person" means any person whose prospects of finding and maintaining suitable employment and to progress professionally are substantially reduced due to physical, mental or sensory duly recognized.
Article 105.- No discrimination can be made for work or employment on equal ability and aptitude between able-bodied and disabled people because of their disability. Disabled people have the right to work and employment, equality of opportunity and treat ment for learning, vocational training and employment.
Article 106 - Persons with disabilities must enjoy all existing infrastructure, whether public or private, for learning and training.
Article 107. Any company that hired a number of disability benefits from incentives established by Decree issued after the National Labour Council.
Article 108. - It is created with the Ministry of Labour, an institution responsible for ensuring the vocational rehabilitation of disabled persons.
Article 109.- A Decree issued after the National Labour Council shall determine the responsibilities, organization and functioning of the institution.
PART IV HEALTH CONDITIONS, SAFETY AND ENVIRONMENT OF
LABOUR CHAPTER I GENERAL DIVISION 1
General Discipline Article 110.- It is prescribed for any employer to provide equipment and adequate clothing to protect collective and individual life and health of workers against all risks at the workplace and in particular against HIV / AIDS in the workplace.
35 Article 111.- The workers must pass all of the required health and safety measures.
SECTION 2 Cleaning and general cleanliness
Article 112.- Workplaces must be kept clean and present conditions of hygiene and safety required for the health of staff.
SECTION 3 atmosphere, heating, lighting of workplaces
Article 113.- The atmosphere of the workplace must be protected against dangerous and obnoxious fumes, vapors, gases, dusts, fumes, without this list being limiting.
Article 114. - The general atmosphere and the workplace environment should consider physical comfort, mental and social workers.
SECTION 4 Individual installation of
Article 115. Workers - Workers must have at their disposal drinking water, sanitation and adequate changing rooms and other furniture necessary for their comfort during the work period . SECTION 5
From the canteen Article 116. The establishment of a canteen for the benefit of workers is the responsibility of the employer:
for remote settlements to more than five kilometers from the center city not served by regular means of public transport or when the location of the establishment or work organization does not allow workers to eat normally;
For institutions using the system of continuous hours.
Article 117.- The canteen should be kept in a clean state. Likewise, it must have the conditions of comfort and adequate ventilation for 36
such workers to restore sitting.
Article 118.- The food workers must be in sufficient quantity and of good quality, presenting the hygiene and cleanliness required.
Article 119. A decree issued after the National Labour Council specifies the terms of application of this section, including the number of workers from which the establishment of a canteen is indicated, standards on food to serve the workers, and the right of the employer to make deductions from wages under restoration.
CHAPTER II PROTECTION AGAINST CERTAIN RISKS RELATED TO WORK
Article 120.- To prevent the risk of accidents, facilities, equipment and working materials are subject to mandatory safety standards. They should be subject to monitoring, maintenance and systematic verification.
Article 121. - It is forbidden to sleep in the workshops workers assigned to industrial use.
The VOR night guards must have a proper shelter.
The premises for the sleeping workers must have proper air space and be maintained in a clean condition and ventilation.
Article 122.- Every business must take the necessary measures so that any outbreak of fire can be quickly and effectively combated.
Article 123.- The employer must inform and train workers about safety and health measures related to workstation.
37 CHAPTER III ENVIRONMENTAL WORK
Article 124. The employer must consider measures to protect the environment, whether in the physical environment or geographical. To this end, the course of operating businesses must gradually adjust to national guidelines and management standards of the environment in accordance with the laws and regulations in force.
Article 125. - Depending on their size and capacity, it is desirable that the companies build the relaxation areas.
Article 126.- It is recommended that the company engages in activities such as sanitation rat removal, clearing, insect.
Article 127. - The employer is required to maintain or to maintain a motivating work environment.
CHAPTER IV OCCUPATIONAL
Article 128.- The medical service work aims to prevent any deterioration of the health of workers due to their work, especially to monitor the hygiene and safety in the workplace. Its role is primarily preventive.
Article 129.- The occupational health service is a medical service company for work or medical service establishment work or medical service intercompany work or inter-institution, as provided by the implementing legislation . Any deviation will be defined by regulation.
Article 130.- Every natural or legal person performing an activity of any nature whatsoever and employing one or more employees is required to ensure the health and medical services as defined in Article 128 above.
For voluntary contribution, the self-employed and the professions may receive benefits from the occupational health service to their geographical area.
CHAPTER V BODIES OF CONSULTATION AND CONTROL Article 131.-
is hereby established within the Ministry of Labour a Technical Advisory Committee whose tasks:
technical study of questions concerning health at work ; organizing the training of workers against risks
professionals; follow the recommendations of the National
Orientation Board of Social Protection.
Article 132.- The Works Council under section 159 of this Act shall ensure the application of the rules on hygiene, safety and the environment.
Article 133.- The technical control of the provisions of this Title reports to the Medical Inspector of the national and regional work, which is entitled to bring the Labour Inspector of the spring to apply the notice if necessary East.
CHAPTER VI MISCELLANEOUS PROVISIONS Article 134.- Before the workers can be employed, any institution must meet the standards of hygiene, safety and environment governing the industry.
Article 135.- It is created an interministerial commission to monitor the hygiene, safety and environment before the opening of the facility and to advise on compliance with hygiene standards safety and environment.
A Decree issued after the National Labour Council determines the organization and functioning of the commission and the departments to be represented there.
A decree of the Minister of Labour appoints the members of the Committee on the proposal of the departments concerned.
39 TITLE V RELATIONS
CHAPTER I WORKERS 'AND EMPLOYERS
Article 136.- The right to organize is recognized in respect of rights and freedoms guaranteed by the Constitution .
The union is an organization of workers or of employers for furthering and defending the interests of workers or employers. The objective of the trade union movement is the economic and social progress of its members.
Article 137. - Workers and employers, without distinction whatsoever, have the right without prior authorization, to establish organizations of their choice, as well as to join these organizations, with the only condition to comply with the statutes of the latter, or not to join.
They are represented in their capacity of social partners in the dialogue structures, social policy management organizations and social funds and negotiation of agreements requiring the intervention of a regulatory act, the professional associations and the most representative trade union organizations. Representativeness is established by the evidence adduced by the concerned organizations and labor administration.
Article 138. Organizations of workers and employers have the right:
draw up their constitutions and rules, to elect their representatives, organize their administration and activities, to formulate their programs Action;
To establish federations and confederations and join. Any organization, federation or confederation shall have the right to affiliate with international organizations of workers or employers.
Article 139.- The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise.
