Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - New Caledonia

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Article 1(1)(a) of the Convention. Discrimination based on sex. Sexist behaviour. Sexual and psychological harassment. Private and public sectors. The Committee notes with interest the adoption of the provisions aimed at combating sexist behaviour in Territorial Act No. 2023-3 of 26 May 2023 promoting substantive equality between women and men, which : (i) defines such behaviour as any related to a person’s sex, with the aim or effect of undermining the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment; (ii) provides for preventive measures in enterprises (including the appointment of one or more focal points to combat sexism at work in enterprises employing 11 or more employees); and (iii) requires that the texts that provide for the legal penalties incurred are displayed in enterprises. In addition, the Committee welcomes the extension of the list of protected employees whose dismissal is subject to administrative authorization to employees who have reported harassment or discrimination based on sex or for whom the prosecutor has decided to launch proceedings (new section Lp. 351-1 of the Labour Code of New Caledonia). With regard to fighting moral or sexual harassment, the Committee notes the Government’s indications concerning awareness-raising and information measures taken to promote a “zero tolerance” culture with regard to this behaviour in the private sector. With regard to the public sector, the Committee welcomes the adoption of Territorial Act No. 2021-4 of 12 May 2021 on the public service of New Caledonia, and its implementing resolutions which provide for the establishment of a joint technical committee for each public employer, to be consulted on all questions concerning the prevention of sexual and moral harassment. It also notes the Government’s indications that preventive actions are taken on a regular basis. The Committee requests the Government to take measures to disseminate among workers, employers and their organizations, and ensure compliance with, the provisions of Territorial Act No. 2023-3 of 26 May 2023 aimed at combating sexual and moral harassment, and sexist behaviour. It also requests the Government to provide information on: (i) the implementation of Territorial Act No. 2023-3 by employers; (ii) labour inspection activities in this regard, including the number, nature and outcome of cases identified or reported; and (iii) the establishment of joint committees in the public service under Territorial Act No. 2021-4 of 12 May 2021, and their actions against sexist behaviour and sexual or moral harassment.

Article 1(1)(b). Additional grounds of discrimination. With regard to the recent introduction to section Lp. 112-1 of the Labour Code of the prohibition of all discrimination based on the “exercise of a customary responsibility”, further to the adoption of Territorial Act No. 2018-3 of 28 May 2018, providing for leave for customary responsibilities, the Committee notes that the Government’s report indicates that an assessment of this provision revealed that no request has been made by employees for such leave and that no difficulties have been reported to the single customary council (Hoot Ma Whaap zone). The Committee requests the Government to continue to provide information on this matter, where possible.

Article 2. National policy on equality of opportunity and treatment without distinction based on race, colour, religion, political opinion, national extraction or social origin. The Committee notes that, according to the 2019 labour force survey (main results): (i) the employment rate has risen more sharply among the Kanak population (up 2.9 points over one year) than among the general population (up 1.1 points), due to the increase in the number of Kanak people in work; and (ii) a gap of 6.9 points remains in the employment rate for the general population. The Committee welcomes the information communicated by the Government on the results of the “Future Managers” scheme, particularly that: (i) 71 per cent of the beneficiaries of the “Future Managers” scheme are of Kanak origin (60 per cent are from the Loyalty Islands); and (ii) actions are being taken to promote access for the population of New Caledonia and especially the Kanak population to positions of responsibility in both the private and public sector. However, the Committee notes the concerns expressed by the United Nations Committee on the Elimination of Racial Discrimination (CERD) regarding: (i) discrimination against indigenous peoples in the overseas territories and at the fact that their rights, in particular their rights to land and to free, prior and informed consent, are not fully respected; and (ii) the barriers that indigenous peoples face in exercising their economic, social and cultural rights, including their rights to health and education; numerous difficulties that children face in accessing education in New Caledonia owing to, inter alia, the distance to schools, the shortage of teachers and the lack of cultural and linguistic diversity in curricula. It notes that CERD recommends that France: (i) intensify efforts to ensure the equal treatment of indigenous peoples compared to the rest of the population with regard to the enjoyment of economic, social and cultural rights, in particular the rights to health and education, taking into account the specific needs of each territory, as well as the cultural and linguistic diversity of indigenous peoples; and (ii) take the necessary measures to guarantee the right of indigenous peoples to own and use their lands, territories and resources, including by providing the requisite legal recognition and protection (CERD/C/FRA/CO/22-23, 14 December 2022, paragraph 15). The Committee requests the Government to continue to take specific measures to draw up and implement an effective policy on equality of opportunity and treatment without distinction based on race, colour, social origin, political opinion or religion, including legislative and administrative measures, and action plans and programmes providing particularly for measures against prejudices and stereotypes, and the promotion of tolerance and inclusion. With specific reference to the Kanak population, the Committee trusts that the measures taken will enable greater access to education and training at all levels, non-precarious employment and the different occupations, as well as the exercise of traditional activities and the necessary resources to that end. It requests the Government to continue to provide detailed information on the measures taken in this regard, and their outcome.

