Texts of pending comments

Article 2 of the Convention. Inclusion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to continue providing information on any legislative changes that could have an impact, and on the application in practice of the Convention at the national level. The Committee notes the detailed information provided by the Government on developments in public procurement law since 2016, in particular the entry into force on 1 April 2019, of the Public Procurement Code, which brings together in a single legal corpus all rules governing public procurement contracts. It also notes the modernization of the general administrative clause specifications applicable to public procurement (CCAGs). There are now six CCAGs, approved by Orders of 30 March 2021 with simultaneous entry into force on 1 April 2021. However, with regard to the effective application of the fundamental requirements of the Convention, which consists in the inclusion of labour clauses of the type provided under Article 2 of the Convention, the Government indicates that the essential requirement provided under Article 2 of the Convention is met under the legislative provisions and regulations in force. In any event, these provisions require that any enterprise must comply with the labour law applicable where the contract is performed and allow a public authority, through application of the CCAG clauses, to terminate a public contract in case of violation of a worker’s labour rights. Nevertheless, the Committee draws the Government’s attention to paragraph 45 of its 2008 General Survey on labour clauses in public contracts, which specifies that “… the mere fact of the national legislation being applicable to all workers does not release the States which have ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention”. The Committee also specified that, “as regards the content of labour clauses, the Convention provides that they should ensure to the workers concerned wages, hours of work and other conditions of labour which are not less favourable than those established by collective agreement, arbitration award, or national laws, for work of the same character in the trade or industry concerned in the district where the work is performed. Where the conditions of labour are not regulated by any of these means in the district where the contract is executed, reference must be made to the nearest appropriate district where such means are used, or the general level of conditions of work observed in the trade or industry in which the contractor is engaged by employers whose general circumstances are similar” (paragraph 21). Recalling that the Convention requires that labour clauses with very specific content be expressly included in public contracts effectively signed between the public authority and the selected entrepreneur, the Committee expects the Government to take all measures necessary to bring the national legislation into full conformity with the essential requirements of the Convention without further ado. The Committee requests the Government to keep the Office informed of progress made and reminds the Government that it can, if it so wishes, avail itself of the technical assistance of the ILO in this regard.

The Committee notes the observations of the French Democratic Confederation of Labour (CFDT) and the Management Confederation of France-General Confederation of Managers (CFE-CGC) received on 6 and 8 September 2021 respectively, which relate to the issues examined in the present direct request. The Committee also notes the Government’s comments thereon.

Collective bargaining and the COVID-19 pandemic. The Committee notes the Government’s information on the measures taken in 2020 to support the continuation of collective bargaining during the health crisis and to enable the social partners to deal with the urgent situations created by the COVID-19 pandemic. The Committee notes in this respect that: (i) an exceptional mechanism for shortening certain deadlines for the conclusion and extension of collective agreements relating to the consequences of the health crisis was put in place; and (ii) this mechanism was applicable only to company and branch agreements whose exclusive purpose was to deal with the social, economic and financial consequences of the pandemic and it ceased to apply on 10 October 2020.

Article 4. Promotion of collective bargaining in small enterprises. In its previous comment, the Committee had noted the observations of the General Confederation of Labour Force Ouvrière (CGT–FO) and CFE–CGC denouncing that the reforms of the collective bargaining and social dialogue mechanisms adopted on 22 September 2017 had significantly extended the possibility of concluding collective agreements without the participation of trade union organizations, particularly in small enterprises. On the basis of these observations and the corresponding Government responses, and having recalled that negotiation with non-union actors should only be possible in the absence of trade union organizations at the relevant level, the Committee had requested the Government to: (i) specify the modalities enabling workers in enterprises with fewer than 11 employees and in enterprises with between 11 and 20 employees without elected staff representatives to negotiate collectively their working conditions through trade union organizations, if they so wished; and (ii) indicate the action taken to promote collective bargaining within the meaning of the Convention in small enterprises.

The Committee notes in this respect the Government’s indications that: (i) in enterprises with 11 to 20 employees, it is always possible, in the absence of an elected staff representative, to negotiate an agreement with one or more employees expressly mandated by one or more representative trade union organizations (Article L. 2232-23-1 of the Labour Code); (ii) even if the appointment of a trade union delegate (who, under French law, has the capacity to negotiate and conclude a collective agreement as long as his or her organization is sufficiently representative) is only expressly envisaged by the Labour Code for enterprises with at least 50 employees, the branches may set the number of employees in enterprises from which trade union delegates may be appointed. They can therefore provide for the possibility of appointing a trade union delegate in companies with fewer than 50 and even fewer than 20 employees if they consider it appropriate in the light of the trade union context in the branch; and (iii) a trade union organization can also negotiate in all small companies through the representative of the trade union section. Trade union organizations can in fact set up trade union sections in small companies under the conditions set out in Article L. 2142-1 of the Labour Code. Article L. 2143-23 of the Labour Code authorizes the representative of the trade union section to negotiate, in the absence of a trade union delegate in the company or establishment, company or establishment agreements if he or she is mandated by his or her trade union organization.

The Committee notes that the Government then provides information on the use in 2020 of the various methods of concluding collective agreements in small enterprises (apart from those agreements concluded specifically on employee savings). In this respect, the Government states that: (i) in companies with fewer than 50 employees in general, 19 per cent of the agreements concluded were signed by trade union delegates, 17.7 per cent were signed by elected staff representatives and employees mandated by a trade union organization, 20.7 per cent by elected staff representatives not mandated by a trade union organization, while 41 per cent were directly adopted by staff vote by a 2/3 majority; (ii) focusing the scope to companies with less than 21 employees, 72.9 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority; and (iii) further focusing the scope to companies with less than 11 employees, 89 per cent of the agreements concluded were directly adopted by staff vote by a 2/3 majority.