In case of violation of the preceding paragraph, the Administrative Chamber of the Supreme Court has jurisdiction to hear the dispute relating thereto.
40 Article 140. - In the exercise of rights granted to them, workers, employers and their respective organizations to respect the law.
Article 141.- The workers are protected against acts of discrimination affecting the freedom of employment. It is forbidden to:
make the employment of a worker affiliation or cessation of its activities in a union;
Dismiss a worker or harm by other means, because of union membership or participation in union activities.
There is no employer to deduct union dues from the salaries of its staff and pay them the place and stead of it.
The leader of business or his representative shall use no leverage in favor of or against any trade union.
Any action by the employer, contrary to the provisions of the preceding paragraphs is considered null and void and results in damages to the benefit of the injured party.
Article 142.- The trade union organizations of the workers have the right to exercise their promotion and advocacy within companies.
Article 143. - Unions have legal personality. They have the right to sue. They can acquire without authorization, for free or for value of movable and, subject to applicable law, real property.
Are elusive, movables and real estate necessary for the functioning of trade unions.
A decree determines the conditions under which local regional constituencies put, according to their possibilities, local available to unions to hold their meetings.
Article 144. Joining a workers' union and a professional organization of employers is free. Any form of discrimination based on age, sex, religion, origin or nationality is excluded.
41 Article 145.- Within the company, a union branch can be created if it includes seven (07) members.
Article 146. Unions may, in all courts, including the Supreme Court, exercise all the rights reserved to the civil party in relation to acts causing direct or indirect harm to the interests of workers, employers or Organisation.
Article 147.- The unions, properly constituted according to the provisions of this Act, may concert in the study and defense of the interests of their members.
Article 148. Trade unions have the right to appoint representatives to:
attend statutory conferences and seminars of trade unions;
Participate in trainings organized by the International Labour Office;
Participate in international meetings in which they are invited.
Article 149.- Every employee organization may, as provided in section 142 of this Act, created within the company or establishment, a union branch that defends the individual interests and collective, material and moral of its members.
As part of its interventions, the local union may be assisted by his organization.
Article 150. The union representative is appointed by the union section of the company. Since coexist two (02) bargaining units within a company, they may form a flat union form and designate one or more inter-union delegates.
In case of disagreement between the unions on the designation of inter-union representatives, no inter-union delegate may be established within the institution or company.
Article 151.- The appointment and removal of inter-union delegates fall within the power of trade unions.
Article 152.- To fulfill their mission, the inter-union and union delegates benefit: 42
a time credit of two (02) hours per week whose use is in agreement with the employer.
The same protection as the elected representatives of termination of employment staff.
Steward functions are incompatible with those of the staff representative.
CHAPTER II REPRESENTATIVES
STAFF Article 153.- Staff representatives are elected compulsorily in establishments where employees are more than eleven (11) employees.
Their mandate is for two (02) years, they can be reelected. The possibility of extending the mandate of the delegates of the outgoing staff shall be two (02) months. Expired this period
if the employer does not organize the elections, he is liable to penalties; if workers do not present candidates, the deficiency is
found by the Labour Inspector of the spring and the employer is protected from the staff representative of absence during the twelve (12) months following the date for the elections.
A decree of the Minister of Labour fixed:
the following number of staff delegates the establishment of categories and the minimum number of workers;
The procedures for the election to be held by secret ballot in the first round on the lists established by the trade union organizations within each establishment for each category of staff;
The requirements to be eligible voters; disputes relating to the electorate, the eligibility of delegates
Staff and regularity of electoral operations; the reporting period and paid as working time
available to delegates for the performance of their functions and the resources at their disposal;
The conditions in which they are received by the employer or his representative;
The delegate revocation conditions by the College of workers
43 was elected.
Article 154. - The number of employee delegates is fixed according to the number of company workers. The election was held by secret ballot on lists established by trade union organizations within each establishment for each category of staff.
East voter, any major worker, having worked continuously in the establishment for at least six (06) months.
Is eligible, any worker who worked for more than one (01) year in establishing and enjoying their civic rights.
Article 155.- Each delegate a deputy elected under the same conditions as above. It replaces in the absence motivated, death, resignation, dismissal, change of electoral college, termination of contract, loss of the requirements for eligibility.
In the absence of the alternate, new elections are held for the duration of the mandate still to run.
Article 156. - Any dismissal of a staff representative considered by the employer shall be compulsorily subject to the decision of the Inspector of the spring work which must take place within forty five (45) days of the referral. After this time, the silence of the Labour Inspector is dismissal permit.
The same procedure is applicable to the dismissal of former staff representatives for a period of six (06) months from the expiry of their mandate, and candidates for staff delegates functions from receipt of applications and for a period of three (03) months after the election.
However, in case of serious misconduct, the employer may order the suspension of the employment contract of the person concerned only after notifying the Inspector of the spring work.
If the dismissal is refused, the decision taken by the employer is null and void.
If the dismissal of refusal is confirmed by the administrative court, the worker concerned is entitled to the return of salaries and other duties not collected during the period of suspension decided by the employer and may claim damages determined by the jurisdiction.
44 Article 157. - The College of workers who elected the Staff Officer may revoke. The revocation is acquired regardless of the pattern after approval of two-thirds (2/3) at least of the members of the college who elected the delegate and after notifying the union who presented and the employer.
Article 158. Staff representatives are responsible for:
to present to employers all individual or collective complaints concerning in particular working conditions, worker protection, the application of collective agreements, classifications professional and wage rates;
Enter the labor inspectorate of any grievance or complaint regarding the application of laws and regulations that have not been met at enterprise level;
Ensure the implementation of hygiene requirements relating to the safety of workers and social protection, and to provide all useful steps in this regard;
Communicate any useful suggestions and to discuss with the employer any measures to improve the organization and business performance;
To share the employer to their opinions and suggestions on layoffs measures envisaged in case of reduction of activities or internal reorganization of the institution.
In fulfilling their mandate, staff delegates may, at their request, be assisted Steward.
The staff representatives have a monthly credit of fifteen (15) hours for the performance of their duties. This duration can not be combined, is paid and considered as working time.
CHAPTER III COMMITTEE CORPORATE
Article 159.- There shall be established in all enterprises subject to the Labour Code and occupant from fifty (50) permanent workers, Works Committee.
The works council, bipartite consultative body, is a platform of negotiation, dialogue and stakeholder collaboration in the enterprise. It is consulted and gives its opinion on all questions concerning the
45 workers' lives: working conditions, social and cultural affairs, health, safety, health and work environment, individual or collective dismissal for economic reasons , labor disputes.