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Article 1 of the Convention. Protection against discrimination. Prohibited grounds of discrimination. Legislation. The Committee notes that in response to its request concerning grounds of discrimination listed in Article 1(1)(a) of the Convention (colour and social origin), the Government indicates that the wording of section Lp. 112-1 of the Labour Code of New Caledonia has not been amended. The Government’s report also states that: (1) reflection and discussion on the incorporation of the grounds of “colour” and “social origin” will be held; and (2) no proceedings have been brought based on section L. 225-1 of the Criminal Code, which covers “physical appearance” and the “particular vulnerability arising out of the worker’s economic situation, which is supposed or known to the perpetrator of the discrimination” in the area of employment and occupation. The Committee recalls once again 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. The Committee urges the Government to take the necessary measures, in consultation with the social partners, 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. Noting that the report is silent in this regard, the Committee reiterates its request to the Government to examine the possibility of extending the list of prohibited grounds of discrimination under the Labour Code of New Caledonia in order to align it with the list of grounds of discrimination which are prohibited in metropolitan France under the Labour Code, and thus to provide the same legal protection to all workers against discrimination in employment and occupation in France.

Article 2. Non-discrimination and equality of opportunity and treatment for women and men. Legislative development and practical measures. The Committee notes that, according to the Government’s report on the application of the Equal Remuneration Convention, 1951 (No. 100), the study of the New Caledonian labour market reveals that: (1) women are concentrated in 12 of the 87 occupational groups, which implies significant inequality in terms of the distribution by sector of activity; (2) women are over-represented in the lowest paid jobs and represent up to 98 per cent of domestic workers, household helpers, assistants and secretaries; (3) although more women than men hold graduate degrees (after four years of further education), men enter the world of work more easily; (4) women’s career development is curbed and they have more difficulty in accessing positions of responsibility; (5) women face considerably higher job insecurity than men; and (6) women’s economic activity slows significantly when they start a family, as the parental responsibility seems to weigh more heavily on mothers. In this regard, the Committee welcomes the detailed information communicated by the Government on the actions and measures taken to encourage gender diversity in training, occupational guidance and employment, reconciliation between family life and work life (the 2021 Interoccupational Act and agreement on teleworking, awareness-raising of nursing in the workplace), women’s entrepreneurship and, more generally, women’s empowerment, in the provinces of New Caledonia. At the legislative level, the Committee notes with interest the adoption, on 26 May 2023, of Territorial Act No. 2023-3 promoting substantive occupational equality between women and men, setting forth that, in enterprises of more than 50 employees, the employer must carry out an annual assessment of compliance with the obligation of substantive occupational equality in his or her enterprise and establish a plan of action to this end. This plan, the results of which are evaluated each year, is intended to support women’s access to employment, particularly to positions of responsibility, close the wage gaps between women and men occupying equivalent posts, raise awareness of equality, combat gender stereotypes, encourage gender balance in employment and improve reconciliation between family life and work life. The Act also contains provisions on parenthood (specific provisions concerning pregnant women and leave for fathers or the second parent of 11 days). Noting this significant legislative advancement, the Committee requests the Government to take specific measures to ensure compliance with and dissemination of the new obligations relating to gender equality set forth in Territorial Act No. 2023-3 promoting substantive occupational equality between women and men, and to provide information on its implementation and its impact on vocational training and employment for women at all levels, including Kanake women. It also requests the Government to continue and intensify its efforts to raise awareness among workers, employers and their organizations, and society as a whole, of gender equality and non-discrimination in employment and occupation, including the need to tirelessly fight against gender stereotypes and occupational segregation between women and men in the labour market.

