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

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

Previous comment

Previous comment

The Committee notes the observations made by the Social Dialogue Council (CDS), attached to the Government’s report, and the replies to its previous comments under Article 3(2) of the Convention on the conditions governing the operation of private employment agencies; Article 10 on the procedures for the investigation of alleged abuses and fraudulent practices; and Article 12(a), (b), (d), (e) and (g) on the responsibilities of private employment agencies and user enterprises.

Articles 1(1) and 3 of the Convention. Definition of private employment agencies, their services and activities. Consultation with the most representative organizations of employers and workers. The Government reiterates that the Labour Code of New Caledonia currently governs the activities of temporary employment agencies (section Lp.124-1 et seq. Of the Labour Code). Within the framework of the reform of the employment services, a study is under way regarding the possibility that private employment agencies: (i) match job offers and demands without being involved in any employment relationship; and (ii) ensure other services related to jobseeking. The Committee requests the Government to keep it informed of any legislative developments that would broaden the scope of legislation in order to enable private employment agencies to perform the above-mentioned activities. The Committee once again requests the Government to indicate whether the representative employers’ and workers’ organizations are consulted on the legal status of the above agencies as part of the current reform of the employment services.

Article 1. Scope of application. The CDS observes that temporary employment has now been extended to middle-management staff through wage portage enterprises established outside the national territory. The CDS indicates that New Caledonia law does not cover the activities of these enterprises, except in relation to the arts. The Committee notes that, in general, wage portage activities are distinct from employment activities in the broad sense, insofar as it is only the worker in the portage enterprise who is responsible for contacting potential clients, while the Convention concerns agencies that provide one or several of the services relating to the labour market. Recalling that the scope of application of the Convention is defined in Article 1(a), (b) and (c) of the Convention, the Committee requests the Government and the CDS to provide further information on the legal status and name of these wage portage services established abroad to be able to determine whether the Convention is applicable to them.

Article 5(1). Non-discrimination. In accordance with section Lp. 112-1, prohibition of discrimination applies to the Labour Code in its entirety, irrespective of the method of recruitment or the contract type. The prohibition of discrimination covers any consideration in the employment offer, recruitment or employment relationship, of origin, sex, pregnancy, family status, real or supposed belonging or non-belonging to an ethnic group, nation or race, political opinion, trade union activity, disability or religion. The Committee notes with interest that, following the adoption of Territorial Act No. 2018-3 of 28 May 2018 establishing leave for customary responsibilities, the prohibition of discrimination based on the exercise of customary responsibilities was introduced into section Lp. 112-1.

The Committee notes that the Government has not taken advantage of this reform to extend the list of prohibited grounds of discrimination in employment and occupation in New Caledonia, by aligning it with the list of grounds of discrimination which are prohibited in metropolitan France, but indicates that the Criminal Code, which is applicable in metropolitan France and New Caledonia, covers the same grounds of discrimination as in France. With reference to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee once again requests the Government to examine the possibility of extending the list of prohibited grounds of discrimination in employment and occupation in New Caledonia, in order to avoid any legal uncertainty based on any interpretation of the legislative provisions by the courts.

Article 5(2). Special services designed to assist the most disadvantaged workers. The Government reports that a reform of the public employment services is under way, aimed at supporting the most disadvantaged workers in their job search. The Government highlights that this project is included in the shared social agenda for 2021–22, drawn up in consultation with the social partners. The Government also reports that a draft Act on substantive occupational equality between women and men has been submitted to the Congress of New Caledonia. Various measures are being taken to support the inclusion of the most disadvantaged through the delivery of vocational training and the introduction of provisions on social inclusion in public contracts. In this regard, resolution No. 424 of 20 March 2019 allows, under certain conditions, for public contracts to be attributed to accredited employment inclusion services, without calls for competition. The Committee notes this information with interest but requests the Government to specify whether, to what extent and how private employment agencies, including temporary employment agencies, participate in or collaborate with special services or programmes designed to assist the most disadvantaged workers to find employment. In addition, the Committee reiterates its request to 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. In its previous comment, the Committee requested the Government to indicate any developments regarding the implementation of the new provisions of Act No. 78-17 of 6 January 1978, as amended, on data processing, files and freedoms. The Government indicates that it adopted a circular of 11 December 2019, of which it provides a copy. The Committee notes that, following Act No. 78-17, data protection impact assessments must, in certain cases, be carried out. The new circular sets out the form, content and terms for carrying out data protection impact assessments. The Government adds that data protection is ensured by data protection officers within enterprises and the authorities. Up until September 2021, the National Data Processing and Liberties Commission provided online training to data protection officers and any person concerned with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The Committee requests the Government to provide updated information on the measures taken or envisaged to protect workers’ personal data, including within the framework of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