Article 160.- The Works Council shall ensure the implementation of laws and regulations and makes proposals for improving the functioning of the company.
Article 161.- Members of the Corporate Committee entitled:
to be informed about the operation of the business; to make the referral of the inspection or the Labour Court; to protection against unfair dismissal; to appeal to the office of an expert.
Article 162. The members of the Works Council are held in reserve duty. They must also:
establish a periodic report to the workers through display and the maintenance of a register of the minutes;
Participate in the various activities of the Committee.
Article 163.- The works council is composed:
by the elected representatives of workers and trade union or inter-union delegates, first;
And the employer or its representatives, on the other.
Article 164. Each member of the Committee elected a deputy in the same conditions as above. It replaces in the absence motivated, death, resignation, dismissal, change of electoral college, termination of contract, loss of the requirements for eligibility.
In the absence of the alternate, new elections are held for the duration of the unexpired term.
Article 165.- Any dismissal of a member of the Company contemplated by the employer Committee must be submitted to the decision of the Inspector of Labour shall take place within forty five (45) days.
The same procedure is applicable to the dismissal of former members of the Works Council for a period of six (06) months from the expiry of their mandate, and candidates for the election of Committees 46
|| | Corporate from the submission of applications and for a period of three (03) months after the election.
However, in case of serious misconduct, the employer may order the suspension of the employment contract of the person concerned only after notifying the Inspector of the spring work.
If the dismissal is refused, the decision taken by the employer is null and void.
If the dismissal of refusal is confirmed by the administrative court, the worker concerned is entitled to the return of salaries and other duties not collected during the period of suspension decided by the employer and may claim damages determined by the jurisdiction.
Article 166. - The College of workers who elected the Works Council may revoke.
The revocation is acquired regardless of the pattern after approval of two-thirds (2/3) at least of the members of the college who elected the Committee and after informing the union who presented and the employer.
Article 167.- A decree issued after consultation of the National Council of permanent employment the number of workers and employers within members of the Works Council, the exercise of the functions thereof and the election procedures , dismissal and replacement.
CHAPTER IV RULES
Article 168.- The Rules of Procedure is a written document by which the employer sets the general and permanent rules for its technical organization of the establishment and the general discipline in determining the nature and degree of sanctions that may be imposed as well as the procedural provisions guaranteeing the rights of defense, hygiene and safety rules for its smooth running.
All other terms that would be included in particular those relating to remuneration are considered null and void.
Article 169. - The development of internal regulations is mandatory in all enterprises normally employing at least eleven (11) workers.
When a company includes separate institutions, Regulation
47 inside the company may include special provisions for particular establishment.
Article 170.- The development of the rules is the employer's power.
The draft rules shall be communicated by the employer to the employee representatives for review.
A decree of the Minister of Labour fixed:
The minimum content of the rules; visa arrangements, deposit, display rules; the standard rules of procedure; the applicable penalties.
Article 171.- Any other similar regulations developed by the employer, contrary to these provisions, including those containing the same time organizational rules and marketable provisions of the area of the collective agreement is null and void .
Article 172.- It is forbidden for the employer to impose fines in any form whatsoever.
CHAPTER V AGREEMENTS OF BUSINESSES AND COLLECTIVE AGREEMENT
Article 173.- Collective Labour Agreement is a written agreement concerning the conditions of the concluded work:
1- At the company: a) where employees are less than fifty (50) workers, it is
concluded between: one or more employers or a group of employers, first
; and staff representatives on the other.
B) from fifty (50) employees, the entity worker is represented by the Works Council.
2- For a level exceeding the framework of the company, it is concluded between: 48
one or more employers or groups of employers; and the representatives appointed by the trade union platform of
unit in question or, where appropriate, representatives of the most representative unions in the unit.
Article 174. Negotiators must be duly authorized by their organizations. They may be assisted by their respective organizations that can appeal to any person of their choice.
Article 175.- The collective agreement must include more favorable provisions than those laws and regulations. They may not derogate from the provisions of public order.
Collective agreements determine their scope; the latter may be national, local or limited to one or several institutions, in one or more undertakings.
Article 176.- Once the company usually occupies fifty (50) workers, the negotiation of a collective agreement is mandatory.
The initiative of negotiation is left to the first party. If necessary, the Labour Inspector ordered the refractory portion. The parties can appeal to a particular audience of their choice.
Article 177.- The provisions of a collective agreement of wider application than the company may extension and may be made compulsory for employers and workers included within the professional jurisdiction of the Convention by decree issued after consultation of the National Labour Council.
The initiative for the extension returns either trade unions or employers' organizations, or to the Minister of Labour. It is carried out on referral to the Minister who must bring together stakeholders before any expansion decision.
So the Extension Order, issued after the National Labour Council, may either exclude certain clauses or reporting.
Article 178. A decree issued after the National Labour Council, may, in default or pending the establishment of a collective agreement, regulate the conditions of work for a particular industry.
Article 179. Agreements on one or more establishments
49 determined may be concluded between, on the one hand, an employer or group of employers and, secondly, the representatives staff or union sections of the establishment or establishments concerned, appointed by agreement between them and possibly assisted by a person of their choice.
The settlement agreements are intended to adapt to the particular conditions of the establishment or establishments concerned, the provisions of collective agreements. They can provide more favorable to workers.
If no collective agreement, the settlement agreement is, at least on job classification, wage setting and exceptional permissions. It is capable of extension.
Article 180. A decree issued after the National Labour Council sets the terms of the negotiation, conclusion, accession, review and termination of collective agreements and settlement agreements.
Article 181. Where there is no national or regional collective agreements, company agreements or establishment can determine working conditions, social guarantees under the provisions of this chapter.
In the contrary case, they can adapt the provisions of collective agreements in the special conditions of business or establishment. They may include provisions or clauses more favorable to workers.
Article 182. - A collective agreement whose scope is regional or national is concluded, on the side of workers by representatives of the most representative trade union organizations and, on the side of employers by union representatives or any other group representative employers.
Article 183.- The representativeness of employers 'and workers' organizations is measured by the following criteria: 50
1- for professional employer groups:
multisectoral group legally constituted and operational ; number of formal enterprises (paying tax)
affiliated directly or indirectly; numbers of workers reported to the National Social Welfare
; amount of annual contributions paid to the Caisse Nationale de Prévoyance Sociale
; geographical location,
2 - for workers' unions:
multisectoral trade union; number of staff delegates elected for the union or group of unions
; geographic implantation ; international affiliation.
