Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Holidays with Pay Convention, 1936 (No. 52) - New Caledonia

The Committee notes the adoption of Act No. 2008-2 of 13 February 2008 concerning the Labour Code of New Caledonia (legislative part), and Decision No. 366 of 14 February 2008 concerning the Labour Code of New Caledonia (regulatory part).

Article 4 of the Convention. Prohibition of relinquishment of holiday with pay. The Committee notes that the new Labour Code contains no provisions to give effect to this Article of the Convention, unlike the old Overseas Labour Code, which, in section 122, provided that “any agreement providing for the grant of compensation in lieu of holiday shall be void.” It requests the Government to indicate the measures taken or envisaged to reflect this principle in the legislation.

Article 7. Records. The Committee requests the Government to provide further information on the provisions of laws or regulations requiring, as did section 171 of the old Overseas Labour Code, that every employer must keep a record showing the particulars of each worker, including in respect of holidays.

Part V of the report form. Practical application. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for example, extracts of reports by the inspection services indicating the number and nature of contraventions recorded and the penalties imposed, information on the number of workers covered by the legislation, etc.

The Committee takes this opportunity to recall that, on the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 were outdated and invited States parties to these Conventions to examine the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not regarded as fully up to date but remains relevant in some respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 for persons employed in all sectors of the economy, including agriculture, would automatically entail immediate denunciation of Conventions Nos 52 and 101 (Article 16(a) and(b)). This option would appear to be the more desirable as the relevant legislation in New Caledonia – which provides for two and a half working days of leave per month of service, with increments based on length of service – is plainly more advantageous than the requirements of Conventions Nos 52 and 101 and indeed reflects those of Convention No. 132, which establishes that the minimum holiday with pay for one year of service must be three working weeks. The Committee requests the Government to keep the Office informed of any decisions it might take regarding the possible ratification of Convention No. 132 and the consequential amendments that might be needed in order to bring the legislation into conformity with the provisions of that Convention.