The Committee also notes the additional information provided by the Government concerning: (i) the organization every four years of an election to measure the audience of trade union organizations in enterprises with fewer than 11 employees, in accordance with Article L. 2122-10-1 of the Labour Code, which, according to the Government, is likely to encourage the establishment of trade union organizations within these companies; and (ii) the existence of departmental observatories for analysis and support for social dialogue and negotiation, in which the trade union organizations are involved and which aim to encourage and promote collective bargaining in companies with fewer than 50 employees.

The Committee further notes the observations of the CFDT and the CGC-CFE. The Committee first notes that the CFDT wishes to nuance the Government’s assertion on the possibilities of trade union establishment in small enterprises insofar as other provisions of the Labour Code would, on the contrary, aim to prevent this. The Committee notes that the CFDT states in this respect that: (i) since 2017, trade union organizations are no longer automatically informed of the organization of elections for staff representatives in enterprises with 11 to 20 employees, which clearly limits their possibility of establishing themselves in these companies; (ii) even if the mandating by a trade union organization of an employee for the purposes of collective bargaining remains possible in enterprises with fewer than 50 employees without a trade union delegate, the employer now has the option of choosing other modalities for concluding collective agreements with non-union actors (negotiation with elected staff representatives when they exist ; in the absence of elected staff representatives in companies with up to 20 employees, submission by the employer of a proposal to a vote of the employees); and (iii) the employer does not inform the trade union organizations of its intention to negotiate a collective agreement in the company, which makes it very difficult to take initiatives to mandate employees for the purpose of collective bargaining.

The Committee also notes the position expressed by the CGC-CFE, which in turn criticizes agreements concluded by direct employee approval of a proposal made by the employer in companies with up to 20 employees. The trade union organization states that this mechanism does not give rise to genuine collective bargaining and that the conditions for a balanced debate between the employer and his employees are not met. The Committee notes in this respect the Government’s comments that: (i) the system of mandating employees of small enterprises by trade union organizations for the purpose of collective bargaining was very rarely used before the 2017 reform, which left many small enterprises without the possibility of negotiating and concluding collective agreements; (ii) collective bargaining in small and very small enterprises is generally of an informal nature; (iii) a qualified majority of employees is required for the approval of the agreement proposed by the employer envisaged by Articles L. 2232-21 to L. 2232-23 of the Labour Code; and (iv) under the same provisions, employees have a period of 15 days to express their opinion on the employer’s proposal and have the possibility to seek advice from the departmental observatory for analysis and support of social dialogue and negotiation.

The Committee takes note of these different elements. It first notes the information provided by the Government on the possibilities of collective bargaining through trade union organizations in small enterprises, including enterprises with fewer than 20 and fewer than 11 workers. The Committee also notes the divergent opinions of the Government and the trade unions on the effectiveness of measures to promote collective bargaining within the meaning of the Convention in small enterprises and on the mechanism for reaching an agreement through the approval by a 2/3 majority of the workers of a proposal submitted by the employer. The Committee also notes the allegations of the trade union organizations that, under Articles L. 2232-23 and L. 2232-23-1 of the Labour Code, in the event of the presence in the enterprise of an employee mandated by a trade union organization for the purposes of collective bargaining, the employer would have the choice of either negotiating with the latter or resorting to the other methods of concluding collective agreements provided for in the Labour Code in small enterprises and not involving trade union actors.

The Committee notes from the above that, under the legislation in force since 2017, there are three main ways of concluding collective agreements in small companies, each subject to specific rules and conditions: (i) the conclusion of an agreement with one or more trade union delegates or one or more employees mandated by a trade union organization; (ii) the conclusion of an agreement with one or more elected staff representatives not mandated by a trade union organization; and (iii) the approval of an employer’s proposal by a direct vote of the employees of the company by a two-thirds majority. The Committee notes that the first method is in line with Article 4 of the Convention, according to which collective bargaining takes place between employers and employers’ organizations on the one hand, and workers’ organizations on the other. With regard to the second modality, the Committee recalls, as indicated in its previous comment, that direct negotiation with elected staff representatives should only be possible in the absence of trade union organizations at the relevant level. As regards the third modality, the Committee considers that the adoption by a direct vote of the employees of a proposal by the employer does not have the characteristics of a collective bargaining mechanism within the meaning of the Convention. On the basis of the above, the Committee requests the Government to: (i) clarify whether, in a small enterprise where there is an employee mandated by a representative trade union organization for the purpose of collective bargaining, the employer may freely choose another method of concluding a collective agreement (negotiation with non-mandated elected staff representatives where they exist; submission by the employer of a proposal to a vote of the staff in the absence of elected staff representatives in enterprises with up to 20 employees); (ii) continue to provide statistics on the use of the different ways of concluding collective agreements in small enterprises; and (iii) continue to provide information on measures to promote collective bargaining between the employer and workers’ organizations in small enterprises.

In the context of the previous point, the Committee had also noted in its last comment that, following the reforms introduced by the ordinances of 22 September 2017, company agreements not signed by a trade union organization, particularly in companies with fewer than 50 employees and including those resulting from an employer’s proposal submitted to a vote of the employees, were able to set aside, on a significant number of subjects open to collective bargaining, clauses more favourable to employees established in branch agreements negotiated and signed by representative trade union organizations. Stressing that this option was not consistent with the obligation to promote collective bargaining enshrined in Article 4 of the Convention, the Committee had requested the Government to: (i) provide information on the frequency and extent in practice of derogations from higher-level collective agreements resulting from enterprise agreements signed by elected staff representatives or directly adopted by staff vote; and (ii) to take, in consultation with the representative social partners, the necessary measures to review the power of derogation from higher-level agreements enjoyed by agreements signed by non-union actors.

