Hygiene (Commerce and Offices) Convention, 1964 (No. 120) - New Caledonia

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Previous comments: C.115, C.120, C.127 and C.187

Previous comments: C.115, C.120, C.127 and C.187

In order to provide a comprehensive view of the issues relating to the application of ratified occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine Conventions Nos 115 (radiation protection), 120 (hygiene (commerce and offices)), 127 (maximum weight) and 187 (promotional framework for OSH) together.

Application in practice of Conventions Nos 115, 120, 127 and 187. The Committee notes the detailed information contained in the report of the New Caledonia Compensation Fund for family allowances, occupational accidents and worker protection (CAFAT). This report shows that there were 3,576 occupational accidents in 2019, 3,257 in 2020 and 2,954 in 2021. It also shows that there were 176 commuting accidents with absence from work in 2019, 145 in 2020 and 148 in 2021, and that 80 diseases were recognized as occupational in 2019, 64 in 2020 and 54 in 2021. The Committee notes that CAFAT applies “malus” points (increases, through the application of a safety index, to the rate of contributions for occupational accidents and diseases) to enterprises that regularly fail to observe the principles of occupational risk prevention, and that in 2021 the enhanced monitoring, which was set up for two enterprises to prevent “malus” points from being applied to them, produced rather conclusive results. The Committee also notes that, conversely, CAFAT may apply a lower rate of contribution when the employer has taken special safety and prevention measures. With regard to Convention No. 127, the Committee takes due note of the various initiatives taken by CAFAT, the Directorate of Labour and Employment (DTE), the Labour Inspectorate and the Technical Advisory Committee (CTC) on the prevention of risks associated with the manual transport of loads. The Committee notes, however, that in 2021, of the 54 diseases recognized as occupational, 53 were due to articular diseases (almost half of which concerned people working in commerce, offices, or the public or semi-public services) and the last one was linked to chronic lower back pain due to the manual carrying of heavy loads. With regard to occupational accidents, “manual transport or handling”, which remains the biggest cause of occupational accidents, 851 occupational accidents were accounted in 2020. The Committee requests the Government to continue to provide information on the application in practice of the ratified OSH Conventions, including on the number of occupational accidents and cases of occupational disease, particularly in terms of the manual transport of loads, and particularly in commerce and offices.

Legislation.Noting that the DTE has undertaken to fill the gaps in OSH regulations by drawing up a codification (particularly in the areas of protection against risks related to the inhalation of asbestos, hyperbaric activities, risks related to electricity and night work) and to update the applicable OSH texts, the Committee requests the Government to provide information on any progress achieved towards the adoption of new texts in the above areas, the updating of Decision No. 34/CP of 23 February 1989 of Congress on general safety and health measures, and the amendment to be made to Order No. 2009-4271/GNC of 22 September 2009 on the minimum safety and health requirements relating to the manual handling of loads involving risks, particularly relating to lower back pain, to workers.

A. General provisions

OSH and its promotional framework (Convention No. 187)

• Objective

Article 2(2) of the Convention. Account taken of the principles set out in the relevant instruments of the ILO. Further to its previous comment, the Committee notes that the OSH system is consistent with each of the Conventions listed in the Annex to the Promotional Framework for Occupational Safety and Health Recommendation, 2006 (No. 197), and that the Government has identified the measures taken or envisaged in order to give effect to these Conventions, whether or not they have been ratified by France or declared applicable to New Caledonia. The Committee notes the information provided, which responds to the previous request for information.

Article 2(3). Measures that could be taken to ratify relevant OSH Conventions of the ILO. In response to the Committee’s previous comment, the Government indicates that it has not received any draft text to ensure applicability of the Occupational Cancer Convention, 1974 (No. 139) and the Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148) to New Caledonia. The Committee requests the Government to continue to provide information on the periodic examination of the measures that could be taken to ensure applicability of the relevant OSH Conventions of the ILO to New Caledonia, in particular Conventions Nos 139 and 148, but also the Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) and the Safety and Health in Agriculture Convention, 2001 (No. 184), which have also been ratified by France.