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

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Article 1(1) of the Convention. Sexual and psychological harassment. Private and public sectors. In its previous observation, the Committee welcomed the adoption of the new legislative provisions on sexual and psychological harassment in the public and private sectors and requested the Government to provide information regarding their implementation in practice and how they were publicized. The Committee notes the Government’s report that several awareness-raising activities have been carried out regarding psychosocial risks and the quality of working life, during which the national laws on harassment were explained. The Committee notes the Government’s indication that a small number of cases of sexual harassment were reported by labour inspectors regarding sexual harassment (three in 2017) and psychological harassment (only one) and that the labour advisory service of the Labour and Employment Directorate (DTE) received a low percentage of individual complaints of sexual harassment (3.2 per cent in 2017), in comparison with the percentage of complaints of psychological harassment (59.2 per cent). The Committee recalls that a small number of complaints is not necessarily indicative of a low incidence of the phenomenon, but may be a result of: the difficulty of bringing this sensitive issue to the attention of the competent authorities (labour inspectors, the courts, etc.); a fear of reprisals, particularly of job loss; or even legal obstacles (burden of proof) and practical issues (the length and cost of proceedings). Lastly, the Committee notes that the issue of sexual and psychological harassment (definitions, applicable law, etc.) was addressed at a conference on occupational equality held in April 2018 by the Labour and Employment Directorate and the Observatory for Women’s Issues. The Committee requests the Government to continue and step up its efforts to publicize information on sexual and psychological harassment and promote among workers, employers, their respective organizations, administrative services responsible for labour issues, the labour inspectorate and magistrates a “zero tolerance” culture regarding harassment, in both the public and private sectors. The Government is also requested to continue to provide information on the reports of the labour inspectorate, the complaints received by the Labour and Employment Directorate, the legal proceedings initiated and their outcomes regarding sexual and psychological harassment.

Article 2. National policy on equality of opportunity without any distinction on the basis of race, colour, religion, political opinion, national extraction or social origin. The Committee recalls that it previously requested the Government to take measures to formulate and adopt an equality policy, without any distinction on the basis of race, colour, religion, political opinion, national extraction or social origin. The Committee notes the Government’s indication that the number of Kanak people in management positions has increased sevenfold in the last 30 years but that, more often than not, these positions are temporary or part-time. Furthermore, according to the same survey, their labour force participation rate remains six points lower than that of the population as a whole and their unemployment rate is seven points higher. The Government adds that analysis is being undertaken regarding regulation and a policy to support equality of opportunity and facilitate access to training and employment for members of the Kanak community. The Committee once again requests the Government to take measures to formulate and implement a genuine equality policy comprising not only legislative and administrative measures, but also policies or programmes of action, or for the establishment of specialized bodies in the areas of equality and non-discrimination, in accordance with Article 2 of the Convention. More specifically, the Committee encourages the Government to take initiatives to promote in the world of work equality of opportunity and treatment without any distinction on the basis of race, colour, social origin, political opinion or religion, particularly awareness-raising action on inclusion, tolerance and mutual respect. With specific reference to the Kanak population, the Committee trusts that the analysis undertaken will lead to specific measures to improve equality of opportunity and treatment in employment and occupation, and particularly access to training, non-precarious employment and the different occupations, including within the framework of the “Future Managers” programme. The Government is requested to supply detailed information on the measures taken in this regard and their results.

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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.

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Article 1(1)(b) of the Convention. Additional grounds of discrimination. Legislation. Referring to its observation, the Committee notes that the protection against discrimination enjoyed by workers in metropolitan France is more extensive than that accorded to workers in New Caledonia under its own Labour Code (section Lp. 112-1). The Labour Code applicable in metropolitan France (section L1132-1) prohibits discrimination on the basis of origin, sex, customs, sexual orientation or identity, age, family situation or pregnancy, genetic characteristics, particular vulnerability resulting from the apparent or known economic situation (of an individual), actual or supposed membership or non-membership of an ethnic group, nation or race, political opinions, activities in trade unions or mutual benefit associations, religious beliefs, physical appearance, family name, place of residence, state of health or disability. The Committee requests the Government to indicate the reasons why the protection of workers against discrimination in New Caledonia differs from that applicable in metropolitan France, and requests it to examine the possibility of extending the list of prohibited grounds of discrimination in employment and occupation in New Caledonia to align it with the list of grounds of discrimination which are prohibited in metropolitan France.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes that the Government of New Caledonia indicates that it is aware of the inequalities that women suffer. The Committee notes from New Caledonia’s report on the United Nations Convention for the Elimination of All Forms of Discrimination against Women (CEDAW/C/FRA/7-8/Add.1, 14 July 2014) that one of the areas of greatest concern in relation to discrimination against women in New Caledonia is employment and occupation; even when women are better qualified than men, they encounter greater difficulties in finding jobs due to the fact that they are directed towards low-growth sectors and occupations, and they occupy only a small percentage of positions of responsibility. The report also refers to the continuing precariousness of the situation of women, which has a negative impact on their education, training and occupational integration; the lack of sufficient action for native women; the lack of information, education and communication activities to promote a change in attitudes towards women and girls; and the lack of data disaggregated by sex, together with the crucial lack of qualitative and quantitative studies on women’s involvement in the development of New Caledonia. In this respect, the Committee notes that the Report on the Implementation of the Beijing Declaration and Platform for Action (April 2004) indicated that the Gender Observatory, created in 2006, should be restructured in 2015, in order to strengthen the production, analysis and dissemination of data disaggregated by sex. The Committee requests the Government to take the necessary measures to encourage girls and women to choose subjects that offer real possibilities for diverse employment, particularly in sectors and jobs traditionally occupied by men, as well as measures to improve women’s knowledge of their rights and to combat sexist stereotypes concerning their aspirations, preferences and skills. The Committee also requests the Government to provide specific information on the situation of women in employment and occupation in rural areas, and on any measures taken to improve their access to employment and to different occupations, and their outcomes. Please provide information on the research and analysis activities of the Gender Observatory with respect to employment and occupation.