The Committee notes that the Government states that the Ministry of Labour does not have information on the number of company agreements signed by elected staff representatives or adopted through a direct vote by the workforce that derogate from branch agreements. However, the Government refers to a study published in 2021 by the Institute for Economic and Social Research (IRES) on collective bargaining practices and the articulation of branch and company agreements after the ordinances of 22 September 2017 in four different branches that concluded that: (i) the possibilities of derogation offered by the ordinances still appear to be little used by companies in the branches studied, with the exception of the Building and Public Works branch; and (ii) except in situations of strong economic or employment constraints, this possibility of mobilising derogatory practices also presupposes a key element: the existence of a negotiation dynamic within companies and the possibility of constructing give and take agreements.

The Government adds that during the health crisis caused by the COVID-19 pandemic, alternative procedures for concluding agreements enabled small companies to cope with the consequences of this crisis by benefiting from the “long-term partial activity scheme”, which was only accessible through a collective agreement. In companies with fewer than 20 employees, the vast majority of these agreements were adopted through a direct vote of employees.

The Committee notes that for its part, the CFE-CGC expresses its concern about the fact that agreements without prior negotiation allow for a substantial and potentially downward modification of the working conditions of employees in small enterprises. The trade union adds that interim evaluation report on the 2017 ordinances published by France Stratégie in 2020 is, in this respect, not reassuring. The CFE-CGC states that, according to this report, a third of 233 agreements with respect to overtime that were examined aimed to reduce the wage increase for overtime. The Committee notes the Government’s response in this regard, indicating that the contextual elements necessary to assess the importance of the rights and compensations granted by these agreements are missing.

The Committee notes the divergent interpretations of the trade union organizations and the Government and the difficulty of obtaining, at this stage, specific statistics on the extent and frequency of the use of the options for derogation recognized to collective agreements concluded by non-union actors. The Committee notes, however, that the Government does not provide any information on whether its request to revise the said opt-out has been taken into account. The Government states that the possibility of derogation recognized to collective agreements concluded through alternative procedures is necessary to enable small enterprises, where trade union presence is very weak, to benefit from the same capacity as large enterprises to adapt the law.

While noting that collective bargaining is indeed a fundamental adapting tool at the disposal of enterprises and sectors, the Committee again stresses that under Article 4 of the Convention, governments are required to promote bargaining between an employer, employers or their organizations on the one hand and workers’ organizations on the other. In these circumstances, the Committee reiterates that it considers that the setting aside of the protective clauses of collective agreements negotiated by representative trade union organizations through agreements concluded by non-union actors is not in conformity with the obligation to promote collective bargaining enshrined in Article 4 of the Convention. The Committee therefore requests the Government once again to take, in consultation with the representative social partners, the necessary measures to review the possibility enjoyed by agreements signed by non-union actors to derogate from protective clauses contained in higher-level agreements negotiated by trade unions. The Committee requests the Government to provide information on any progress in this regard.

Promotion of collective bargaining. Platform workers. The Committee notes the examination by Parliament of the Bill ratifying Ordinance No. 2021484 of 21 April 2021 on the modalities of representation of self-employed workers using platforms for their activity and on the conditions for exercising this representation and empowering the Government to supplement through an ordinance the rules organising social dialogue with platforms. The Committee requests the Government to provide information on the results of this examination and on the adoption of any text concerning the exercise of the rights recognized by the Convention by platform workers, regardless of their contractual status.

The Committee notes the observations of the General Confederation of Labour Force Ouvrière (CGT–FO). It requests the Government to provide its comments in this regard.

Article 2 of the Convention. Measures to attract nursing personnel to the profession and to retain them. In response to its previous comments, the Committee notes the statistics provided by the Government for 2003–13. The Committee refers however to the recent publication by the Directorate for Research, Studies, Evaluation and Statistics (DREES) on “healthcare establishments” (DREES 2021), which provides a more up-to-date synthesis of the main available data on French healthcare establishments, and notes that the number of nurses increased by 23 per cent between the end of 2003 and the end of 2018. Nursing personnel as a percentage of total staff also increased, from 24.1 per cent to 26.1 per cent over the same period. The percentage of auxiliary healthcare workers (21.1 per cent at the end of 2018) and of administrative personnel (10.8 per cent at the end of 2018) as a proportion of total hospital personnel remained broadly stable for 15 years. With regard to the distribution of nursing personnel throughout the national territory, the Committee notes, according to DREES 2021, at national level, public health establishments accounted for 60 per cent of hospital beds and places, non-profit private establishments for 15 per cent and profit-making private clinics for 25 per cent. This distribution is however very unequal across the departments. With regard to reforms, the Committee notes the information provided by the Government in respect of demographics, teaching and training, those actively engaged in the profession, career and remuneration and international cooperation for the recognition of occupational qualifications and authorization to practice allowing international mobility of nurses (general and specialized health care). In particular, it notes that nursing personnel have benefited generally from the “Professional development, career and remuneration” (PPCR) protocol, which has resulted in a rebalancing of remuneration in favour of index-related wages (a measure referred to as “bonus-points transfer”), and a revaluation over several years (between 2016 and 2020) of wage scales, with an average increase of around 12 index points. The Government indicates, moreover, that plans to develop status and benefits are in progress. These include the creation, in autumn 2019, of a special status for advanced-practice auxiliary medical workers. The exercise of advanced practice was included in a specific section of the Act of 26 January 2016 modernizing the health system, and its development was reaffirmed as a means of improving career prospects. It will initially concern only nursing personnel, as the diploma and exercise of advanced practice were recognized in France in 2018. As a complement to recognition of advanced practice, a new allowance was to be put in place in the summer of 2019 to reward engagement by healthcare workers in the inter-professional cooperation protocols established under Act No 2009-879, of 21 July 2009 on reforming the hospital and relative to patients, health and the territories (the HPST Act). In this regard, the CGT–FO observes that the establishment of a category of “advanced-practice nurses” looks like a crutch to prop up organized medical shortages. According to the CGT–FO, these specialized nurses will be paid lower wages than doctors and will be called on to perform and take full responsibility for medical acts, in a structure that has not been designed accordingly. The Government further indicates that implementation of the agreement of 2 February 2010 was completed on 1 September 2017, with the reclassification of the body of re-education workers and the body of electro-radiology technicians within Category A of public hospital personnel. The reclassification was optional for a six-month period, during which time the professionals could choose between their revalued status as a body under Category A or their previous status as a body under Category B, which was being phased out, with maintenance of their early retirement rights. In this connection, the CGT–FO observes that the option to choose between early retirement and thus turning down an increase in wages in a profession where wages were already very low, is additional proof of the difficulties encountered by nurses that the Government was not trying to solve. The Committee requests the Government to continue providing detailed and up-to-date information on the impact of recent reforms, in particular regarding employment and working conditions, including on career prospects and remuneration which are likely to attract persons to the nursing profession and retain them in it (Article 2(2)(b)).