CHAPTER VI OF THE NATIONAL COUNCIL WORK Article 184.-
is hereby established within the Ministry of Labour, the National Labour Council, a tripartite body for consultation, dialogue and monitoring. It provides a framework for consultation and negotiation between the social partners on wages and working conditions and an information framework on all matters included in its jurisdiction.
The Regional Tripartite Labour Councils are created in each region.
Article 185.- The National Labour Council contributes to the determination of national policy in the field of employment and vocational training for the promotion of active workers in companies. Thus
it monitors the implementation of the policy thus defined; it is consulted in the design of legislation and regulatory
entering its jurisdiction; it determines the minimum wage fixing mechanisms and sets
minimum rates of remuneration.
51 The National Labour Council is consulted by the National Council for Technical and Vocational Training, body determining the guidelines and ensure the implementation, in terms of national policy on training work in general and in particular business training.
Article 186.- The National Labour Council may be in it, if the need arises, specific technical committees to review and make proposals on any questions of a technical nature relating to the work , employment and vocational training. These include:
of the Committee on health and safety; the Committee on Employment and Vocational Training; the Social Protection Committee; the Committee on purchasing power and wages; the labor board.
Article 187. The organization and functioning of the National Labour Council and Regional Councils Tripartite Labour are set by decree and internal regulations.
CHAPTER VII OF THE NATIONAL INSTITUTE OF LABOUR Article 188.-
is hereby established within the Ministry of Labour, a National Labour Institute, administrative institution with legal personality, financial autonomy and its own assets.
The Inter-Regional offices of the National Institute of Labour are created in each Autonomous Province.
The terms of organization and functioning of the National Institute of Labour are established by Decree of the Minister of Labour.
Article 189.- The National Labour Institute's mission is to ensure the continuous training of workers to enable them to participate actively in the economic and social life of the company and the country, and ensure full trade union and related functions.
52 Therefore, it aims to:
develop human resources; strengthen the capacity of organizations of employers and workers
on promoting social dialogue; provide executives, union officials and workers, a
technical and general training in the areas of labor, business management, economics and working conditions;
Provide them with benefits, and documentation, including editing a newsletter to workers and employers;
Conduct research on work, particularly in terms of health and hygiene at work, work environment;
Contribute to the creation of a statistical observatory work and a work on database center;
To establish a bank of projects for the retired workers;
Or licensees for their social reintegration.
Article 190.- In addition, the National Institute of Labour:
collaborates with research work done by the technical departments of labor, employment and social protection;
Helps train controllers and labor inspectors.
TITLE VI OF VOCATIONAL TRAINING
CHAPTER I GENERAL PROVISIONS Article 191.- Vocational education is a right of the worker and a duty for the nation.
Vocational training aims, the adaptation of workers to technical changes and working conditions and promoting social advancement of workers and their access to different skill levels.
Article 192. The vocational training of workers in employment status includes: 53
initial training that can be made in the form of learning provided for in Articles 30 and following of this Act or alternating training;
Continuing vocational training.
Article 193.- The State, local authorities, public institutions, public and private educational institutions, associations, professional organizations and businesses contribute to the professional training in the conditions defined by of regulations, including those set:
the form and terms of the partnership; the substantive conditions, form and effect of learning
contract and the employment contract / training; the establishment of modalities agreement and granting licenses; the organization and operation of vocational training
continues; State's rights and obligations and the social partners.
According to Law No. 91- 018 05 August 1991, the National Council for Technical and Vocational Training under section 181 above is the performance of the Ministry of guardianship body of employment, responsible for the development and implementation of the above regulations.
Article 194. Every worker has the right to leave education / training.
The length of educational leave / training is limited to twelve (12) working days per calendar year, not including travel time and is paid as working time by the employer.
The conditions for granting these permissions are determined by decree of the Minister of Labour.
Article 195. - The remuneration referred to in the preceding article for the paid educational leave / training is equal to the base salary usually paid by the beneficiary.
Article 196.- Non-deductible temporary leave of a maximum of twelve (12) working days, excluding travel time, are granted by calendar year once or twice, at the request of regularly mandated worker by her union, to enable him to attend the 54
statutory congresses, seminars union organizations of workers and international meetings to which he is invited.
These permissions are paid by agreement of the parties or according to the provisions of a collective agreement or use of the property.
The time off to meet the above provisions can, in each institution, cut more than ten (10) percent of the workforce each occupational group of the company's workers.
Applications, handed the head teacher at least fifteen (15) days in advance, are retained in the order of their deposit.
Permissions obtained under the conditions defined in articles above are regarded as an effective service for the determination of both the rights to paid leave that all the rights that the employee keeps his seniority in the company.
CHAPTER II TRAINING ALTERNATING
Article 197.- is considered to be vocational training course, all training provided within the company to be acquired in a determined candidate workstation, technical know-how and sign required by the position he might occupy the completion of training.
Alternating training comes in the form of an employment contract / training, qualification contract, adjustment contract or an introductory course to contract for professional life.
CHAPTER III VOCATIONAL TRAINING Article 198.-
Continuing professional development is to the adaptation of workers to technical changes and working conditions for promoting social development and access to different levels qualification.
55 TITLE VII WORKING DISPUTE DISPUTE
CHAPTER I INDIVIDUAL SECTION 1
In the proceedings before the labor inspectorate
Article 199.- Any worker or employer may request Labour inspection to resolve the dispute amicably.
However, labor inspection is mandatory referral before that of the competent court for the settlement of disputes between a worker still under contract with his employer.
It is the same in case of gross violation of legal provisions. The referral is then made on termination of either party.
The referral is, cons, optional once the working relationship between the two sides broke down. This is in case of refusal to pay the balance of any account by the employer.
The inspection of the local Labour is entered for the administrative unit is not provided with the labor inspectorate.
The Inspector of Labour, previously entered, is entitled to stop an infringement of the Code of Labour as soon as it formal evidence of its existence and request reinstatement of the situation.
Article 200.- The conciliation procedure before the labor inspectorate is mandatory when it is formally previously had any action before the competent court. The Labour Inspector spring convene automatically the other party to the dispute to hear his point of view and try to settle amicably the dispute.
The parties are obliged to answer the summons of the Inspector of Labour under conciliation.
The Labour Inspector is required to prepare a report and issue a copy to each party regardless of the outcome of the conciliation procedure:
56 Minutes conciliation, he has obtained the agreement of the parties; a partial conciliation report, if there is disagreement on certain points
; a record of non-conciliation in the event of total failure of the conciliation and
; a deficiency of minutes in case of non-appearance of a party
after a third call.
