Unemployment Provision Convention, 1934 (No. 44) - French Polynesia

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments: C.37 observation; C.38 observation; C.42 observation; and C.44 observation.

Previous comments: C.37 observation; C.38 observation; C.42 observation; and C.44 observation.

In order to provide a comprehensive overview of the issues relating to the application of the ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 37 (invalidity insurance, industry), 38 (invalidity insurance, agriculture), 42 (occupational diseases) and 44 (unemployment provision) together in a single comment.

Article 9(1)(a) of Conventions Nos 37 and 38. Disqualification from entitlement to benefits. For many years, the Committee has been indicating to the Government that section 34(1) of Resolution No. 74-22 of 14 February 1974, which provides for the possibility of the disqualification of an insured person from entitlement to benefits in the event that the invalidity is the result of inexcusable misconduct, exceeds the cases of disqualification set out in Article 9(1)(a) of the Conventions. Article 9(1)(a) of the Conventions provides that the right to benefits may only be forfeited or suspended in whole or in part if the person concerned has brought about the invalidity by a criminal offence or wilful misconduct.

In its report, the Government indicates that the Social Welfare Fund has been informed of the Committee’s comments. The Committee notes with concern that section 34(1) of Resolution No. 74-22 of 14 February 1974 has not been amended. The Committee therefore urges the Government to take all the necessary measures without delay to amend section 34(1) of Resolution No. 74-22 of 14 February 1974 in order to bring it into conformity with Article 9(1)(a) of the Conventions.

Article 2 of Convention No. 42. Diseases considered to be occupational diseases. For many years, the Committee has been drawing the Government’s attention to the need to update the schedules of occupational diseases established by Decree No. 925 CM of 8 July 2011 to ensure full compliance with Article 2 of the Convention. The Committee notes the Government’s indication that the procedure for the revision of the schedules is under consideration. In this regard, the Committee recalls that, in order to ensure full compliance with Article 2 of the Convention, the Government needs to adopt measures to: (a) ensure that the diseases and types of poisoning listed in the schedule in Article 2 of the Convention are not limited by the symptoms and pathological manifestations appearing in the left-hand column of the schedules contained in Decree No. 925 CM of 8 July 2011; (b) consider as occupational diseases those resulting from poisoning by all the halogen derivatives of hydrocarbons of the aliphatic series (Schedule No. 12); and (c) include among the types of work likely to cause primary epitheliomatous cancer of the skin any processes involving the handling or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances (Schedules Nos 16bis and 36bis).

The Committee notes with concern that the amendment of the schedules of occupational diseases contained in Decree No. 925 of 8 July 2011 is a longstanding issue. The Committee urges the Government to take all the necessary measures without delay to ensure that the national legislation is in full conformity with Article 2 of the Convention.

Article 1(1) of Convention No. 44. Establishment and implementation of a system of unemployment protection. For many years, the Committee has been drawing the Government’s attention to the need to establish a system of protection against involuntary unemployment with a view to giving effect to Article 1(1) of the Convention. In this regard, the Committee notes that, under the terms of clause 4 of the agreement to bring an end to the dispute concluded by the unions and the President of French Polynesia on 29 November 2021, the Government undertook to establish on 1 January 2023 an assistance fund for employed persons who have involuntarily lost their employment. The Committee expresses the firm hope that the Government will continue to adopt the necessary measures to establish and maintain an unemployment protection scheme which provides persons who are involuntarily unemployed with a benefit or an allowance, or a combination of a benefit and an allowance, as envisaged in Article 1(1) of the Convention. The Committee requests the Government to provide information on the progress made in the establishment of the assistance fund for workers who have involuntarily lost their employment.

The Committee has been informed that, on the basis of the recommendations of the Tripartite Working Group of the Standards Review Mechanism (the SRM Tripartite Working Group), the Governing Body has decided that Member States that are currently bound by Conventions Nos 37 and 38 should be encouraged to ratify the most recent instruments, namely the Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128), and accept the obligations of Part II, or the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting Part IX (see GB.328/LILS/2/1). Moreover, Member States currently bound by Convention No. 42 should be encouraged to ratify the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part VI. Finally, Member States which are currently bound by Convention No. 44 should be encouraged to ratify the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part IV. The Committee therefore encourages the Government to give effect to the decision adopted by the Governing Body at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider the ratification of Conventions Nos 102 (Parts IV, VI and IX) or 121, 128 (Part II) and 168, which are the most up-to-date instruments in this field.

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

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1(1) of the Convention. Establishment and implementation of a system of unemployment protection. The Committee recalls that for many years (and most recently in 2007) it has been drawing the Government’s attention to the need to establish a system of protection against involuntary unemployment.

In this respect, the Government indicates that, following a study on the establishment of an unemployment insurance fund, two preliminary draft texts have been prepared and would provide the basis for the payment of an unemployment allowance for six months, financed equally from employers’ contributions, contributions based on wages and the financial contribution of French Polynesia. The two preliminary draft texts have been sent to the social partners and the one that is selected will be the subject of a tripartite discussion before being submitted to the Economic, Social and Culture Council for its opinion and to the Assembly for a vote. The Government is awaiting the response of the social partners, who need to agree on the establishment of such a scheme.