Equality of opportunity and treatment without distinction on the basis of race, colour, religion, political opinion, national extraction or social origin. The Committee notes that the Government’s report does not contain information on this subject and merely indicates that no action has been taken on the points raised by the Committee with regard to discrimination. However, the Committee notes that, according to a study presented in August 2016 at the University of New Caledonia during a colloquium on “rebalancing employment”, the reduction in inequality in the access to employment for the Kanak people, whose employment rate is 22 percentage points lower than that of members of other communities, has been stagnating since 2009, despite the establishment of training programmes, such as “Future Managers”, which aims to enable those born in New Caledonia who already have work experience to gain access to middle- and higher-level management positions. The Committee requests the Government to take the necessary measures to prepare and adopt a policy to promote equality of opportunity and treatment, irrespective of race, colour, religion, political opinion, national extraction or social origin, including not only legislative and administrative measures, but also policies and platforms for action, as well as the establishment of specialized bodies to deal with equality and non discrimination in accordance with Article 2 of the Convention. The Committee requests the Government to provide information on the situation of the Kanak community in employment and occupation, and on any measure taken to improve their access to training and employment, to remedy de facto inequalities and to effectively promote equality in employment and occupation for all members of the population of New Caledonia.

Awareness-raising measures and enforcement. The Committee notes that the Government’s report indicates that no case of discrimination has been dealt with by the labour inspection services or brought to their attention. The Committee requests the Government to take measures to raise awareness among labour inspectors, magistrates, men and women workers, men and women employers and their respective organizations of issues relating to discrimination and equality in employment and occupation, and in particular of the new legislative provisions on sexual and moral harassment in the public and private sectors. Please indicate any measures taken in this regard and provide information on all cases of discrimination identified by labour inspectors or controllers or brought to their attention, and any relevant judicial decisions.

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Article 1 of the Convention. Prohibited grounds of discrimination. Legislation. The Committee refers to its previous comments regarding section Lp. 112-1 of the Labour Code of New Caledonia and notes that there have been no changes in this regard. Under the terms of section Lp. 112-1, “in respect of an offer of employment, recruitment or in the labour relationship, account shall not be taken of 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”. The Committee understands that the term “origin”, in the context of New Caledonia, is intended to cover the term “national extraction” within the meaning of the Convention, that is to say, place of birth or foreign origin. With regard to the scope of the provisions that prohibit discrimination, the Committee notes that they apply to “an offer of employment, recruitment or in the labour relationship”. The Committee recalls that, when legal provisions are adopted to give effect to the principle of the Convention, they should include, as a minimum, all the grounds of discrimination set out in Article 1(1)(a) of the Convention. The Committee requests the Government to take the necessary measures to include colour and social origin in the list of prohibited grounds of discrimination and to confirm that the prohibition of discrimination is applicable to all stages of employment. In the absence of legislation to this effect, the Committee also requests the Government to indicate the manner in which workers are protected in practice against discrimination on the basis of colour or social origin and the remedies that are available to them.

Sexual and moral harassment. Private and public sectors. The Committee notes with satisfaction the adoption of Territorial Act No. 2014-4 of 12 February 2014 containing various provisions relating to the right to work which supplement in the Labour Code of New Caledonia the provisions protecting against sexual harassment, including hostile work environment sexual harassment (section Lp. 115-1). The Committee also notes that the criminal penalties for acts of sexual harassment have been increased (section Lp. 116-3). With regard to the public sector, the Committee notes with interest the adoption of Territorial Act No. 2014-9 of 18 February 2014 on employment relations and the prohibition of sexual and moral harassment in the public sector, which covers moral harassment and the two main forms of sexual harassment (quid pro quo and hostile work environment) and establishes a system for the protection of victims and witnesses. The Act also sets out penalties (prison sentences and fines) for perpetrators of harassment and imposes a duty of prevention on employers. The Committee requests the Government to provide information on the measures taken or envisaged to inform workers, and particularly public sector employees, of the new provisions that are applicable to sexual and moral harassment, and to make employers and workers’ and employers’ organizations aware of these issues. It also requests the Government to provide information on the application in practice of Territorial Acts Nos 2014-4 and 2014-9, and particularly the role of the labour inspection services with regard to sexual and moral harassment, and any legal proceedings initiated on the basis of these provisions, and their outcome.

