Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Social Policy (Non-Metropolitan Territories) Convention, 1947 (No. 82) - French Polynesia

The Committee notes the Government’s report received in August 2008 in reply to the direct request of 2005. The Government includes an explanation concerning the scope of modifications notified at the time of ratification of the Convention by France relating to the application of Articles 3(3), 4, 8(b) and 18(2) of the Convention (ILO, Official Bulletin, 31 December 1954, Vol. XXXVII, No. 7, pages 371–372). The Government indicates that it wishes to maintain the modifications brought in to Article 3(3) and Article 18(2) of Convention No. 82, but would accept to discuss the continuation of the modifications to Articles 4 and 8(b). The Government considers that the modifications to Article 3(3) should be maintained since they enable the situation to be avoided where technical and financial assistance from the central administration remains merely optional. However, it indicates that, in view of the autonomy in the performance of their duties now enjoyed by civil servants in the administration of French Polynesia, the modifications to Article 4 are not relevant to the current situation. According to the Government, these modifications sought to prevent the initiatives referred to in Article 4 of the Convention being concerned with the political functioning of the public services. In addition, the Government indicates that the continuation of the amendment to Article 8(b), which is designed to reiterate the importance of the balance between constraints on economic developments in general (particularly tourism), links with the land and agricultural development, merits discussion in so far as the constraints relating to balanced and sustainable development are currently at the focus of public action. As regards the modifications to Article 18(2), the Government maintains that they are necessary because the provision of the Convention would clash with the content of section 2 of Act No. 86‑845 of 17 July 1986 relating to the general principles of labour law and to the organization and functioning of the labour inspectorate and labour tribunals in French Polynesia, which provides, inter alia, that “origin, sex, pregnancy, family situation, membership or non-membership of an ethnic group, political opinion, trade union activity and religious convictions may not be taken into consideration with regard to an offer of employment, recruitment or a contract of employment” and that “any provision or act to the contrary shall be deemed null and void”. The Committee recalls that, under the terms of Article 18(2) of the Convention, “all practicable measures shall be taken to lessen, by raising the rates applicable to the lower paid workers, any existing differences in wage rates due to discrimination by reason of race, colour, sex, belief, tribal association or trade union affiliation”. In no way does this seek to authorize any kind of discrimination; on the contrary, it aims to reduce the differences in wage rates which might result from any discrimination that could continue to exist despite the prohibition. In this respect, the Committee recalls that it recognized in its General Survey on equal remuneration (ILC, 72nd Session, 1986) that “the incorporation of the principle of equal remuneration into national law … is an important undertaking to ensure its application to all workers within the scope of the law” but that “further steps are, however, needed to translate the principle into practice”. Hence, even though section 2 of Act No. 86-845 of 17 July 1986 prohibits any form of discrimination in an employment relationship, inequalities may continue, as borne out by the direct request of 2005 on the application of the Equal Remuneration Convention, 1951 (No. 100), in French Polynesia, in which the Committee noted the information supplied by the Government indicating that the hourly wage for women was lower than that for men in all age groups. In addition, the Committee observes that section 17 of Act No. 86-845 of 17 July 1986 recognizes the continuing existence of certain inequalities despite the prohibition on discrimination since it provides for the possibility of taking temporary measures “solely for women with the intention of establishing equality of opportunity for men and women, particularly by rectifying de facto inequalities which affect opportunities for women”. Finally, even though the Government states that it wishes to maintain the modifications concerning Article 18(2), the Committee notes that the content of this provision of Convention No. 82 already appears to be covered by the matters raised in the direct request relating to Convention No. 100. The Committee requests the Government to continue to report on the policies designed to apply a social policy primarily directed to the economic development of French Polynesia (Article 2 of the Convention) and to state whether changes in local conditions have actually made it possible to renounce the modifications to Articles 4 and 8(b) of the Convention.