The Committee notes these developments and hopes that, in its next report, the Government will be in a position to indicate progress made towards bringing national legislation into conformity with the Convention. Please provide a copy of any relevant text that is adopted in this regard.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

For many years, the Committee has been drawing the Government’s attention to the need for suitable measures to compensate the involuntary unemployed. Although the principle of assisting workers who have involuntarily lost their jobs was established by Act No. 86-845 of 17 July 1986, Decision No. 91-029 AT of 24 July 1991 on placement and employment, the procedures for applying it were not such as to enable compliance with the obligations arising from the Convention. In its last report, the Government indicates that the measures taken so far to implement the abovementioned texts and which established work of general interest (CIG) has been revoked and replaced by National Law No. 2006-07 of 20 February 2006 introducing an “agreement for integration through activity” (CPIA) which, however, has the same features as the CIG and cannot, according to the Government’s report, legally be considered as establishing assistance for workers involuntarily deprived of their employment. Grant of the CPIA could in theory be prevented where funds are exhausted or unavailable or in the absence of a body to deal with jobseekers. Nevertheless, according to the Government’s report, all applications to the Employment, Training and Vocational Integration Service have in practice been met and there has been no request from the social partners for an unemployment insurance system to be established.

The Committee takes note of this information. It observes that, like the CIG, the CPIA is one of a set of employment assistance measures to facilitate recruitment, particularly of workers who have lost their jobs involuntarily, and to provide them with an allowance when they carry out an activity for a particular body (private sector company, branch of the administration, public establishment, commune or association). The Committee recalls that by accepting the obligations under the Convention, the Government committed itself to establish and implement an unemployment protection scheme that provides the involuntary unemployed with benefit, or an allowance, or a combination of benefit and allowance, as required by Article 1, paragraph 1, of the Convention. The Committee is bound to observe, as did the Government, that like the texts it replaced, National Law No. 2006-07 of 20 February 2006 establishing the CPIA does not establish a scheme that is in conformity with the Convention, i.e. either a compulsory insurance scheme, or a voluntary insurance scheme, or a combination of compulsory and voluntary insurance schemes, or any of these alternatives combined with a complementary assistance scheme. Furthermore, the Convention also provides that the scheme must cover all persons to which the Convention applies, namely all persons habitually employed for wages or salary, and must not allow any of these to be denied the benefit of the scheme because funds are lacking. The Committee would draw the Government’s attention once again to Article 9 of the Convention, under which entitlement to receive benefit or an allowance may be made conditional upon the acceptance of employment on relief works organized by a public authority. It also points out that the Convention does not seek to protect all jobseekers, but only those who have lost their employment. Thus, Article 6 of the Convention allows the right to receive benefit or an allowance to be made contingent on the completion of a qualifying period. In these circumstances, the Committee hopes that the Government will be able to reconsider this matter and that it will indicate the measures taken or envisaged to give full effect to the provisions of the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

For many years, the Committee has been drawing the Government’s attention to the need to adopt regulations establishing arrangements to give effect to the principle of assistance to persons who are involuntarily unemployed, as set out in section 48 of Act No. 86-845 of 17 July 1986 and section 18 of Resolution No. 91-029 AT of 24 July 1991 respecting placement and employment. In its last report, the Government states that on 8 February 2001 the Assembly of French Polynesia adopted Resolution No. 2001-22 APF establishing work of general interest (CIG). This work of general interest is intended to provide an allowance in exchange for work by any worker who has involuntarily lost her or his employment and who is fit for work and is seeking work, as well as for any person over 30 years of age who has been unemployed for over six months. The Government adds that this allowance, which is not subject to any qualifying period or waiting period, is granted for a period of eight months.

The Committee takes note of this information. It notes that the CIG, which forms part of a series of employment assistance measures, has the objective of allowing the recruitment of workers who have involuntarily lost their jobs and of providing them with an allowance when they perform work for a recruiting entity (private sector enterprise, administrative service, public establishment, commune or association). The Committee recalls that, to give effect to the Convention, an unemployment protection scheme has to be established ensuring to persons who are involuntarily unemployed either a benefit, an allowance, or a combination of benefit and allowance, in accordance with Article 1, paragraph 1, of the Convention. The Committee notes, from the information provided by the Government, that Resolution No. 2001-22 APF establishing work of general interest does not appear to correspond in nature to the system envisaged by the Convention in Article 1, paragraph 2, under which the scheme may be a compulsory insurance scheme, a voluntary insurance scheme, a combination of compulsory and voluntary insurance schemes, or a compulsory or voluntary insurance scheme combined with a complementary assistance scheme. Furthermore, under the terms of Article 2 of the Convention, the scheme under which allowances are paid has to cover all the persons to whom the Convention applies, namely all persons habitually employed for wages or salary. In this respect, the information provided by the Government does not indicate that any person who is involuntarily unemployed could automatically benefit from an allowance within the context of the CIG. The Committee also wishes to draw the Government’s attention to Article 9 of the Convention, under which the right to receive an allowance may be made conditional upon the acceptance of employment consisting of relief works organized by a public authority. In these conditions, the Committee hopes that the Government will be able to re-examine this matter and that it will indicate the measures which have been taken or are envisaged to give full effect to the Convention. It recalls in this respect that the Convention is not intended to protect all persons seeking employment, but only those who have lost their employment. In this context, the terms of Article 6 of the Convention allow the right to receive benefit or allowance to be made conditional upon the completion of a qualifying period.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