• National policy

Article 3(1) and (3). Periodic examination of the national policy. Consultation with the social partners. The Committee notes that, according to the information provided by the Government in response to its previous request, consultation with and participation of the social partners in OSH matters is carried out within the Social Dialogue Council (CDS). The Committee also notes that the CDS is informed of the main areas of the Government’s activity and the reforms that it proposes in various fields such as labour, employment and worker protection, at the annual social conference; that the Government and the CDS inform each other of the progress of the work at quarterly conferences, and that they set out a shared social agenda, which is reviewed on a quarterly basis. The aim of the agenda is, in particular, to enable discussion and ensure follow-up to the work undertaken or planned by the Government. The Committee notes the information provided, which responds to the previous request for information.

Article 3(2). Promotion and advancement, at all levels, of the right of workers to a safe and healthy working environment. In response to the Committee’s previous comment, the Government indicates that the DTE is responsible for, inter alia, the prevention of occupational risks and the improvement of working conditions, and that to this end it relies not only on the institutional bodies – CAFAT, the Occupational Inter-enterprise Medical Service (SMIT) and the Chambers of Commerce (the Chamber of Trade and Crafts, Chamber of Trade and Industry and Chamber of Agriculture) – but also the social partners. The Committee welcomes the fact that Territorial Act No. 2021-4 of 12 May 2021 relating to the New Caledonian public service has created a joint technical committee for each public employer, which is consulted on issues relating particularly to occupational safety and health, and working conditions. In addition, the Committee welcomes the creation, on 1 January 2021, of the Occupational Health and Prevention Service of the Human Resources and Public Service Department of New Caledonia. Lastly, the Committee notes the regular running of the Fair for social dialogue, risk prevention and vocational training and of the Forum for the prevention of occupational risks. The Committee notes the information provided, which responds to the previous request for information.

• National system

Article 4(3)(c). OSH training. Further to its previous comment, the Committee notes that 32 people have received three-year accreditation to provide first-aid training in the workplace, and nine have been given five-year accreditation to carry out coordination tasks in the field of safety and health protection in the building industry. In addition, the Committee notes the information provided on the free training organized by the DTE and CAFAT on occupational health and safety issues, the training offered by the Institute of Social Relations to employers’ and workers’ representatives, as well as the assistance and training provided by the Chambers of Commerce in OSH matters. The Committee notes the information provided, which responds to the previous request for information.

Article 4(3)(d). Occupational health services. In response to the Committee’s previous comment, the Government indicates that the discussions started with the social and institutional partners on the need to reform the occupational health system resulted in the adoption of Territorial Act No. 2020-7 of 15 May 2020, which replaced Chapter III (on occupational health services) of Title VI (on OSH) of the Labour Code, and Decision No. 37/CP of 24 June 2020 on the reform of occupational health services. According to the Government, the above-mentioned Act has overhauled the legal framework for the occupational health system, with the aim of enabling it to meet the reasonable expectations of enterprise stakeholders; and one of the main innovations was the establishment of either medical follow-up adapted to the worker’s situation, or more thorough follow-up in line with the worker’s exposure to certain risks. The Committee notes this information, which responds to its previous request.

Article 4(3)(g). Provisions for collaboration with relevant insurance or social security schemes covering occupational injuries and diseases. In response to the Committee’s previous comment, the Government indicates that the DTE and CAFAT work in close collaboration to raise the awareness of enterprises and involve them in OSH matters, which results in the organization of occupational risk prevention forums and the publication of manuals. The Committee notes this information, which responds to its previous request.

Article 4(3)(h). Support mechanisms formicroenterprises, small and medium-sized enterprises and the informal economy The Government indicates that three mechanisms, in particular, contribute to making progress in support for enterprises: (i) the CTC, which allows enterprises that lodge a request to obtain financial support for additional means of prevention; (ii) the Inter-occupational Fund for Training Insurance, which ensures the financing of OSH training; and (iii) the Institute of Social Relations, which allows workers’ representatives to receive free training. The Committee requests the Government to specify whether these mechanisms apply to microenterprises, small and medium-sized enterprises, and the informal economy.

