Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 1(1)(a) and (b) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee notes the adoption of the Labour Code of New Caledonia, which entered into force on 1 May 2008 and which carries over and codifies the laws and regulations which were applicable to this territory, based on the principle of codification on the basis of established law. The Committee notes with interest that in 2009, the Labour Code was amended by Act No. 2009-1 of 7 January 2009 concerning the employment of disabled persons, which added disability to the list of prohibited grounds of discrimination and completed the measures to promote the employment of disabled persons. Under section Lp. 112-1 of the Labour Code, it is now prohibited to take into account, in an offer of employment, recruitment or in the labour relationship, a person’s origin, sex, pregnancy, family situation, actual or presumed membership or non-membership of an ethnic group, nation or race, political opinion, trade union activities, disability or religious convictions. However, the Committee recalls that it considers that national legislation giving effect to the Convention should cover all the grounds listed in Article 1(1)(a) of the Convention. The Committee therefore requests the Government to indicate the measures taken or envisaged so as to include colour as a prohibited ground of discrimination in the Labour Code and requests it to indicate whether the notions of “social origin” and “national extraction” are covered by one of the grounds listed in section Lp. 112-1 of the Labour Code. The Government is also requested to provide information on the application of section Lp. 112-1 of the Labour Code in practice, in particular on any cases of discrimination in employment and occupation on the basis of one or more of the grounds listed in the Labour Code brought to the attention of the labour inspectorate or the courts and, if applicable, on the manner in which these cases have been dealt with.

Sexual harassment. In its previous comments, the Committee requested the Government to provide information on the progress made in revising the legislation on sexual harassment and on the measures taken in practice to prevent this discriminatory practice. The Committee notes that the Government’s report merely indicates that a possible bill is still being considered and that sexual harassment is punished under the Penal Code. The Committee notes that in a report adopted in August 2009 (No. 04/2009), the Economic and Social Council emphasized the need to establish prevention and mediation while developing a legal framework which lays down the major principles and requested, inter alia, the creation of a guide on the prevention of moral and sexual harassment. It also notes that, according to this report, the labour and employment directorate of New Caledonia lacks sufficient logistical, human and material resources to take action in this area. The Committee recalls that sexual harassment has particularly serious repercussions on the integrity and dignity of workers, as well as on the productivity of enterprises, and that its criminalization under penal law is not sufficient to combat all manifestations of this form of discrimination in the workplace effectively. The Committee therefore strongly encourages the Government to establish an appropriate legal mechanism which defines and prohibits both quid pro quo sexual harassment and sexual harassment due to a hostile environment. It also requests it to indicate the concrete measures taken, such as awareness-raising campaigns targeting workers, employers, their organizations, labour inspectors, judges and the population at large, to prevent and eliminate this type of discrimination based on sex, in both the private and public sectors. The Government is also requested to provide information on any measures taken to strengthen the bodies responsible for combating harassment at work, as well as on any cases of sexual harassment reported to, or detected by, the labour inspectorate and the measures taken to deal with those cases.

Article 2. Equal treatment and opportunity for men and women. The Committee notes the statistics concerning the proportion of women in the civil service. Noting that the Government indicates in its report that the majority of managerial posts in the public sector are held by men, the Committee requests it to provide information on the measures taken or envisaged to encourage access to managerial posts in the public sector by women, as well as their impact. With regard to the private sector, it also requests the Government to provide statistics, disaggregated by sex, on employment in the various sectors of the economy and at the different levels of responsibility.

Article 2. Equal treatment and opportunity without distinction based on grounds other than sex. The Committee requests the Government to provide information on the concrete measures taken to promote equality of treatment and opportunity in employment and occupation, including with regard to access to education and vocational training and guidance, in order to eliminate any discrimination based on the grounds other than sex listed in Article 1(1)(a) of the Convention, in particular race, colour and national extraction in both the public and private sectors.

Application to non-nationals. Referring to its previous comments, the Committee notes that pursuant to the provisions of the 2008 Labour Code concerning enterprises established outside New Caledonia which provide services (section 621-1 et seq.), the provisions of the Code prohibiting any discrimination and stipulating equality in occupations, and equal pay between men and women, as well as those concerning maternity protection, are regarded as mandatory. The Committee requests the Government to provide any information available on the application of sections 621-1 et seq. of the Labour Code in practice, in particular on any cases of discrimination reported or noted by the labour inspectorate and, if applicable, on any judicial decision handed down in that regard.

Application of the Convention in practice. The Committee requests the Government to provide extracts from the labour inspectorate’s annual report concerning violations of the principle of non-discrimination and the activities carried out by inspectors with regard to prevention and combating discrimination in employment and occupation, as well as, copies of any judicial decisions handed down relating to equal access to employment and training.