Article 5. Consultation with nursing personnel on decisions concerning them. In response to the Committee’s previous comments, the Government indicates that trade unions are involved at local level in developments concerning internal organization of services. These phases of dialogue involve consulting the various groups of personnel, including the nursing personnel represented on the establishments’ technical committees and on the health, safety and working conditions committees. Employment and working conditions require obligatory consultations with these bodies. The Government adds that healthcare establishment professionals, including nurses, can benefit from support provided through mediation. In its observations, the CGT–FO refers to the creation of the “Nursing Order”, membership of which became compulsory in 2016, to point out that this measure simply increases the unattractiveness of the profession, and weakens the representation of nursing personnel, who are largely opposed to such membership. The Committee requests the Government to provide information on the content and development of the support procedure for nurses implemented through mediation. The Government is also requested to provide examples of consultations held with the social partners on issues covered by the Convention.

Article 7. Occupational safety and health. The Government indicates that French occupational safety and health legislation does not provide for specific measures aimed at improving the working conditions (as regards health, safety and security) of nursing personnel. However, the Labour Code provides that certain workers exposed to particular occupational hazards (asbestos, lead, ionising radiations, etc.) must be covered by a reinforced medical follow-up, the form of which is determined by the occupational physician. Nursing personnel may therefore, according to their function, benefit from this follow-up. Moreover, the occupational physician in charge of the multidisciplinary occupational health team can request authorization from the director of the establishment to seek the aid of persons or bodies “with the competences required to prevent occupational hazards and improve working conditions” (R4627-17 of the Labour Code), such persons or bodies may provide advice specifically concerning nurses. In this regard, the CGT–FO observes that the reform of the staff representative bodies under the 2017 Ordinances, as well as the abolition of the health, security and working conditions committee (CHSCT) and of the technical committees, greatly reduce the consideration given to matters of occupational safety, health and security, and worsen nurses’ working conditions. The Government’s revision of the table of occupational diseases and its refusal to take risks to mental health into account also add to the difficulties encountered by workers, in particular nurses. The CGT–FO also observes that the recent reforms led by the Government have resulted in the abolition of individual exposure sheets for exposure to certain factors of occupational hazards. This has also entailed excluding exposure to certain hazardous chemicals as a criterion for entry into the arduous or dangerous work category, regardless of the use of numerous hazardous chemical substances in healthcare establishments that put nurses’ health in danger. The CGT–FO further recalls that the nursing profession is primarily comprised of women and therefore requires solutions adapted to women in respect of working conditions, particularly to combat precarious work for women and gender-based inequality. The Committee also notes the CGT–FO’s observations, which draw attention to the current high level of distress of the healthcare personnel, including nursing personnel. Noting that, because of the specific nature of their work, nursing personnel are often in close contact with patients and so exposed to a very high risk of infection when providing care to patients presenting symptoms of infectious diseases, including COVID-19, especially if precautions to combat infection, such as the use of personal protective equipment (PPE) and vaccines, are not strictly applied or readily available, the Committee requests the Government to provide detailed and up-to-date information on all the safety measures taken or envisaged, to improve working conditions in respect of safety, health and security for nursing personnel specifically.

The Committee notes the observations of the French Confederation of Christian Workers (CFTC) communicated with the Government’s report.