• National programme

Article 5. National OSH programme. In the absence of information on the current national OSH programme, the Committee requests the Government to provide a copy of this plan and to specify the manner in which it is implemented, monitored, evaluated and periodically reviewed, as well as the role of the social partners and the CDS in this process.

• Protection against specific risks

Radiation Protection Convention, 1960 (No. 115)

Article 9(2) of the Convention. Instruction of workers engaged in radiation work. The Committee notes that, in response to its previous request, the Government indicates that cooperation between the Government and the Nuclear Safety Agency, which was initiated in 2013 and provided for, inter alia, a support and training programme, was renewed for 2016–18, and then for 2019–21. The Committee also notes that the Chamber of Trade and Industry offers training aimed at optimizing protection for workers against radiation in the medical field and that a training centre for those who manage radioactive sources and x-ray machines, as well as for workers using these machines, is being set up. The Committee requests the Government to provide information on the establishment of the above-mentioned training centre.

Maximum Weight Convention, 1967 (No. 127)

Article 4 of the Convention. Account taken of all the conditions in which the work is to be performed. The Committee notes that Order No. 2009-4271/GNC of 22 September 2009 relating to the minimum safety and health requirements for the manual handling of loads involving risks, for workers, particularly to the lower back, will be amended in the next two years and that there are plans to adopt a third annex, establishing a system of reduction coefficients to be applied according to a given situation (for example, a slanting floor). While expressing the hope that a third annex to Order No. 2009-4271/GNC, establishing a system of reduction coefficients, will be adopted shortly, the Committee requests the Government to provide information on this matter and to send a copy of this new regulation, once it has been adopted.

• Protection in specific branches of activity

Hygiene (Commerce and Offices) Convention, 1964 (No. 120)

The Committee notes the information provided by the Government in its report in response to its previous request concerning Article 16 of the Convention.

Article 19. First-aid kit. In response to the Committee’s previous comment, the Government indicates that, in the light of the obsolete and incomplete nature of Order No. 3445-T of 30 August 1995, regulating the application of section 19 of Decision No. 50/CP of 10 May 1989 relating to occupational health, amended by Decision No. 432 of 3 November 1993, and relating to first-aid kits, a draft decision concerning first-aid kits in enterprises and an implementing order are being adopted. The Government states that this draft has already been submitted to the competent bodies and then to the social partners within the CDS, which must issue its view shortly. The Committee requests the Government to provide information on any progress achieved towards the adoption of a new regulation concerning first-aid kits in enterprises.

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The Committee notes the information supplied by the Government in its report in reply to its previous requests concerning the following Articles of the Convention: Articles 7 (maintenance and cleanliness of premises); 8 (ventilation); 9 (sufficient lighting); 10 (temperature); 11 (layout of workplaces); 12 (sufficient supply of drinking water); 13 (washing and sanitary facilities); 14 (availability of sufficient seating for workers in offices and other workplaces); 15 (suitable facilities for changing, leaving and drying clothing); 17 (protection of workers against obnoxious, unhealthy, toxic or harmful substances, processes and techniques); and 18 (protection against noise and vibrations).

Article 16 of the Convention. Appropriate standards of hygiene in underground or windowless premises. The Committee notes the Government’s indication that New Caledonia has no enterprises that perform underground work and hence the implementation of this Article is not relevant. The Committee recalls that Article 16 of the Convention also applies to windowless premises in which work is normally performed. The Committee requests the Government to indicate whether windowless premises exist where work is normally performed and, if so, to specify the provisions of the national legislation ensuring appropriate standards of hygiene in these premises.

Article 19. Dispensary or first-aid post. The Committee notes the Government’s reference to sections Lp. 263-1 and 263-2 of the Labour Code, according to which employers are required to organize an occupational health service, provided by one or more occupational physicians. The Committee recalls that, under Article 19, every establishment, institution, administrative service or department, having regard to its size and the possible risk, must maintain its own or a joint dispensary or first-aid post, or have one or more first-aid cupboards, boxes or kits. The Committee requests the Government to indicate the manner in which the provision of first aid is ensured in establishments, institutions, administrative services or departments to which the Convention applies.