Article 201. - In case of partial conciliation, conciliation fails or default of the other party, the Labour Inspector reminds the applicant that he may bring proceedings before the competent court.
In addition, if a party fails to appear or is not validly represented, the Labour Inspector shall make a report on the basis of which the competent court pronounces sentence under section 473 of the Penal Code.
Article 202.- In case of refusal by one of the parties to perform the minutes of conciliation, the President of the Labour Tribunal may, by order, determine at the request of one of parties that the minutes will be endorsed with the enforcement order by the Registrar.
Any case was already submitted to the competent court and having been the subject of a decision binding. It can no longer be brought before the Labour Inspectorate which must be declared inadmissible.
It is the same for a case finally resolved at the Labour Inspectorate.
Article 203. - In case of dispute based on the violation of a provision of the legislation in force, the Inspector of Labour may intervene by letter or telephone with the employer to make him take a particular action with respect to its employees to restore the situation and observe the law.
Article 204.- The Labour Inspector determines the rights of the complainant worker provided in law and order, therefore, the restoration of those rights and the payment of amounts due to the employee wronged under the laws and regulations, if:
non issuance of letter of dismissal; non-payment of wages; non-payment of compensation in lieu of unused leave;
57 non payment notice; non-payment of severance pay if any; not issuing provisional certificate of employment or certificate
The default or recovery then results in a direct action before the competent court. SECTION 2
labor courts Article 205. - is instituted in the courts, labor jurisdictions experiencing individual disputes between worker and employer:
disputes arising from the interpretation of the Act or the collective agreement or settlement agreements;
Disputes arising at the labor contract or the apprenticeship contract;
Dispute not reconciled before inspection work regularly seized.
Any matter already settled at the labor inspectorate brought before the Labour Court must be declared inadmissible by the latter.
Article 206.- The composition, jurisdiction and powers of the labor courts and the procedural rules applicable to them, are secured by special texts.
Article 207. - The Labour Court has the dual mission to reconcile and judge if conciliation fails.
Article 208.- The competent court is that of the workplace.
However, the worker may, after termination of the employment contract, before the court of the place of residence or the domicile of the employer.
Any clause contrary to the provisions of the two preceding paragraphs is considered unwritten.
58 CHAPTER II SETTLEMENT OF DISPUTES GROUP
OF WORK SECTION 1 settlement procedures of the various collective
Article 209.- A conflict, to be collective, must meet two characteristics:
the presence of a number of workers made in a group of law or fact;
The existence of a collective interest translates into specific claims.
Article 210. - The procedure of collective dispute involves three steps:
negotiation; mediation ; arbitration.
§ 1 - In the negotiation
Article 211.- The first step of the procedure is mandatory is negotiation. Negotiation is an attempt by both parties to find common ground on points of contention, without any third party intervention.
Article 212.- The negotiation proceeds of collective bargaining:
at the company, in the company or, failing Committee between staff representatives and the employer or his representative;
At a level exceeding the company's framework between one or more trade unions represented by the inter-union delegates the one hand and one or more professional organizations of the other employers.
The procedure is triggered by a letter of complaint sent by workers to the employer. The letter must be signed by representatives of workers, the works council or, failing by delegates.
A copy of this letter is sent for information to the competent labor inspection.
59 Article 213. - The employer is required to organize a first negotiation meeting after a period of sixty two (72) hours of notification of the letter of complaint.
Article 214.- At the request of a party, negotiation meetings result is:
final settlement of the conflict, the parties will prepare an official report on the achievements of the negotiation;
The partial settlement of the conflict, the report prepared by the parties distinguish the points earned and the points on which no agreement could be found;
where the employer would not have organized negotiation sessions within the time limit;
Failing agreement on all points of the letter of complaint; for non-appearance of one or both parties to the negotiation session
Article 215.- In all cases mentioned in the preceding article, copy of the minutes shall be sent by either party to the competent labor inspection. The Labour Inspector shall, within forty eight (48) hours of referral, to see the success or failure of negotiations.
Article 216.- The right to strike or lockout is acquired at the date of receipt by the labor inspectorate of total or partial failure observation of negotiation, subject to the observation of a notice period of forty eight (48) hours sent by registered letter to the other party. A copy of this letter of intent is communicated to the Ombudsman.
§2 - From mediation
Article 217.- The second stage of the process is mediation. It is compulsory and intermediary between negotiation and arbitration.
Mediation involves the intervention of a mediator appointed by agreement of both parties in dispute. In case of disagreement between the parties, the Labour Inspector of the spring is designated mediator office. It aims to reconcile the divergent positions of the conflicting parties helping them find an honorable and mutually acceptable settlement. To this end, it has a period of forty eight (48) hours after the conclusion of the negotiation fails to convene the parties in conflict.
60 The duration of the mediation shall be three (03) days from the beginning. It may be extended by the mediator if it finds a likely settlement within a reasonable time.
Article 218.- In remote districts and unfilled labor inspection, the head of the local administrative area replaces the Labour Inspector.
The parties may be represented by persons of their choice for mediation.
Article 219. If a party fails to appear or not done properly represent the Ombudsman reconvene the parties within forty eight (48) hours.
The non appearance constitutes an obstacle to the exercise of the function of labor inspectors punishable under Article 473 of the Penal Code.
The mediator has a real investigative powers in order to know with maximum precision data of the problem, including by way of surveys and appraisals.
The mediator may make a partial or overall recommendation of the dispute. It is not imposed on the parties.
After mediation, the mediator shall, as appropriate, a finding minutes either the agreement or the total or partial disagreement of the parties and, if appropriate, the Ombudsman's recommendation. The parties countersign the minutes and receive amplification.
The points gained by the Ombudsman are immediately enforceable; Mediation minutes must fix turnaround times.
§3 - In arbitration
Article 220.- If mediation fails, the collective dispute is submitted by the Ministry of Labour and Social Laws:
either the contractual procedure arbitration application of a collective agreement between the parties;
Either to the arbitration of the competent labor court.
61 Article 221.- The arbitration shall be only on points that have not reached an agreement during mediation.
Any new request was not submitted to mediation is inadmissible.
Article 222.- The arbitration board established in each jurisdiction includes:
President of the Court of First Instance, Chairman; the President of the Labour Court jurisdiction or failing the person who performs the function
; Inspector of the spring work; an employer assessor appointed by the employer among
employer assessors in the annual list of the court; A worker assessor appointed by workers among workers
assessors in the annual list of the court.
Article 223.- If the mediator's report contains a recommendation, the burden of proof before the arbitration board is on the party who rejects.