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

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Sexual harassment. The Committee welcomes the adoption of territorial Act No. 2001-5 of 17 October 2011 on employment relations and the prohibition of moral and sexual harassment at work, supplementing and amending the Labour Code of New Caledonia. However, as it emphasized in its previous comments concerning the territorial Bill, the Committee observes that the definition of sexual harassment contained in the Act (section Lp. 115-1 of the Labour Code) only covers one of the forms of sexual harassment, namely quid pro quo harassment, and omits acts which have the effect of creating an intimidating, hostile or humiliating working environment. While noting that Act No. 2011-5 also contains provisions setting out the “right of all employed persons to labour relations imbued with respect and exempt from any form of violence” (section Lp. 113-2 of the new Labour Code), the Committee considers that the legislative provisions adopted do not afford full protection against sexual harassment at work. In view of the specific nature of sexual harassment at work and the various forms that it can take, the Committee requests the Government to take the necessary measures to supplement the definition of sexual harassment contained in section Lp. 115-1 of the Labour Code of New Caledonia so as to include acts of a sexual nature which have the effect of creating an intimidating, hostile or offensive work environment. The Committee encourages the Government to take measures intended to increase knowledge of the new legislation prohibiting and addressing sexual harassment at work and to raise the awareness of workers, employers and their respective organizations on this issue. Please provide information on any cases of sexual harassment dealt with by the labour inspection services, as well as examples of the measures taken by employers with a view to preventing any acts of sexual harassment, in accordance with section Lp. 115-2 of the Labour Code.

Article 2 of the Convention. Equality of opportunity and treatment for men and women. The Committee notes that the Government’s report does not contain any information on this point. However, it observes that the study “Focusing on women” published in 2013 by the Employment, Skills, Wages and Training Observatory of the Skills Development Institute of New Caledonia on its website emphasizes that imbalances between men and women persist in relation to access to employment and that few women are yet appointed to managerial positions (28 per cent in 2011). Moreover, women are still concentrated in certain sectors, such as health, tourism, education and services. The Committee recalls that the traditional view of the role of women in society, and prejudices concerning their aspirations, preferences, capabilities and “predisposition” for certain types of jobs, have led to a gender-segregated labour market, with women being overrepresented in certain jobs and sectors. It is essential to combat these gender prejudices and stereotypes in both vocational training and access to employment so as to enable men and women to have access to a broader range of jobs and occupations offering career prospects and better remuneration. The Committee requests the Government to provide information on the measures adopted to combat gender prejudices and stereotypes and to promote the access of women to traditionally male training courses and jobs, and on the measures taken to encourage the access of women to managerial positions in the public and private sectors, and the results achieved.

Equality policy. The Committee once again notes that the Government’s report does not contain information on the measures taken to promote equality of opportunity and treatment in employment and occupation in practice, including access to education and vocational training and guidance, with a view to eliminating any discrimination on the grounds other than sex enumerated in Article 1(1)(a) of the Convention, and particularly race, colour and national extraction, in both the public and the private sectors. The Committee draws the Government’s attention to Article 2 of the Convention, pursuant to which each Member which ratifies the Convention undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in employment and occupation, with a view to eliminating any discrimination in respect thereof. The Committee once again requests the Government to provide information on the legislative, administrative and practical measures envisaged or taken, and on the policies and programmes planned or adopted to prevent discrimination, remedy de facto inequalities and promote effectively equality in employment and occupation.

Enforcement. Labour inspection. In the absence of information on this point in the Government’s report, the Committee once again requests the Government to provide information on the activities undertaken by labour inspectors and controllers with a view to preventing and combating discrimination in employment and occupation. Please also provide information on any cases of discrimination reported by labour inspectors or controllers or brought to their knowledge, and any court rulings on this subject.

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Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee refers to its previous comments concerning section Lp. 112-1 of the Labour Code of New Caledonia and recalls once again that, when national legislation gives effect to the Convention, it has to cover as a minimum all of the prohibited grounds of discrimination set out in Article 1(1)(a). The Committee therefore once again requests the Government to take the necessary measures to explicitly prohibit any discrimination in employment and occupation on the basis of colour, national extraction or social origin, in accordance with Article 1(1)(a) of the Convention, and to provide information on any measures adopted in this respect. The Committee requests the Government to indicate the manner in which workers are protected in practice against discrimination on the basis of colour, national extraction and social origin, and the remedies that are available to them in this regard.