Article 4(4) of the Convention. Participation of shipowners and seafarers in the management of the pension scheme. The Committee notes the allegations of the CFTC that the requirements of Article 4(4) of the Convention, which establishes the right of shipowners and seafarers who contribute to the cost of pensions to participate in the management of the scheme, are not fulfilled. The CFTC refers in particular to the Committee of Interested Parties (CPI), established in 2018, which, although representing an initial step towards better application of this Article, has a merely advisory role and does not enable the social partners to participate fully in the management of the scheme, as required by the Convention. In reply to these observations, the Government indicates that, although persons in receipt of a pension under the seafarers’ social security scheme are not directly represented on the executive board of the National Maritime Invalidity Institute (ENIM), which is responsible for the seafarers’ social security scheme, the chairpersons of the bodies representing each of the four maritime sectors (trade, fisheries, marine fish farming, leisure boating) are members of the ENIM executive board. As regards the CPI, the Government indicates that its role is to formulate opinions on any matters coming within the competence of the ENIM executive board and that at each meeting it considers the items on the agenda for the next board meeting. The Government also recalls the setting up of the Higher Seafarers’ Council (CSGM), which is the umbrella organization for the maritime community and within which the federations of retirees play an active part. The Committee observes that under section 3 of Decree No. 2010-1009 of 30 August 2010 establishing the administrative and financial structure of the National Maritime Invalidity Institute, the composition of the ENIM executive board does not explicitly include representatives of the shipowners and seafarers who contribute to the cost of pensions, as established by Article 4(4) of the Convention. With regard to the CPI, the Committee observes that, according to the ENIM annual report for 2018 referred to in the Government’s report, although the opinions of the CPI are not binding on the executive board, they contribute to the board’s decision-making through the clarification they provide, while raising its awareness of the expectations of maritime stakeholders. The Committee also observes that the ENIM report announces the launch in 2019 of discussions on amendments to the ENIM regulations in order to align them with those of a social security organization by fully incorporating the social partners in the governance of the Institute. The Committee requests the Government to provide information on the results of the discussions launched in 2019 and on the measures taken or envisaged, if applicable, to ensure that shipowners and seafarers, whether in receipt of a pension or still making contributions, participate fully in the management of the ENIM scheme, in accordance with Article 4(4) of the Convention.

The Committee notes the observations of the General Confederation of Labour–Force Ouvrière (CGT-FO) received on 9 October 2019, as well as the corresponding comments from the Government. The Committee notes that some of the issues raised which the CGT-FO describes as obstacles to the free exercise of the right to organize are being examined by a tripartite committee in the context of a representation made by the General Confederation of Labour and the CGT-FO under article 24 of the ILO Constitution

Article 2. Freedom to form unions. The CGT-FO indicates that when a trade union is established, it is required to submit its articles of association to the town hall. The mayor transmits the articles of association to the Office of the Public Prosecutor (art. R 2131-1 of the Labour Code). The latter must verify that the newly established trade union is not pursuing an aim contrary to public order and morals and that its leaders fulfil the requirements. It alleges, however, that prosecutors or town halls tend to request the submission of documents not required by the regulations, such as identity documents, although nationality should not be taken into account for the establishment of trade unions. The Committee notes that the Government indicates that French nationality does not constitute a criterion for the establishment of a union and that article L 2131-3 of the Labour Code provides that “the founders of any trade union shall submit their articles of association and the names of those who, in any capacity, are responsible for their administration and management”. While recalling that the requirement of certain formalities is not in itself incompatible with the Convention, provided that they do not constitute an obstacle to the right of workers to establish and join organizations of their own choosing, without any distinction, the Committee notes this information . The Committee trusts that the formalities requested by the local authorities will not be applied in a way that can interfere with the right of workers, without distinction whatsoever, including nationality, to establish and join organisations of their own choosing

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programmes. Appointment of trade union delegates. The Committee notes that the concern of the CGT-FO that the Ratification Act No. 2018-217 of 29 March 2018 still does not restore the full freedom of trade unions to choose their representatives. The CGT-FO considers that, under the new legislative provisions, trade unions that appoint their delegates must always be representative unions, and the trade union delegate must always as a matter of priority be chosen from among the candidates for occupational elections who have obtained 10 per cent of the vote. The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. According to the CGT-FO, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that the Government did not take into account its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions.The CGT-FO notes that, according to the new wording of section L 2143-3 of the Labour Code, elected representatives can waive in writing their right to be appointed as trade union delegates and that in this case, if there remain candidates who have obtained 10 per cent of the vote, the trade union delegate must necessarily be chosen from among them. It is only if there no longer remains any candidate who has obtained 10 per cent and if all of the elected representatives have waived in writing their right to be appointed as trade union delegates that the representative union can choose its trade union delegate from among the other candidates or, failing that, from among its members or former elected representatives who have reached the limit of their term of office. In its view, the difficulty is that if there remain candidates who have obtained 10 per cent, the law does not indicate whether, like the elected representatives, they can waive in writing their right to be appointed as trade union delegates so that an ordinary candidate can be appointed. The CGT-FO therefore considers that while the Government has revised the rules of appointment for trade union delegates, they are insufficient, and that its request to use the term “candidates” instead of “elected representatives”, which would enable all candidates (whether elected representatives or not) who have obtained 10 per cent to waive in writing their right to be appointed as trade union delegates so that the trade union can resort to alternative solutions, was not taken into account.

For the CGT-FO, defence of freedom of association would also have required the words “or, failing that” in section L 2143-3 to be deleted, so that the trade union delegate could be chosen from among the ordinary candidates for occupational elections or from among members or former representatives. The CGT-FO indicates, however, that the Government recognizes, in a circular, that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates so that the trade union can choose an ordinary member.

For its part, the Government indicates that section 6 of Act No. 2018-217 of 29 March 2018 added an exception to the obligation (provided for by the previous legislation of 2008) to appoint trade union delegates from among candidates who personally obtained at least 10 per cent of the votes cast, namely, when all of the elected representatives who fulfil this requirement waive in writing their right to be appointed as trade union delegates. According to the Government, the hypothetical outcomes provided for in section L 2143-3 would never put representative trade union organizations in a situation where they could not choose their representative.

The Committee recalls in this regard that : (i) the requirement established by the law of 2008 to appoint trade union representatives from among candidates who have personally obtained at least 10 per cent of the votes cast led to the submission of a complaint to the Committee on Freedom of Association (Case No. 2750); (ii) the Committee on Freedom of Association noted with satisfaction the significant easing brought about by the amendment of section L 2143-3 of the Labour Code by Act No. 2018-217 of the conditions imposed on the appointment of trade union representatives, emphasizing that the reform contributes to the preservation of the right of trade union organizations to freely choose their trade union delegates; and (iii) on that basis, the Committee closed the case (see 389th Report, June 2019).