Article 8(1). Protection of migrant workers. In New Caledonia, workers, including migrant workers, in principle fall under the application of the provisions of the Labour Code (section Lp. 111-1) with an exception relating to the construction of mining infrastructure. The Committee notes the Government’s indication that the Labour Code governs the activities of employees employed by a foreign enterprise in the construction of mining infrastructure in New Caledonia, irrespective of the Act applicable to the employment contract (section Lp. 621-1). Without specifying whether the most representative employers’ and workers’ organizations have been consulted in this regard, the Government indicates that the provisions of this section guarantee the social rights of the workers concerned in terms of working hours, safety and health, wages and benefits, staff representation and works doctor, and that the New Caledonian labour inspectors must ensure compliance therewith (sections Lp. 622-1 to Lp. 623-1). While taking due note of this information, the Committee nevertheless requests the Government to indicate whether consultations were held with the most representative employers’ and workers’ organizations to determine the legal regime applicable to the above-mentioned foreign enterprises.

Article 8(2). Bilateral agreements. The Government indicates that it has not concluded any bilateral agreements to prevent abuses and fraudulent practices in the recruitment, placement and employment of migrant workers. The Government adds that the administrative procedure to be followed in New Caledonia for the recruitment of a foreign employee helps to prevent and combat all forms of abuse or fraudulent practices. While highlighting that the conclusion of bilateral agreements is the most successful means of improving the protection of New Caledonian workers deployed abroad, the Committee takes due note of this information and requests the Government to keep the Office informed of any progress made in the conclusion of such agreements in the future.

Article 11. Measures to ensure adequate protection for workers employed by private employment agencies. The CDS observes that there is a higher rate of job insecurity among temporary workers compared to other workers. For example, they must have paid contributions for nine months in order to receive benefits from the compensation fund for families, occupational accidents and worker protection of New Caledonia (CAFAT). As temporary employment contracts cannot exceed six months, temporary workers are in practice deprived of CAFAT benefits, despite the contributions deducted. The CDS adds that stakeholders in the temporary employment sector have been campaigning for 25 years for the introduction of a supplementary insurance scheme from which they could benefit. For the CDS, the issue of insurance, which would allow employees to access healthcare, additional training and social protection, must be examined in further depth with regard to temporary employment. The Committee requests the Government to provide its comments on the observation of the CDS alleging a lack of adequate and effective protection of employees of temporary employment enterprises, particularly with regard to CAFAT benefits.

Article 14(2) and (3). Supervision and adequate remedies. Application of the Convention in practice. The Committee notes that the document, the 2018 employment review, communicated by the Government, indicates that there were ten temporary employment enterprises in New Caledonia in 2018 that employed 18,288 temporary employees and concluded 20,106 contracts with 4,688 user enterprises. The Government attaches to its report the labour inspection activity reports, indicating that they do not enable the identification of violations of the provisions of the Convention, and states that it does not have statistical data in this respect. Labour inspectors are empowered to enter all workplaces in which the provisions they must enforce are applicable. The Government also reports that there are very few disputes and court rulings in the area of temporary employment. There have in fact been no rulings on the application of the Convention since the submission of the Government’s first report in 2017. The Government reiterates that where a temporary employment enterprise has not fulfilled its obligation relating to declarations or financial guarantees, and there is a serious risk of harm to the employee as a result, the labour inspector may refer the matter to the courts if a warning has not been successful. The courts may subsequently order the closure of the temporary employment enterprise for a maximum of two months (section Lp. 124-21 of the Labour Code). The Government adds that violations of the provisions of the Labour Code concerning temporary work are punishable by a penalty, ranging from a fine of 447,500 CPF francs (or 895,000 CFP francs in the case of a repeated offence) to six months imprisonment (section Lp. 128-2 of the Labour Code). The Committee takes due note of this information. It nevertheless considers that, given the vulnerability of the workers concerned, the low number of disputes before the labour inspection bodies or the courts is not necessarily indicative of the absence of difficulties in the application of national legislation. Under these conditions, it could be useful to conduct a field study aimed at identifying the potential challenges concerning the application of the legislation for this category of workers. The Committee requests the Government to keep it informed of any measures taken or envisaged in the future in this regard.

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

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.