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

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Article 1(1)(b) of the Convention. Additional grounds of discrimination. Noting that the Labour Code applicable in metropolitan France (section L1132 1) prohibits discrimination on the basis of origin, sex, lifestyle, sexual orientation or identity, age, family situation or pregnancy, genetic characteristics, actual or supposed membership or non-membership of an ethnic group, nation or race, political opinions, activities in trade unions or mutual benefit associations, religious beliefs, physical appearance, family name, state of health or disability, the Committee requests the Government to indicate whether it is planned to extend the list of prohibited grounds of discrimination to New Caledonia and if so, to align it to the list of grounds of discrimination which are prohibited in metropolitan France.

Discrimination on grounds of sex. Sexual harassment. The Committee notes that, according to the information provided by the Government, the territorial Bill on labour relations and the prohibition of moral and sexual harassment at work, which amends the Labour Code, has been submitted to the officers of the Congress of New Caledonia and that the text is ready to be submitted for approval by the members of the Congress. The Committee would however like to draw the Government’s attention to the fact that the definition of sexual harassment proposed in the Bill only covers one of the forms of sexual harassment, namely quid pro quo harassment, but omits acts that have the effect of creating an intimidating, hostile or humiliating work environment. The Committee therefore requests the Government to take the necessary measures to ensure that the territorial Bill on labour relations and the prohibition of moral and sexual harassment at work not only covers quid pro quo, but also hostile environment sexual harassment, and requests it to provide information on the progress made in the adoption of the Bill and the implementing regulations and provide a copy of these texts when they have been adopted. Noting the initiatives taken by the Government of New Caledonia to organize awareness-raising campaigns for workers, employers and their organizations, the Committee encourages the Government to intensify its efforts in this respect and, in particular, to take measures to improve knowledge of the legislation prohibiting and punishing sexual harassment in employment and occupation and the means of redress available to workers to assert their rights.

Article 2 of the Convention. Equality of opportunity and treatment for men and women. The Committee notes that the Government’s report does not contain a reply to its previous comment and that the study by the Employment, Skills, Wages and Training Observatory of the Skills Development Institute of New Caledonia (August 2009), to which it refers, was not attached to its report. The Committee once again asks the Government to provide information on the measures adopted or envisaged to encourage the access of women to managerial posts in the public sector, and their impact. It also requests it once again to provide labour market statistics disaggregated by sex, economic sectors and different levels of responsibility, and to attach a copy of the 2009 study referred to above.

Equality policy. The Committee notes that the Government’s report does not contain information on the specific measures taken to promote equality of opportunity and treatment in employment and occupation, including with regard to access to education, training and vocational guidance with a view to eliminating any discrimination on the grounds, other than sex, enumerated in Article 1(1)(a) of the Convention, particularly race, colour and national extraction, in the public and private sectors. The Committee draws attention to Article 2 of the Convention, providing that each Member which ratifies the Convention undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. The Committee requests the Government to provide information on the legislative, administrative and practical measures envisaged or adopted, and on the policies and programmes envisaged or adopted with a view to preventing discrimination, remedying de facto inequalities and promoting effectively equality in employment and occupation.

Enforcement. Labour inspection. The Government indicates that no violations of sections Lp. 112-1 and Lp. 622-1 of the Labour Code (prohibiting discrimination) have been reported by the officials responsible for supervising the application of the legislation (labour inspectors and controllers). While noting this information, the Committee requests the Government to provide information on any measure adopted or envisaged to reinforce the means and training of labour inspectors and controllers so that they are better able to identify and remedy cases of discrimination. It once again requests the Government to provide information on the activities undertaken by labour inspectors and controllers with a view to preventing and combating discrimination in employment and occupation.

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Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. In its previous comments, the Committee noted that section Lp.112 1 of the Labour Code provides that it is 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. It consequently requested the Government to indicate the measures taken or envisaged to include colour among the prohibited grounds of discrimination set out in the Labour Code, and to indicate whether the notions of “social origin” and “national extraction” are covered by one of the grounds set out in this section. The Committee notes the Government’s statement that no measure has been adopted or envisaged to include colour among the prohibited grounds of discrimination set out in section Lp.112-1 of the Labour Code, and that this section does not explicitly cover the notions of “social origin” and “national extraction”. Recalling that, where effect is given to the Convention by national legislation, it should cover as a minimum all the prohibited grounds of discrimination set out in Article 1(1)(a) of the Convention, the Committee requests the Government to take the necessary measures to ensure that any discrimination in employment and occupation based on colour, national extraction or social origin is explicitly prohibited and to provide information on any measure taken in this respect. In the absence of legislation on this matter, the Committee also requests the Government to indicate the manner in which workers are protected in practice against discrimination on the grounds of colour, national extraction or social origin.

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

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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.