For many years, the Committee has drawn the Government's attention to the need to adopt regulations determining the modality of implementing the principle of assistance to persons who are involuntarily unemployed, as set out in section 48 of Act No. 86-845 of 17 July 1986 and section 18 of Resolution No. 91-029/AT of 24 July 1991 pertaining to placement and employment. The Committee notes with regret that, according to the information supplied by the Government, the territorial assembly of French Polynesia has still not adopted the abovementioned regulations. In these circumstances, the Committee can do no more than remind the Government once again that in the absence of a text implementing the principle of assistance to workers who are involuntarily unemployed, application of the Convention is not ensured. It again expresses the hope that the Government will take all necessary measures to adopt in the near future regulations laying down the modality for assistance to persons who are involuntarily unemployed, including those partially unemployed, and that the regulations will make it possible to give effect to all the provisions of the Convention. The Committee requests the Government to send a copy of the regulations as soon as they are adopted.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee refers to the comments it has been making for several years on the need to adopt regulations determining the modality of implementing the principle of assistance to persons who are involuntarily unemployed, as set out in section 48 of Act No. 86-845 of 17 July 1986, of which the provisions were repeated in sections 18 to 20 of resolution No. 91-029/AT of 24 July 1991 pertaining to placement and employment. In its report, the Government indicates that the system of assistance to workers who are unemployed must be subject to a resolution by the territorial assembly but that the discussions begun on this subject in 1989 have been broken off. After mentioning certain differences of opinion between occupational groupings of employers and certain trade union organizations, it adds that the question should be addressed again in the near future by the High Committee on Employment, Occupational Training and Social Welfare, along with the possibility of also establishing assistance for partial unemployment for employees of firms suffering momentary difficulties.

The Committee notes this information. It recalls that in the absence of texts implementing the principle of assistance for unemployment, application of the Convention is not ensured. Consequently, it expresses the hope that the territorial regulations determining the modality of implementing the right to assistance for unemployment, including partial unemployment, will be adopted in the near future and that they will take due account of the Convention. More specifically with reference to the opinion of occupational groupings of employers, most of whom consider that assistance to unemployed workers must be active, of limited duration and accompanied by temporary work or occupational training, the Committee wishes to draw attention specifically to Articles 8 and 9 of the Convention. The Committee states that under Articles 8 and 9, the right to receive benefit or an allowance may be made conditional upon attendance at a course of vocational or other instruction and upon the acceptance of employment on relief works organized by a public authority.

[The Government is requested to supply a detailed report in 1996.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee refers to the comments that it has been making for several years, in which it pointed out the need to take appropriate measures to compensate persons who are involuntarily unemployed. It notes from the Government's reply that the territorial regulations determining the modality of implementing the principle of assistance to persons who are involuntarily unemployed, as set out in section 48 of Act No. 86-845 of 17 July 1986, have not yet been adopted. The Committee points out in this connection that in the absence of texts to implement the principle of assistance in the event of unemployment, the Convention is not applied. In these circumstances, the Committee is bound once again to express the hope that the regulations determining the modality of implementing the right to assistance in the even of unemployment will be adopted in near future, in accordance with the Convention, particularly since, by virtue of section 126 of Act No. 86-845 of 1986, these regulations should have been published prior to 19 July 1987. Furthermore, the Committee hopes that the above regulations will, in accordance with Article 3 of the Convention, provide for payment of benefit or an allowance in cases of partial unemployment. It requests the Government to supply the text of the regulations as soon as they are adopted.

Direct Request (CEACR) - adopted 1988, published 75th ILC session (1988)

1. Article 1 of the Convention (Involuntary unemployment). With reference to its previous comments, the Committee notes the adoption of Act No. 88-845 of 17 July 1986, concerning the general principles of labour law and the organisation and operation of labour inspection and labour tribunals. It also notes that section 126 of this Act requires that regulations determining the modalities for application of the right to assistance to the involuntarily unemployed (section 48), should have been issued before 19 June 1987. The Committee hopes that these regulations have now been issued.

2. Article 3 (Partial unemployment). The Committee hopes that these regulations also give effect to this provision of the Convention (which provides that, in cases of partial unemployment, benefit or an allowance shall be payable to unemployed persons whose employment has been reduced in a way to be determined by national laws or regulations). It requests the Government to supply the list of the regulations with its next report.