Article 224.- The arbitration does not suspend the strike or lockout in progress.
Article 225.- The arbitration award must be reasoned and notified to the parties immediately.
This decision is final and without appeal. It ends the dispute. As from the transmission of the decision to the parties, a strike or lockout must end.
Article 226. - The mediation agreements and arbitral awards are immediately inserted in the Official Gazette and posted in the offices of the competent labor inspection.
The minutes of agreements and arbitral awards are filed with the Registrar of the labor dispute instead of court.
Article 227.- The mediation and arbitration is free.
62 SECTION 2
strike Article 228.- The right to strike is recognized and guaranteed by the Constitution, is exercised within the framework of current legislation and after exhausting the grievance procedure collective provided by Articles 203 and following of the Code.
The strike is a complete stop, concerted and collective labor decided by employees of a company or institution to achieve professional claims that have not been met.
The right to strike of employees subject to this Code may be limited by the application in the case of disturbance of public order or if the strike would endanger the life, safety or health of all or part of the population.
Article 229.- The strike suspends the employment contract; the employee is exempt from providing its normal working; he covers his late strike employment and can not be punished because of his participation in the strike. The employer is not required to pay the employee his usual remuneration.
The strike end control agreements between the employer and workers can nevertheless provide for the granting of compensation offsetting some or all lost wages due to the strike. They may also provide for recourse to either overtime or on hours of recoveries to offset all or part of the consequences of the strike.
Employees can apply to the competent court for damages repairing the damage they have suffered because of the strike action.
Article 230.- The strike does not suspend the mandate stewards nor the staff representatives.
Article 231.- The strikers must, under their responsibility, ensuring the necessary security measures for goods and people and respect the work tool.
Even during a strike, it is prohibited for any person to oppose by force or threat, to the free exercise of professional activity of employees or employers.
63 SECTION 3 The lockout
Article 232.- The lockout is the closure of all or part of a company or institution by the employer on the occasion of a strike by employees of his company.
The lockout is permitted if justified by an imperative of security or when the strike is clearly improper.
If the lockout is lawful, its duration ends when the causes that provoked disappear.
Article 233.- The lawful lockout leads to the suspension of the employment contract and provides the employer to pay the employee the remuneration normally due for the period concerned.
When the lockout is pronounced irregularly, the employer must pay each worker concerned salaries and allowances that he would have collected if he could provide his usual work performance.
TITLE VIII BODIES AND MEANS OF CONTROL
LABOUR ADMINISTRATION SECTION 1 §1 - In the Labour Inspectorate
Article 234.- The Labour Inspectors are responsible, under the authority of the Minister of Labour:
ensure the implementation of laws and regulations relating to conditions of work and protection of workers in the exercise of their function, such as provisions on working hours, wages, safety, hygiene and well-being, employment of children and adolescents as well as provisions resulting from a collective agreement or a settlement agreement and other related matters;
To provide information and technical advice to employers and
64 workers on the most effective means of complying with the legal provisions in force;
To bring to the attention of the competent authority defects or abuses not specifically covered by existing laws and regulations.
Article 235.- The competent authorities shall take the necessary measures to:
provide the Inspectors local offices, suitably equipped in the needs of services and accessible to interested audiences;
Provide the Inspectors Labour transport facilities necessary for the performance of their duties in case there would be no suitable public transport facilities;
- Reimburse Labour Inspectors all travel and incidental expenses necessary for the performance of their duties.
The implementation of these measures is supported by the State Budget.
Article 236.- The Labour Inspectors are sworn and faithfully carry out their duties and not to reveal, even after leaving the service, trade secrets and, in general, operating processes which could be aware in the exercise of their function. This oath is written to the Appeal Court or the judge of the competent court.
The Labour Inspectors must keep confidential the source of any complaint.
Article 237.- The Inspectors of Labour, who have a mission order, have initiated their audits and investigations under the laws and regulations.
Are subject to the control of Labour Inspectors, all industrial, commercial and agricultural establishments and their dependencies of any kind whatsoever, whether public or private, secular or religious even if they have a cooperative, educational professional or charity, including establishments where employees are members of the family under the authority of either the father or the mother or guardian except for institutions of a military character.
65 Article 238. - The Labour Inspectors provided with credentials of their duties and a mission order are allowed:
to enter freely and without previous notice at any hour of the day and night any workplace liable to inspection control;
To enter by day any premises which they may have reasonable cause to believe to be liable to inspection by the inspection;
To carry out any examination, test or inquiry deemed necessary to ensure that legal provisions are being observed, including:
to interview, alone or in the presence of witnesses, the employer or the staff of the company on all matters relating to the application of legal provisions;
To ask of any books, records and documents the keeping of which is prescribed by the legislation on working conditions, in order to verify compliance with the legal provisions and to copy or make extracts ;
To enforce the posting of notices apposition is required by the legal provisions;
To take or remove for analysis, samples of materials and substances used or handled, subject to the employer or his representative being notified of any materials or substances were removed and take for this purpose.
Article 239.- The Labour Inspectors have the broadest powers to obtain information on the economic situation of enterprises and social situation of workers. To this end, they can conduct all business surveys, labor and require the production of any document or information professional, economic, accounting, financial or administrative likely to be useful for the accomplishment of their mission. They can use the expert offices or qualified person likely to enlighten them, and be accompanied by staff representatives during their control.
The employer and the worker must answer a summons from the Labour Inspector on the exercise of checks and investigations devolved to the Inspectors of Labour and Social Legislation.
The fact that a party not respond to the calling of the Labour Inspector hinders the performance of duties of a police officer, punishable under Article 473 of the Penal Code.
66 If necessary, it can call on the police to perform their mission. It is empowered to directly apply to the competent judicial authorities. It notes with minutes authentic until proven otherwise, for any infringement of legislation and regulation.
Under penalty of nullity, the original of the minutes must be sent within six (06) days of closing the prosecutor and a certified copy addressed to the party or its representative.
The prosecutor is required to enroll, within one (01) months, the minutes by direct summons.
The other terms of the Labour Inspectors control powers are fixed by decree.
Article 240. - The Labour Inspectors are authorized to prescribe measures for remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to health or worker safety.
To this end, the Inspectors have the right, subject to any judicial or administrative, to order or to order:
such alterations to facilities within a fixed period, the amendments necessary for ensure compliance with the legal provisions on health and safety of workers;
Immediate executory action up to the temporary closure of the offending business to be taken in case of imminent danger to the health and safety of workers, after consulting the other relevant departments, within twenty four (24) hours.