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1. Sexual harassment. In its previous comments, the Committee noted that the Economic and Social Council, following its study on sexual harassment, had recommended that the Government provide more information for the general public and employers on this kind of discrimination at work and to reproduce the provisions of the Metropolitan Labour Code on sexual harassment in the local labour law. The Council also recommended that provision be made for administrative penalties, in addition to civil or penal sanctions, against public servants found guilty of sexual harassment. The Committee notes the Government’s indication that the legislation of New Caledonia on sexual harassment has not changed and is still the subject of a study. The Committee hopes that in this study the Government will take account of all the recommendations made by the Economic and Social Council. The Committee refers the Government to its general observation of 2002 on sexual harassment so that it can adopt the necessary measures in law and in practice to guarantee full protection against sexual harassment. The Committee requests the Government to continue to keep it informed on the progress made in revising the legislation on sexual harassment and hopes that any new provisions will contribute to the full application of the Convention. The Committee also asks the Government to supply information on the measures taken in practice to prevent sexual harassment.

2. Equal treatment and opportunity for men and women. In its previous comments, the Committee noted that the increase in the number of women in the most highly paid category of the civil service had not had any impact on women’s presence in higher management posts. The Committee notes from the Government’s last report that the proportion of women in the public sector decreased from 52 per cent (2004 Social Audit) to 49.7 per cent (2005 Social Audit). Moreover, the Committee notes that the proportion of women in the private sector appears to be on the increase since the Government indicated a figure of 37.9 per cent in its previous report but gives a figure of 41.6 per cent in its last report on the Equal Remuneration Convention, 1951 (No. 100). The Committee requests the Government to supply information in its next report on the proportion of women in the private and public sectors, including in higher management posts.

3. Application of the principles of the Convention to non-nationals. In its previous comments, the Committee noted that a legislative framework was being developed to protect foreign workers employed by enterprises established outside New Caledonia which provide services in the construction and civil engineering sectors. The Committee also noted that this legislative framework will include provisions on maternity protection and discrimination. The Committee once again asks the Government to supply information on progress made with regard to this legislative framework and hopes that the new provisions will contribute to the full application of the Convention.

4. Promoting and ensuring the application of the Convention. Labour inspection and courts of law. The Committee notes that no decisions have been delivered by the courts relevant to the application of the provisions of the Convention. The Committee notes that the labour inspectorate monitors equal treatment of men and women in the various categories of employment. The Committee requests the Government to supply information on any judicial or administrative decisions relating to equality of opportunity and treatment in employment and occupation. The Committee also asks the Government to provide further details of measures taken by the Labour Inspectorate to detect and address discrimination.

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1. Article 1 of the Convention. Sexual harassment. The Committee notes the Advice No. 2/2002 of the Social and Economic Council (SEC) concerning the study relating to sexual and moral harassment at work, highlighting that in New Caledonia the incidence of sexual harassment is significant but that the problem is widely ignored by society at large. The Committee notes that the SEC recommends that greater attention should be paid to informing the general public and employers about the issue. The SEC also envisages legislative measures to transcribe the provisions of the Metropolitan Labour Code concerning sexual harassment into local labour law and to provide administrative sanctions, in addition to civil and penal sanctions, against public servants guilty of sexual harassment. The Committee asks the Government to provide information in its next report on measures taken to follow up on the recommendations made by the SEC, and to report on the progress made.

2. Equality of treatment between men and women. The Committee notes from the "Social assessment of New Caledonia in 2004" (Bilan social 2004 de la Nouvelle-calédonie) annexed to the Government’s report on Convention No. 100, that women make up only 37.9 per cent of the private sector employees. It notes that, in the public sector, women outnumber men between the ages of 30 and 49 years but that they make up only 34.4 per cent of all civil servants aged 50 years and beyond. Furthermore, the report indicates that the increase of female employment in the highest category A appears to be due to the fact that an increasing number of women have been employed as schoolteachers. The Committee asks the Government to indicate in its next report the reasons behind the low percentage of women employed in the private sector and behind the fact that more women than men appear to leave the civil service once aged 50 or beyond. It encourages the Government to continue to collect and analyse statistics on the distribution of men and women in the various occupations and branches of the economy in both the public and private sectors, and include such information in its next report.

3. Application of the principles to non-nationals. The Committee notes that the Government is developing a legislative framework to protect foreign workers employed by enterprises established outside New Caledonia providing services in the area of construction and civil engineering. Noting that the draft law will include provisions concerning maternity protection and discrimination, the Committee asks the Government to keep it informed of any developments in this regard and to provide copies of the text of the relevant provisions.

4. Enforcement. Please provide information on the activities and methods used by the labour inspection services to promote and ensure the application of the principle of the Convention, and any judicial or administrative decisions concerning the principle of equality of opportunity and treatment in employment and occupation on the grounds set forth in the Convention.

