Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Nouvelle-Calédonie

Autre commentaire sur C111

Observation

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Article 1(1)(a) and (3) of the Convention. Prohibited grounds of discrimination and scope of application. Legislation. The Committee recalls that, in its previous comments, it highlighted that the prohibition of discrimination provided for in section Lp. 112-1 of the Labour Code of New Caledonia (CTNC) did not cover colour or social origin and requested clarifications regarding the scope of that section. The Committee notes the Government’s confirmation in its report that the prohibition of discrimination covers all stages of employment, including sanctions and dismissal. Regarding the grounds of discrimination that are not covered, the Government indicates that the terms “race” and “origin”, which are explicitly set out in section Lp. 112-1 of the CTNC, may be interpreted broadly by the Nouméa Labour Tribunal to protect workers against discrimination linked to their “colour” or “social origin”. The Government adds that workers who are victims of discrimination on these grounds can assert their rights under section L. 225-1 of the Penal Code, which covers “physical appearance” and “the particular vulnerability arising out of the economic situation of the worker, apparent or known to the perpetrator of the discrimination”, and which is applicable in New Caledonia. In this regard, the Committee would like to draw the Government’s attention to the fact that criminal proceedings are not necessarily suitable to effectively combat and end discrimination in employment and occupation, particularly taking into account the sensitive nature of these issues and the characteristics of the criminal proceedings, for example in relation to the burden of proof and delays. The Committee also recalls that, when legal provisions are adopted to give effect to the principle of the Convention, they must cover as a minimum all the grounds of discrimination set out in Article 1(1)(a) of the Convention. In order to enable workers to avail themselves of their right to non-discrimination on the basis at least of the grounds enumerated by Article 1(1)(a) of the Convention in the fields of employment and occupation and to avoid any legal uncertainty based on possible interpretations of legal provisions by courts, the Committee requests the Government to take the necessary measures to include “colour” and “social origin” in the list of prohibited grounds of discrimination set out in section Lp. 112-1 of the Labour Code of New Caledonia. In the absence of provisions to this effect in the labour legislation, the Committee also requests the Government to provide information on any proceedings undertaken on the basis of section L.225-1 of the Penal Code in the area of employment and occupation.

Article 1(1)(b). Additional grounds of discrimination. Legislative developments. The Committee notes with interest the amendment to section Lp. 112-1 of the CTNC inserting the prohibition of any discrimination on the grounds of “the exercise of a customary responsibility”, which followed the adoption of Territorial Act No. 2018-3 of 28 May 2018 establishing leave for customary responsibilities. However, the Committee recalls that, in its previous comments, it emphasized that the list of prohibited grounds of discrimination in metropolitan France under the Labour Code (section L. 1132-1) is more extensive than that provided for in the CTNC (section Lp. 112-1) and requested the Government to indicate the reasons for such a difference. The Committee notes the Government’s indication that the labour legislation in New Caledonia, which is under the exclusive jurisdiction of this overseas territory, is developed taking into account the demands of the social partners, but that nothing prevents New Caledonia from adding to the list of prohibited grounds of discrimination set out in section Lp. 112-1 the other grounds covered by the Labour Code applicable in metropolitan France. Noting that an evaluation report on the application of Territorial Act No. 2018-3 of 28 May 2018 establishing leave for customary responsibilities will be issued in a year, the Committee requests the Government to provide information on the findings of the report, particularly regarding any discrimination or obstacle to employment that workers could have faced as a result of exercising a customary responsibility. In light of the above, the Committee also requests the Government, in cooperation with the workers’ and employers’ organizations, to examine the possibility of adding to the list of grounds of discrimination prohibited in New Caledonia under the CTNC, in order to align it with the list of prohibited grounds of discrimination in metropolitan France under the Labour Code and thus to provide the same protection to all workers against discrimination in employment and occupation.

Article 2. Non-discrimination and equality of opportunity and treatment for men and women. The Committee recalls the concerns it expressed in its previous comments about the inequalities and discrimination that women suffer, particularly in employment and occupation. In that regard, the Committee notes that, according to a study entitled “The Labour Force in New Caledonia: 2017 Results”, women’s labour market participation is 12 points lower than that of men and, most importantly, half of women who wish to work do not enter the labour market, especially at the beginning of their family life. This data also shows that, while 57 per cent of Kanak women are active in the labour market (in comparison with 60.8 per cent of all women), their unemployment rate remains high at 21.3 per cent, compared with 13.4 per cent for all women. The Committee notes the Government’s indication that, in view of the persistent de facto inequalities between men and women in the world of work, a reform bill on occupational equality was developed by the Labour and Employment Directorate, in collaboration with the Observatory for Women’s Issues, and analysis was conducted on the measures to be taken to combat gender stereotypes and improve women’s access to the various occupations, particularly in rural areas. Furthermore, the Committee welcomes the organization by the Labour and Employment Directorate, in collaboration with the Observatory for Women’s Issues, of a conference on occupational gender equality, in April 2018, which addressed the issues of equality and the prohibition of discrimination against women, sexual and moral harassment, wage equality and protection for parents (workers with family responsibilities), in the South Province. The Government also indicates that the implementation is ongoing in the North Province of a multi-year plan (2014–19) comprising seven main themes, including action to combat all forms of discrimination against women. Noting that this information appears to demonstrate a willingness to promote equality of opportunity between men and women, the Committee trusts that the analysis undertaken on this matter and the reform bill on occupational equality will quickly lead to specific measures and requests the Government to step up its efforts to raise the awareness of workers, employers and their organizations regarding the issues of equality and non-discrimination in employment and occupation, particularly in the framework of the multi-year plan. The Committee once again requests the Government to take the necessary measures, particularly in rural areas, to: (i) encourage women and girls to undertake training that offers genuine and diverse employment opportunities, particularly in the sectors and occupations traditionally occupied by men; (ii) ensure that women are more aware of their rights and the mechanisms in place to promote access to employment and the different occupations, at all levels of responsibility; (iii) combat gender stereotypes with regard to women’s aspirations, preferences and vocational skills, particularly through awareness-raising and information initiatives; and (iv) implement and develop mechanisms to allow men and women workers to better reconcile work and family responsibilities. The Government is requested to provide information on the measures taken in this regard and on the activities of the Mission for Women’s Issues in the South Province and the Observatory for Women’s Issues in the area of employment, and to continue to provide statistical data, disaggregated by sex, on employment.

The Committee is raising other matters in a request addressed directly to the Government.