Article 241. - The Labour Inspectors exercise their powers within the limit of their territorial division and to that extent only, unless mission order from the higher authorities.
§2 - The Labour Controllers
Article 242. - The labor controllers assist Inspectors
67 Labour. They are empowered to find infringements of the provisions of the legislation and labor regulations by written reports, upon which, the Inspector of Labour may decide to draw up minutes in the manner provided in Article 239 paragraph 5 above .
Controllers take oath along with the Inspectors of Labour.
§3 - Inspector Des substitutes work
Article 243. - In the precincts where there are neither Labour Inspector or Controller of Labour, the district chief address to the Labour Inspector , the information upon which the latter may decide to take the minutes, in the manner provided in Article 239 paragraph 5.
in the case referred to in paragraph above, the head of the territorial division must put at the permanent disposal of Labour Inspectors and Labour Controllers, a room or office planned for their passage, in view of facilitating their task of advising, conciliator and control.
Article 244.- The medical labor inspection is organized by decree. Attached to the central labor administration, it is directed by a medical doctor, graduated in medicine.
Article 245. - The organization and functioning of the labor administration are established by decree in accordance with the administrative structures in place.
Article 246.- In military establishments employing the hand of civil work, the powers of Labour Inspectors in control and worker protection are assigned to officials or officers specially appointed for this purpose. They are accountable for their actions to the competent labor inspection so that the worker can make the appeal he considers necessary to the Inspector of Labour.
This designation is made on the proposal of the Minister of Defence, by decision of the head of government. The provisions of Article 236 above shall apply. SECTION 2
From the employment and investment
Article 68 247.- is hereby established within the Ministry of Labour a National Employment Office, responsible to collect, centralize, coordinate and process data on the employment market and ensure investment activities.
A Decree issued after the National Labour Council, determines the composition, organization and operation of the National Employment Office.
Article 248.- The private placement activities are permitted, subject to be performed by a specialized service of employment and investment, the conditions and procedures for exercising are determined by decree issued after consultation of the National Council work.
The opening of an investment property is subject to the approval of the Minister for Employment.
Article 249.- No fees or charges of any kind whatsoever may be charged to workers who come to the placement institution.
A Decree issued after the National Labour Council shall determine the cases and limits withdrawals that investment institutions can make to employers as well as the granting and withdrawal of approval.
Article 250.- The investment institution must provide periodically to the Minister for Employment, information on the offers received for follow-up of the labor market, in the manner specified by decree of the Minister of 'Employment.
CHAPTER II CONTROL MEANS
Article 251.- Any person who proposes to open a business of any nature whatsoever, shall make a declaration to the Labour Inspectorate of the spring on a standard form provided by the administration.
determine how this statement; determine the period within which existing businesses must make this statement
; require the production of periodic information on the situation
Article 252.- Employers must constantly maintain in each establishment, a register called "employer's register" to collect all references to the exercise of control of labor services. A decree of the Minister of Labour shall determine the form and content of the register and the conditions in which it must be made available to the Inspectors of Labour.
Article 253. - The employer must also keep a record for each worker special category defined in this code: day laborers, engaged in testing, learning, displaced, temporary, part-time and home and seasonal workers under eighteen (18) years.
Article 254.- The work provider and the incumbent contractor must maintain, the respective list of home workers and subcontractors with whom they have contracts.
In return, home workers and subcontractors are required to post in workshops, construction sites or any other place of work, the names and addresses of their work or their donor contractor who holds they take work.
TITLE IX PENALTIES SECTION 1 Offences relating to general obligations of the employer
Article 255.- shall be punishable by a fine of 3 hetsy MGA 1,500,000 FMG or 2 hetsy sy 1 tapitrisa Ariary or 6,000,000 FMG, any employer who, despite the demand of Labour Inspector in order to comply with the legal provisions in force, in a period not exceeding one (01) months after the receipt of such notice will not:
complied with the provisions in Article 5 concerning the employment contract; said the opening of an establishment or held
employer registers and other special registers provided for in Articles 251-253 of this Law;
Developed internal rules, under Articles 168 and following of this Act.
In case of recidivism, the fine is 6 hetsy MGA 3,000,000 FMG or 4 hetsy sy 2 tapitrisa Ariary or FMG 12,000,000.
70 SECTION 2 Protection of Wages, employment and job seekers
Article 256.- shall be punishable by a fine of 5 hetsy ariary 2,500,000 FMG or 2 MGA or tapitrisa 10,000,000 FMG, any person who, despite the demand of Labour Inspector in order to comply with the legal provisions in force, in a period not exceeding one (01) months after receipt of lay remains will not:
complied with the provisions of Articles 31 and following relative to learning;
Complied with the provisions in Articles 35 and following concerning the probationary appointment;
Complied with the provisions in Article 41 relating to displaced workers, compulsory and rights, transportation costs;
Complied with the provisions in Article 42 concerning the Malagasy labor contracts Madagascar recruited to work abroad;
5- complied with the provisions in Articles 47 and following relating to the employment contract of home workers;
6- applied the maximum duration of the interim under Article 44.
Will also be punished with the same penalty any person who, exercising investment activities, do not respect the terms and conditions set with Articles 247 and following of this Act.
For all offenses under this article, the penalty shall be doubled in case of recurrence.
Article 257.- shall be punishable by a fine of 5 hetsy MGA 2,500,000 FMG or 2 MGA tapitrisa or 10,000,000 FMG:
any employer who has paid a worker a wage below the minimum wage agricultural professional and non-agricultural employment (SME);
Anyone who has not applied the monthly payment of employees paid by the hour or by the day after six months of continuous service;
Any person who has paid a piecework or piece or performance at a lower than the paid worker to medium capacity time salary and working normally, doing similar work, in violation of Article 55 paragraph 1 of this Act;
Any employer who has imposed a worker goals or "targets" and quotas exceeding those set by the Joint Arbitration Board 71
free enterprises and areas; any employer who has not integrated bonuses, allowances, commissions and
various benefits enjoyed by the worker in the calculation of the allowance and severance pay, in lieu of notice, compensation dismissal;
Any employer who does not respect seniority and at least pay already earned by a worker who, after training or competition, will have gained a higher professional level;
Any employer who has not paid to the worker are the discounts to him as a "service".