The Committee further observes that: (i) while the legislation does not explicitly provide for the scenario highlighted by the CGT-FO, the Government recognizes by means of a circular that that all candidates, whether elected representatives or not, who have or have not obtained 10 per cent, have the option to waive in writing their appointment as trade union delegates, so enabling the trade union to choose an ordinary member as a trade union delegate if it so wishes, and (ii) the Court of Cassation, in a ruling of 8 July 2020, confirmed that when all of the elected representatives or all candidates having obtained at least 10 per cent of the votes that it put forward in the most recent occupational elections have waived their appointment as trade union delegates, the trade union organization can appoint as a trade union delegate one of its members in the enterprise or establishment or one of its former elected representatives who have reached the limit of three successive terms of office on the social and economic committee (Cass soc. 8 July 2020, No. 19-14605). Noting with interest the progress achieved in terms of legislation and case law with regard to the recognition of the freedom of trade unions to choose their representatives in the enterprise, the Committee invites the Government to provide information on any legislative follow-up given to the above-mentioned ruling of the Court of Cassation.

Compatibility of rules on financial transparency with freedom of association. The Committee notes that, according to the CGT-FO, the requirements of financial transparency and certification of accounts burden the operation of trade union organizations and are contrary to the principle that trade union organizations should organize their administration and activities freely. The CGT-FO considers that the new measures and their application by case law (Cass. soc. 17 October 2018, No. 17-19732 : the accounts published by the trade union should not be out of date when the trade union branch representative is appointed; Cass. soc. 17 October 2018, No. 18-60030: the publication of accounts on the Facebook page of the trade union does not meet the criterion of financial transparency; Cass. soc. 13 June 2019, Nos 18-24814, 18-24817 and 18-24819: the trade union must have published its accounts and must also obtain approval for them from the general assembly or statutory body) would ultimately impede the legal pursuit of trade union activities.

The Committee notes the Government’s indication that in its decision of 30 April 2020, the Constitutional Council found that the obligation on trade unions to meet the requirement of financial transparency “does not ignore freedom of association or the principle of worker participation” (DC No. 2020-835 QPC of 30 April 2020). The Government indicates that: (i) the financial transparency rules imposed on trade union organizations are not opposed to freedom of association as protected by the Constitution but, on the contrary, contribute to ensuring its effective realization. The autonomy and independence of the trade union movement are basic to the collective aspect of freedom of association that financial transparency seeks to guarantee by requiring trade union organizations to make public the sources of their funding; (ii) financial transparency also helps to inform the decision to join a trade union organization by allowing employees to be fully informed of the sources of funding of the organization to which they belong or which they intend to join and the manner in which their membership fee is used by that organization; (iii) with regard to the funds disbursed by the national joint fund management association, trade union organizations and professional employers’ organizations may use their funds freely, provided that they can establish their compliance with legally defined missions of general interest. Organizations receiving funds can also justify their use in a public annual report to the National Joint Funds Management Association (AGFPN), on which the annual report that the AGFPN submits to Parliament and the Government is based; (iv) financial transparency of accounts is also a criterion by which the representativeness of organizations can be identified.

The Committee notes this information and considers that the elements laid before it by the CGT-FO do not allow for a finding that the financial rules or those governing external control of financial reporting exceed the objective of protecting the interests of members and ensuring the democratic functioning of institutions.

Parity in occupational elections. The Committee notes that the CGT-FO finds that the interpretation by the Court of Cassation of the provisions of the law of 17 August 2015 (Article L.2314.30 of the Labour Code) regarding the balanced representation of women and men in representative staff institutions would be incompatible with freedom of a trade union to put forward the candidates of its choice. It alleges that, further to the ruling of the Court of Cassation of 9 May 2018 (No. 17-14088), the diversity obligation imposed when there is a list containing two or more candidates precludes the trade union organization from proposing a sole candidate. The Committee notes that the CGT-FO states that a trade union should, if it so wishes be able to submit a list with a sole candidate (a man or a woman), provided that each sex is represented in the electoral college, and to the extent that a man or a woman can be placed without distinction at the top of the list. The CGT-FO considers that, since the Court of Cassation allows incomplete lists, it must be possible for lists to consist of a sole candidate in order to protect the freedom of trade unions to draw up lists.

The Committee notes that the Government refers to the ruling of the Court of Cassation of 13 February 2019 (No. 18-17.042) according to which freedom of association, viewed from the perspective of freely choosing representatives, is not absolute: the Court recognized, inter alia, that: (i) the obligation imposed on trade union organizations to submit lists for occupational elections that alternately comprise candidates of both sexes proportionate to the share of women and men in the electoral college concerned is consistent with the legitimate objective of ensuring that employee representation reflects the reality of the electorate and of promoting effective gender equality; and (ii) the legislation envisaged not abstract parity but proportionality in the number of candidates with regard to the number of male and female employees in the electoral college of the enterprise.

While noting the information provided by the Government with regard to the recognition by legislation and case law of a relationship of proportionality between the number of candidates and the number of male and female employees in the electoral college of the enterprise, the Committee requests the Government to provide its comments in reply to the observations of the CGT-FO with regard to the fact that it is not possible for trade unions to put forward sole candidates.

