Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Private Employment Agencies Convention, 1997 (No. 181) - New Caledonia

Articles 1(1)(a) and (c) and 3 of the Convention. Services provided by the agencies covered by the Convention. The Committee notes the information provided in the Government’s first report on the application of the Convention. The Government indicates that the current Labour Code of New Caledonia (CTNC) does not contain any provisions regulating private employment agencies. It indicates that such agencies are not provided for in the legislation and that no enterprise aims to provide services for matching offers of and applications for employment, without the private employment agency becoming a party to the employment relationships which may arise therefrom. The Committee notes that the Government’s report does not refer to the provision of the direct employment services set out in Article 1(1)(c) of the Convention. Referring to Article 1(1) of the Convention, the Committee recalls that the Convention provides that a private employment agency may provide three types of service: services for matching offers of and applications for employment, without the private employment agency becoming a party to the employment relationships which may arise therefrom; services consisting of employing workers with a view to making them available to a third party, who may be a natural or legal person, which assigns their tasks and supervises the execution of these tasks; and other services relating to jobseeking, determined by the competent authority after consulting the most representative employers’ and workers’ organizations, such as the provision of information, that do not set out to match specific offers of and applications for employment. The Committee requests the Government to indicate the manner in which effect is given to Article 1(a)–(c) of the Convention, in relation to the operation of these three types of private employment agencies. The Committee also requests the Government to indicate whether private employment agencies are authorized to offer other services relating to jobseeking within the meaning of Article 1(1)(c) of the Convention. If so, the Committee requests the Government to indicate the representative employers’ and workers’ organizations consulted in this regard.

Article 3(2). Conditions governing the operation of private employment agencies. Although the Government has not provided information on this matter, the Committee notes that, under section Lp. 124-12 of the CTNC, temporary employment agencies may only operate after making a declaration to the administrative authorities. In its 2010 General Survey on employment instruments, paragraph 240, the Committee indicated that, by virtue of Article 3(2) of the Convention, the conditions governing the operation of private agencies shall be determined under a licensing or certification system, but may also be otherwise regulated or determined by national law and practice. Therefore, member States have to take action, either directly through the system of legislation, licensing or certification or, indirectly, by authorizing an existing national practice or one that is to be established. The Committee requests the Government to provide detailed information on the conditions governing the operation of private employment agencies and, in particular, to indicate whether a certification system has been established. If so, it requests the Government to provide information on this subject.

Article 5(1) and (2). Measures to promote equality. Special services designed to assist the most disadvantaged workers. The Government indicates that, under section Lp. 112-1 of the CTNC, it is prohibited to take into account in offers of employment, recruitment and the employment relationship, origin, sex, pregnancy, family situation, genuine or assumed belonging to an ethnic, national or racial group, political opinion, trade union activity, disability or religious beliefs. It indicates that this section applies throughout the CTNC, irrespective of the recruitment method or type of contract. The Government indicates that, within the framework of specific action linked to the closure of a large work site or an economic entity of a certain size, public employment services may implement support operations for workers who will lose their jobs, in order to assist them in their search for employment. It indicates that these operations may be outsourced to a private operator. The Committee refers to its 2016 comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and requests the Government 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. The Committee also requests the Government to supply information regarding the nature and scope of the special services or targeted programmes implemented by private employment agencies, including temporary employment agencies, to assist the most disadvantaged workers in their jobseeking activities. The Committee also requests the Government to indicate the measures taken or envisaged to encourage private employment agencies to provide services to disadvantaged workers.

Article 6. Processing of personal data. The Government indicates that the protection of personal data is covered by national legislation and, more specifically, Act No. 78-17 of 6 January 1978, as amended, on data processing, files and freedoms. It adds that the Act establishes the principles to be respected during the collection, processing and storage of personal data and that it applies to all types of file. The Committee notes that this Act was amended by Act No. 2018-493 of 20 June 2018 on the protection of personal data. The Committee requests the Government to indicate any developments regarding the implementation of Act No. 78-17 of 6 January 1978, as amended, and to provide a copy of the Act.

Article 8(1) and (2). Protection of migrant workers. The Government indicates that migrant workers are in principle covered by the CTNC under section Lp. 111-1. However, it adds that, under sections Lp. 621-1, Lp. 622-1 et seq. of the CTNC, there is an exception for works to construct mining infrastructure in the context of the provision of an international service. The Government indicates that section Lp. 622-1 of the CTNC establishes the principles applicable to workers who are recruited, irrespective of the law applicable to their employment contract. The Committee requests the Government to provide further information on the protection of temporary workers in the framework of this exception and to indicate whether the most representative employers’ and workers’ organizations were engaged in prior consultations in this regard. The Committee also requests the Government to indicate whether bilateral agreements have been concluded to prevent abusive and fraudulent practices in recruitment, placement and employment.

Article 10. Procedures for the investigation of complaints, alleged abuses and fraudulent practices. The Government indicates that the labour tribunal is the competent authority to hear all disputes relating to labour relations. The Committee requests the Government to describe the machinery and procedures for the investigation of complaints regarding the activities of all private employment agencies, including temporary employment agencies.

Article 12(a),(b),(d),(g) and (i). Responsibilities of private employment agencies and user enterprises. The Government indicates that, during the assignment, the user enterprise is responsible for the conditions governing the execution of the work and its conformity with the legal framework with regard to working time, night work, weekly rest, public holidays, occupational safety and health, and the work of women, children and young persons. It adds that the requirements regarding occupational health are the responsibility of the temporary work agency. The Committee notes that special medical supervision, where necessary, is at the expense of the user enterprise under section Lp. 124-27 of the CTNC. The Committee requests the Government to indicate the manner in which responsibilities are allocated between private employment agencies and user enterprises with regard to collective bargaining, minimum wages, statutory social security benefits, access to training, compensation in the event of occupational accidents or diseases, maternity protection and benefits, and parental protection and benefits.

Article 14(2) and (3). Adequate remedies. The Government indicates that the supervision of the application of all the provisions of the CTNC is ensured by the labour inspectorate (Book VII of the CTNC). It adds that section Lp. 124-21 of the CTNC provides that, when a temporary employment agency does not fulfil its obligation to make a declaration or provide financial guarantees resulting in a serious risk of prejudice for the temporary worker, the labour inspector may refer the matter to the courts following an unanswered formal demand. This section provides that the court may order the closure of the establishment for a period of no longer than two months. The Committee requests the Government to provide detailed information on the supervision of the application of the provisions that give effect to the Convention and on the adequate remedies provided for in the case of violations of the provisions of the Convention.

Application of the Convention in practice. The Committee notes with interest the court rulings provided by the Government regarding the application of the Convention. Furthermore, in an order of the Court of Appeal of Nouméa from 9 November 2011, a temporary contract was reclassified as a permanent contract. Furthermore, in a ruling of 23 July 2010, the labour tribunal ruled that temporary contracts may not be used on a long-term basis for a position related to the normal and permanent activity of a user enterprise. The Committee notes that, in 2017, temporary employment agencies employed 18,477 temporary workers. The Committee requests the Government to provide court rulings related to the application of the Convention. It requests the Government to provide general information on the manner in which the Convention is applied, including extracts from labour inspection reports and, if such statistics exist, information on the number of workers protected by the measures that give effect to the Convention.