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Application of the Convention in law and practice. The Committee refers to its previous comments in which it requested the Government to provide a detailed report that would enable it to evaluate the manner in which the Convention is applied in law and practice. The Committee notes, however, that the brief information contained in the Government’s report does not allow such an evaluation. The Committee therefore once again requests the Government to provide a detailed report indicating the provisions of the laws and regulations that give effect to each of the provisions of the Convention. The Government is also requested to provide a general appreciation of the application of the Convention in practice, including information on the number of workers covered by the relevant legislation, the number and nature of violations reported and the penalties imposed.

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Application of the Convention in law and practice. The Committee notes the information contained in the Government’s report. It recalls that in its previous comments, with a view to being able to assess the application of the Convention, it requested the Government to provide a detailed report indicating the relevant legislative texts and a general appreciation of the application of the Convention in practice. It notes that the Government has provided a simplified report containing information that does not provide a basis for such an assessment. The Committee therefore requests the Government to provide detailed information on the application of each of the specific provisions of the Convention in law and practice.

[The Government is asked to report in detail in 2014.]

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

The Committee notes the information contained in the Government’s report concerning the adoption of a national policy on occupational safety and health based on prevention, a new labour code (in particular Chapters II, Part VI of Book 2 concerning occupational safety and health) as well as Law No. 2009-7 of 19 October 2009 on occupational safety and health. Regrettably the Government did not attach copies of any of the referenced documents and the report submitted did not include a response to the questions and requests raised by the Committee in its most recent comment. In order to allow the Committee to evaluate how the Convention is applied in practice in New Caledonia, including as regards the application of Articles 14 and 18 of the Convention, the Government is requested to provide a detailed report indicating the relevant legislative texts and a general appreciation of the practical application of the Convention, in conformity with Part IV of the report form.

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The Committee notes with interest the information contained in the Government’s report concerning the adoption of a national policy on occupational safety and health based on prevention, a new labour code (in particular Chapters II, part VI of Book 2 concerning occupational safety and health) as well as Law No. 2009-7 of 19 October 2009 on occupational safety and health. Regrettably the Government did not attach copies of any of the referenced documents and the report submitted did not include a response to the questions and requests raised by the Committee in its most recent comment. In order to allow the Committee to evaluate how the Convention is applied in practice in New Caledonia, including as regards the application of Articles 14 and 18 of the Convention, the Government is requested to provide a detailed report indicating the relevant legislative texts and a general appreciation of the practical application of the Convention, in conformity with Part IV of the report form.

[The Government is asked to report in detail in 2012.]

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1. The Committee notes the information contained in the Government’s report, including answers to its previous comments. The Committee notes with interest that, since its last direct request in 1993 concerning the application of Articles 1, 5, 9, 10, 12, 14, 16, 18 and 19 of the Convention, several legislative texts have been adopted, which seem to give effect to many of those Articles, including deliberations No. 432 of 3 November 1993, on work medicine, No. 433 of 3 November 1993, on a system for the price setting of accidents, No. 547 of 25 January 1995, on protection against ionizing radiations, No. 548 of 25 January 1995, regarding security training (modifying deliberation No. 84/CP of 1989), No. 395/CP of 19 April 1995, on the recognition of occupational illness, No. 266/CP of 17 April 1998, on hygiene and safety integration in building conception, and No. 323/CP of 26 February 1999 regarding general rules on prevention of chemical risks. The Committee also notes that, in many specific answers to the Committee’s comments, the Government refers to additional modifications in progress. In order to allow the Committee to evaluate how the Convention is applied in practice in New Caledonia at the moment, the Government is requested to provide a detailed report indicating the relevant legislative texts and a general appreciation of the practical application of the Convention, in conformity with Part IV of the report form. The Committee would also like to draw the Government’s attention to the following points.