Articles 2, 3, 6, 7 and 10. Standing of trade unions and trade union federations to take action. The Committee notes that the CGT FO alleges that in a recent decision (CE, 24 May 2017, No. 392661), the Council of State considerably restricted the standing of a trade union federation to take action by not recognizing the latter's right to challenge a prefectoral decision because of its very local scope of application, even though the subject of the dispute raised a question of principle that the trade union federation was intending to defend.

The Committee notes the Government’s indication that : (i) in accordance with section L 2132-3 of the Labour Code, occupational trade unions have the right to take legal action and may exercise all the rights of a civil party before any court in respect of acts directly or indirectly prejudicial to the collective interest of the occupation that they represent, and (ii) under the terms of section L 2133-3 of the Code : “trade union federations shall enjoy all of the rights conferred on occupational trade unions by this Part.” According to the Government, the Council of State’s decision of 24 May 2017 does not in any way restrict the capacity of unions to take legal action but merely states that in view of their purpose conferred by law and by their statutes, the standing of a trade union or trade union federation to take action in defence of the collective interest will necessarily be assessed in view of the impact of the impugned decision.

The Committee observes that the legal action in question concerned a prefectoral decision having granted an exception to the rule of Sunday rest to a single establishment of a company of retail trade of automobile equipment. The Committee notes that, in the case in question, the Council of State ruled that a departmental trade union federation defending in particular the interests of non-food trade employees, although it had affirmed at a number of federal congresses its objective of preserving the rule of Sunday rest, did not have an interest that would give it standing to apply for the prefectoral decision to be overturned because of the exclusively local nature of the activity of the company concerned which was located in a department neighbouring that of the departmental union in question. Noting the trade union federation concern that even a local exception to a legal rule or principle may be invoked in subsequent cases that affect members’ legitimate interests, and emphasizing the importance of the right of trade unions to access to justice in order to defend the collective interests of their members, the Committee requests the Government to provide more detailed information on how this right is regulated in the legislation and in case law, and to indicate in this regard the criteria used by the competent courts to define its contours, including with respect to decisions of allegedly local scope.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

In order to provide a comprehensive view of issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the observations of the General Confederation of Labour (CGT) and the General Confederation of Labour – Force Ouvrière (CGT-FO) on the application of Convention No. 81, and the Government’s response, received in 2016.

Territorial reform of the State. Impact on the organization of the labour inspection system. The Committee notes the Prime Minister’s circular dated 12 June 2019 on the implementation of the territorial reform of the State, which envisages the creation of a public labour market inclusion service which, at the regional level, will involve merging the Regional Directorates for Enterprise, Competition, Consumption, Labour and Employment (DIRECCTE) and the Regional Directorates for Youth, Sport and Social Cohesion (DRJSCS) into a single body. According to the circular, at the departmental level, it is also envisaged that the competences of the DRJSCSs and departmental units of the DIRECCTE, which currently include the departmental-level labour inspection services, will be merged into a new body. The Committee notes that, according to the circular, it is planned that the labour inspection service will maintain its current hierarchical organization within these new bodies. The Committee also notes that the reform envisages the pooling, at the departmental level, of office space and budgetary resources and support functions, in order to increase efficiency. The Committee recalls that, in accordance with Article 4 of Convention No. 81 and Article 7 of Convention No. 129, labour inspection shall be placed under the supervision and control of a central authority, so far as is compatible with the administrative practice of the Member. In this regard, the Committee emphasized in its 2006 General Survey, Labour Inspection, paragraph 140, that “Attaching the labour inspectorate to a central authority facilitates the establishment and application of a single policy throughout the territory covered, and makes it possible to use available resources in a rational way by, for example, eliminating duplication of effort.” The Committee requests the Government to take the necessary measures to ensure that all organizational reforms of the labour inspection system are conducted in accordance with the provisions of Conventions Nos 81 and 129. It requests the Government to provide detailed information on the measures taken to ensure that the reform is conducted in accordance with Articles 3 (duties of labour inspectors), 4 (central authority), 5 (cooperation and coordination ), 6 (status and conditions of service of public officials), 7 (recruitment and training), 10 (number of labour inspectors and material means), 11 (offices and transport), 15 (obligations of labour inspectors), 16 (number and quality of inspections) and 19 (periodical reports to the central inspection authority) of Convention No. 81, as well as the corresponding Articles of Convention No. 129 (Articles 6, 7, 8, 9, 12, 13, 14, 15, 20, 21 and 25).

Reform in French Guiana. Impact on the labour inspection system. The Committee notes that Decree No. 2019-894 of 28 August 2019 on the organization and functions of State services in Guiana, provides for the reorganization of the administration of the State in French Guiana into five general directorates, and provides for labour inspection to be placed under the authority of the General Directorate of Communities. It also notes that, in accordance with section 3 of the Decree, while the future Director-General of Communities shall be appointed further to an opinion of the prefect, for the discharge of their functions relating to labour inspection, they shall not be under the authority of the prefect of French Guiana, but under the General Labour Directorate (DGT). The Decree also envisages that, under the authority of the prefect and subject to the powers attributed to other public services or institutions of the State, the General Directorate of Administration shall be responsible for managing the pooled functions and resources of the State services placed under the authority of the prefect in various fields. The Committee requests the Government to provide detailed information on the impact of the proposed organizational changes on the application in practice of Conventions Nos 81 and 129, in particular on the application of Articles 3 (functions of inspectors), 4 (central authority), 5 (cooperation and coordination), 6 (status and conditions of service as public officials), 7 (recruitment and training), 10 (number of inspection staff and material resources), 11 (offices and transport), 15 (obligations of inspectors), 16 (number and quality of inspections) and 19 (periodic reports to the central authority) of Convention No. 81, as well as the corresponding Articles of Convention No. 129 (Articles 6, 7, 8, 9, 12, 13, 14, 15, 20, 21 and 25). The Committee also requests the Government to indicate the possible impact of the management, by the General Directorate of Administration, of the pooled functions and resources of the State services placed under the authority of the prefect in various fields, on the personnel of the labour inspection system, which is placed under the authority of the DGT.