Be punishable with the same penalty: 1-
will be paid the wages of the worker in currency other than legal tender;
Will be paid the wages in liquor or in kind, except as provided by laws and regulations;
Have violated the rule of payment of wages at regular intervals, at the workplace or at the employer's office when it is near the workplace, except in cases of force majeure;
Will be not complied with the obligation to issue a payslip as provided by section 64 of this Act;
Any employer who, in violation of Article 69 of this Act, be operated off between the amount of wages owed by the worker himself and the amounts that would be due to him himself for miscellaneous supplies;
Any employer who commits a violation of rules governing the commissary;
Any person who makes deductions from the salaries or wages of workers, other than those provided for by Articles 69 and 71;
For all offenses under this article, the penalty shall be doubled in case of recurrence.
72 SECTION 3 Obstacles, working conditions, hygiene,
occupational safety and environmental
Article 258.- penalty of a fine of MGA or 4 hetsy 2,000,000 FMG 6 hetsy sy 1 tapitrisa Ariary or FMG 8,000,000 and imprisonment of three (03) months 01 (one) year or one of these penalties:
any person who has violated or attempted to harm either to freedom of establishment and membership is to perform the duties of organizations workers and employers;
Any person who has violated or attempted to harm either to the setting up of union representatives, staff representatives and the Works Council or the regular course of their duties;
Anyone who opposed or tried to oppose the obligations or exercise the powers incumbent upon the Labour Inspectors, controllers work and physicians Labour Inspectors;
Instigators and strike leaders and illegal lockout.
In case of recidivism, the fine and imprisonment shall be doubled.
Be punishable by the same penalties to offenders:
to the maximum working time laid down in Article 75 of this Act; the maximum duration of overtime and increase their
provided for in Article 75 paragraph 3 of this Act; the right of workers to enjoy weekly rest
under section 80 of this Act; Rule paid legal holidays provided for in Article 81 of this Law
; the wage increase for night work, under Article 83
paragraph 2 of this Act; the right to leave, in determining the duration and allocation or the
leave allowance and transport provided for in Articles 86 paragraph 1 and 87 paragraph 1, 2 and 3 and 88, 89, 90 and 91.
Article 259. - will also be liable to the penalties provided for in Article 258 above:
any employer who, despite the demand of the Inspector of Labour to
73 purposes of complying with this Act or its implementing regulations, will not set up individual and collective arrangements of cleanliness, hygiene, safety and comfort at work required;
Any employer who, despite the demand of Labour Inspector in order to comply with this Act or its implementing regulations, will not benefit the worker and his family and preventive services healing prescribed or has not paid the corresponding contributions there.
Workers refusing to comply with the hygiene, safety and working environment, will lose their rights to compensation, in addition to applying the penalties provided for in Article 258 above.
Article 260.- The provisions of the Penal Code which provide for and punish acts of resistance, insults, violence against police officers are applicable to those who commit acts of the same kind in respect of inspectors Labour inspectors doctors of Labour and Labour Controllers.
SECTION 4 Discrimination, particular categories of workers
Article 261.- be punished with a fine of one ariary tapitrisa or 5,000,000 FMG 3 tapitrisa MGA 15,000,000 FMG and imprisonment of one (01) year to three (03) years or the one of these two penalties, all discriminatory treatment based on race, religion, origin, gender, trade union membership, membership and political opinions of the worker as regards access to the employment and vocational training, working conditions and career advancement, pay conditions, dismissal.
Be punishable by the same penalties to offenders:
rules governing night work of women and the protection of pregnant women, under articles 83 and 84, paragraph 1, 3 and 4 as well Articles 93, 94, 95, 96, 97 paragraph 2, 3, 4 and 5 and 98 paragraph 2 of this Act;
To rules protecting the children under Article 32 and Articles 100, 101, 102 and 103 paragraph 2 and 3 of this Act;
The rules protecting disability under articles 104 and 105 of this Act.
74 In case of recidivism, the fine and imprisonment shall be doubled.
The perpetrators with the provisions of Article 5 of this Labour Code are punishable under the provisions of the Penal Code which provide for and punish acts of sexual harassment or other acts of violence against the worker.
SECTION 5 Fraud, illegal foreign workers
Article 262.- shall be punishable by a fine of one ariary tapitrisa 5,000,000 FMG or 4 tapitrisa MGA FMG or 20 million and an imprisonment of one (01 ) year to three (03) years or one of these penalties:
any person who, in violation of Article 4, threat, violence, deception, fraud or promise has forced or attempted to compel a worker to employ against his will or, by the same means, have tried to stop or be prevented from hiring or fulfill the obligations of his contract;
Any person who, by making use of a fictitious contract or containing incorrect information, was made to hire or has replaced voluntarily to another worker;
Any employer or officer or attendant who has knowingly carried out the employer's register or other document, false statements concerning the duration and conditions of work performed by the worker, and any worker who has done knowingly using these certificates;
Any person who demanded or accepted any remuneration of the worker as an intermediary in the settlement or the payment of salaries, allowances, honoraria and expenses of all kinds.
Be liable to the same penalties whoever was involved in illegal emigration operations of Malagasy workers outside the territory in offense to the provisions of Article 43.
Will also be punished in like manner, any person who has done work on the territory of Madagascar foreigners who have not obtained prior authorization from the Minister of Labour and any foreigner who agreed to work in the territory of Madagascar said without prior authorization. 75
SECTION 6 Miscellaneous Article 263.- The offenses under this Act shall be brought before the criminal court under the provisions of the Criminal Procedure Code.
Article 264.- Business leaders are civilly responsible convictions against their attorneys.
TITLE X TRANSITIONAL AND FINAL PROVISIONS Article 265.-
This Act repeals the Act No. 94-029 of 25 August 1995 on the Labour Code and Law No. 94-027 of 17 November 1994 Code Hygiene, Safety and Environment Labour.
However, the regulations made under and for the execution of these laws remain in force in all those of their provisions which are not contrary to this Code of Labour. Apply, under the same conditions, previous regulatory measures to Law No. 94-029 of 25 August 1995, including those taken on the basis of previous Labour Code and until the publication of new laws and regulations .
Article 266. - The provisions of this Code of Labour shall be deemed applicable to individual contracts of work in progress. They can not be a cause of rupture of these contracts.
Any clause of an ongoing employment contract that does not comply with this Code of Labour, or a decree or a decree for its implementation is considered to be modified automatically by the texts.
Article 267.- The collective agreements remain in force in those of their provisions which are not contrary to this Code and may be subject to extension Decrees.
76 Article 268.- The Decrees and Orders issued after the National Labour Council shall enforce the provisions of this Code, even if their enactment was not formally required by the provisions in question.
Antananarivo, on 10 June 2004.
THE PRESIDENT OF THE NATIONAL ASSEMBLY, THE PRESIDENT OF THE SENATE
Lahiniriko Jean Rajemison Rakotomaharo