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1. Article 1 of the Convention. Sexual harassment. The Committee notes the Government’s statement that only section 222-44 of the New Penal Code currently prohibits sexual harassment in employment and occupation. Noting that a study on sexual harassment in employment and occupation is currently being undertaken, the Committee requests the Government to provide information with its next report on the findings of this study and on any further measures taken or envisaged to prevent sexual harassment in employment and occupation.

2. Articles 1 to 5. Application in law and practice. Labour inspection. The Committee notes that under sections 22(2) and (3) and 25 of Organic Act No. 99-209 of 19 March 1999, New Caledonia has exercised competence since 1 January 2000 in the fields of labour law, labour inspection and the access of foreign nationals to work. The Committee requests the Government to provide information with its next report on the measures taken or envisaged in accordance with the new competences of New Caledonia to give effect to the principle of equality of opportunity and treatment in employment and occupation and to provide copies of any relevant legal texts or studies.

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The Committee notes the Government’s brief report for New Caledonia.

The Committee regrets to note that the Government has not provided sufficient information to enable it to assess the application in practice of the principle of equality of opportunity and treatment in employment and occupation. It therefore requests the Government to provide detailed information with its next report on the application in practice of the Convention, including the measures adopted or envisaged to ensure the principle of equality of opportunity and treatment in employment and occupation, supported by statistical information disaggregated by sex. It hopes that the Government will provide this information with its next report.

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Further to its previous direct request, the Committee notes the information supplied by the Government in its report and the various texts concerning measures to apply the policy for the training and social and occupational integration of young people.

1. The Committee notes that, according to the Government, as a result of the application of point No. 6 of the Matignon Agreements, signed on 26 June 1988, under which the imbalances in recruitment for the public service are to be redressed, greater account is taken of the ethnic diversity of the territory. It also notes that the programme "400 CADRES" aims to restore ethnic balance in the distribution of responsibilities in the territory. Lastly, it notes that the local missions for the integration of young people, defined in Act No. 89-905 of 19 December 1989, are implementing various measures to improve job seekers' access or return to employment and vocational training. The Committee refers to paragraph 247 of its 1988 General Survey on Equality in Employment and Occupation, and would be grateful if in its next report the Government would provide more detailed statistics of the distribution by sex and, if possible, by ethnic group, of persons who have already benefited from the programme "400 CADRES", from training in the various training centres and establishments and from the measures concerning training and social and occupational integration, including occupational integration contracts and adaptation period contracts.

2. It would also appreciate receiving statistics on the number of staff in the public service, public bodies and private enterprises, disaggregated, if possible, by sex, ethnic group, occupational category and sector. In this connection, it asks the Government to provide information on the specific measures taken to promote women's access to training, employment and posts of responsibility, and the results obtained.

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The Committee notes the information supplied by the Government in reply to its previous comments.

Articles 2, 3 and 4 of the Convention. The Committee notes the Government's statement that the policy pursued following the "Matignon Agreements" should make it possible to give full effect to the above Articles, although it is still premature to assess all the effects, and a more in-depth survey could be undertaken for the next report. The Committee hopes that the Government will supply full information in its next report on the application of Articles 2, 3 and 4 of the Convention.

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The Committee has taken note of the Government's first report on the application of the Convention and has also examined the legislation appended to it. The Committee requests the Government to communicate with its next report the text of the legislation applying to public servants and workers coming under a "public law statute" who are excluded from the scope of Ordinance No. 85-1181 of 13 November 1985, and to supply additional information on the following points:

- Article 1(a) of the Convention. Unlike this Article of the Convention, section 2 of Ordinance No. 85-1181 does not include "race" and "colour" among the grounds which must not be taken into consideration in offers of employment, recruitment and employment relationship. Please indicate the manner in which application of the principle of equality of opportunity and treatment in employment and occupation is guaranteed in these two cases.

- Articles 2 and 3. Please indicate the practical measures taken to implement the national policy to eliminate discrimination, advocated by the Convention and by the national legislation, and to encourage promotion of the principle of equality of opportunity and treatment, particularly with regard to: (a) access to vocational training, (b) access to employment and the various occupations, and (c) conditions of employment. The Committee would also like to receive particulars (including statistics) of the results of these measures in both the private sector and in jobs under the direct control of the national authorities, and of the manner in which the education and information of the public with regard to the policy against discrimination are ensured and encouraged.

- Article 4. Please indicate any legislative or administrative measures, as well as the national practice, governing the employment or occupational activity of persons legitimately suspected of engaging in activities prejudicial to the security of the State, or state where it is established that they do indeed engage in such activities, and to provide particulars of the recourse available to such persons.