2. Article 14. Seats for all workers. The Committee notes that the Government’s reports are silent on measures taken or envisaged to ensure that a seat is at the disposal of every worker covered by the Convention, whether or not the work related is compatible with a sitting position, and that they have a reasonable possibility of using it. The Committee reiterates its request to provide information on measures taken or envisaged in this regard.

3. Article 18. Protection against vibration. The Committee notes the Government’s information indicating that preventive and informative actions are increased in the joinery, the building and the public work sectors, and that they are subject to special medical surveillance. However, the Committee notes the Government’s statement indicating that no legislation has been adopted regarding protection against vibrations, mainly due to difficulties to conceive text implementing appropriate measures. The Committee would like to remind the Government that these measures might include appropriated individual protection devices and the distribution of soundproof helmets. In this context, the Government may wish to take into account the legislation of European countries that have ratified the Convention and adopted measures for protection against vibrations. Please provide information on measures taken or envisaged in this regard.

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With reference to its previous comments, the Committee notes with interest the information provided in the Government's latest report and the adoption of Deliberation No. 34/CP of 23 February 1989 concerning general safety and health measures which gives effect to Articles 8, 11, 13, 15 and 17 of the Convention.

I. Article 1. The Committee notes that section 1 of Ordinance No. 85-1181 of 13 December 1985 concerning general principles of labour law and the organization and functioning of the labour inspectorate and the labour tribunal excludes the public service from the scope of application of the relevant legislation. The Government is requested to indicate the manner in which the Convention is applied to the public service.

II. The Government is requested to provide further information on the following points in its next report:

1. Article 5. The Government is requested to indicate the manner in which the employers' and workers' organizations concerned have been consulted with respect to Deliberation No. 34/CP concerning general safety and health measures, in conformity with this Article of the Convention.

2. Article 9. The Committee notes that sections 93-95 of the Deliberation provide that enclosed areas at the workplace must be sufficiently lit to ensure workplace safety. The Government is requested to indicate the measures taken to ensure that, as far as possible, the workplaces are lit with natural light.

3. Article 10. The Government is requested to indicate the measures taken to ensure that a comfortable and steady temperature is maintained at the workplace.

4. Article 12. The Committee notes that section 5(1) of Deliberation No. 34/CP provides that a decree shall determine the general measures concerning, inter alia, the supply of wholesome drinking-water. The Government is requested to indicate whether any decree has been issued in this regard or any other measures taken or envisaged to ensure the supply of wholesome drinking-water at the workplaces covered by the Convention.

5. Article 14. The Committee notes that section 77 of the Deliberation provides that sufficient and suitable seats shall be provided for workers when the work is compatible with a sitting position or semi-sitting position. The Government is requested to indicate the measures taken to ensure that seats are made available to all workers covered by the Convention, regardless of whether the work is compatible with a sitting position, and that these workers are given reasonable opportunity to use them.

6. Article 16. The Government is requested to indicate the measures taken to ensure appropriate standards of hygiene for underground or windowless premises in establishments covered by the Convention under Article 1.

7. Article 18. The Committee notes with interest that section 90 of Deliberation No. 34/CP calls generally for measures to be taken to protect workers from the dangers of noise and that Decree No. 8015-T of 2 December 1991 for the protection of workers against the harmful effects of noise provides detailed protective measures. The Government is requested to indicate the measures taken to ensure that vibrations are also reduced as far as possible, in accordance with this Article of the Convention.

8. Article 19. The Government is requested to indicate the measures taken or envisaged to ensure that all workplaces covered by the Convention, having regard to size and possible risk, are equipped with first-aid cupboards, boxes or kits, dispensaries, or that dispensaries or first-aid posts are maintained at the workplace or jointly with other establishments, in accordance with this Article of the Convention.

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The Committee notes from the information supplied in the Government's report that Ordinance No. 82-1114 of 23 December 1982 has been abrogated by Ordinance No. 85-1181 of 13 November 1985 concerning principal directives of labour law. It further notes that Ordinance No. 85-1181 provides only very general provisions concerning health and safety. The Committee hopes that specific texts will be adopted in the very near future to ensure full applications of Articles 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Convention, and requests the Government to indicate the measures taken in this regard.