Articles 3(1) and (2), 5(a) and 17 of Convention No. 81 and Articles 6(1) and (3), 12, 22 and 23 of Convention No. 129. Further duties entrusted to labour inspectors. Control of workers in an irregular situation (in agriculture). Further to its previous comments on the role of labour inspectors in procedures to tackle illegal work, the Committee notes the Government’s indication in its report that the labour inspection system does not have statistic on cases in which migrant workers having worked in an irregular situation have had their rights restored. However, it notes the Government’s indication that the labour inspection services report cases in which their action has led to an employer regularizing the situation of such migrant workers. The Government adds that the labour inspection service’s association with the police force offers, in some cases, labour inspectors with greater security in carrying out inspections, and does not prevent the full discharge of their duties of informing and advising workers. In this respect, the Committee notes that, according to the Government, when inspecting workplaces, inspectors distribute leaflets to migrant workers who do not have permits or who are undeclared, and that migrant workers who have worked in an irregular situation have equal access to the labour inspection service, irrespective of their status under the legislation on the residence of migrants, to obtain information and advice, in particular on the possibilities of asserting their rights. The Committee also notes that, according to the labour inspection’s 2017 annual report, the labour inspection services share information and coordinate their action with the competent institutional bodies, including the police, gendarmerie, customs, the control and search brigades attached to the public finance directorates, the national anti-fraud delegation, the Unions for the Recovery of Social Security Contributions and Family Allowances, the Agricultural Social Mutual and the judicial authorities. The Committee requests the Government to provide more information on the nature of the coordinated action and the type of information shared between the labour inspection service, the police, customs and other institutional bodies responsible for combating illegal work, indicating how this sharing and coordinated action contributes to the fulfilment of the main duties of labour inspectors, as envisaged by Article 3(1) of Convention No. 81 and Article 6(1) of Convention No. 129.

Articles 6 and 18 of Convention No. 81 and Articles 8 and 24 of Convention No. 129. Observations of the CGT and the CGT-FO. Alleged infringements of the principle of the independence of labour inspectors. The Committee notes the observations of the CGT and CGT-FO concerning a series of specific events during which, the trade unions allege that the principle of the independence of labour inspectors, under Article 6 of Convention No. 81, was prejudiced, as a company that had been inspected put undue pressure on the inspection personnel involved, and the competent authorities did not respond in a timely or appropriate fashion. In particular, the CGT and CGT-FO allege in their observations that the relevant authorities failed to condemn the undue pressure exerted by the company. The Committee notes the information provided in the Government’s response on the protection measures taken by the Ministry of Labour and the DGT for the inspection staff involved in that case. It also notes that section L. 8112-1 of Labour Code was amended by Act No. 2016-1088 of 8 August 2016, and explicitly provides that labour inspection officers “benefit from a guarantee of independence in the discharge of their duties within the meaning of the international Conventions on labour inspection”. Finally, the Committee notes the Government’s indication that efforts are still being made to find a solution to enable the best possible outcome to the situation. The Committee requests the Government to continue to take all the necessary measures, in consultation with the social partners, to ensure that no undue external influence, in the form of pressure against labour inspectors, is tolerated. It requests the Government to continue providing information in this regard, and to continue providing information on the effective application of penalties for obstructing labour inspectors in the discharge of their duties.

Articles 6 and 15 of Convention No. 81 and Articles 8 and 20 of Convention No. 129. Code of Professional Ethics 2017. The Committee notes with interest the adoption in 2017, of Decree No. 2017-541 of 12 April 2017 issuing the code of ethics of the public labour inspection service. It notes that, according to its preface, the 2017 Code of Ethics is based on Conventions Nos 81 and 129 and provides a reminder of the ethical principles and rules applicable to all public officials as well as the principles and rules that are specific to labour inspectors in view of the nature of their functions and powers. The Government states that the Code of Ethics guides the action of the public labour inspection service, provides for the respective rights and duties of the directors and inspectors placed under its authority and recalls, in particular, the obligations imposed on inspectors in relation to users, including neutrality and impartiality, as well as safeguarding the secrecy and confidentiality of complaints in the discharge of their duties.

Articles 7 and 10 of Convention No. 81 and Articles 9 and 14 of Convention No. 129. “Strong Ministry” reform. Training and promotion of labour inspectors. Number of labour inspectors. The Committee notes the information provided by the Government on the impact of the implementation of the “Strong Ministry” reform on labour inspection. The Committee notes, in particular, the information provided on the number of personnel in the labour inspection system, training, the promotion of 980 labour controllers (assistants to inspectors) to the rank of labour inspector since 2013, increased means of intervention of the labour inspectors, and new material resources made available to inspectors, including computer tools.

Articles 12 and 16 of Convention No. 81 and Articles 16 and 21 of Convention No. 129. Act for a State that serves a trust-based society. Application in practice. The Committee notes the adoption of Act No. 2018-727 of 10 August 2018 for a State that serves a trust-based society which, under the terms of section 32, imposes, for a four-year experimental period, a cumulative limit on the duration of all controls carried out by the authorities on a company with fewer than 250 employees and whose annual turnover does not exceed €50 million. Section 32 also provides that this limit is not enforceable if there are precise and consistent indications of non-compliance with a legal or regulatory obligation, and does not apply to certain controls, including those ensuring compliance with the rules on the safety of persons. The Committee notes that this limit could potentially hamper the practical application of Articles 12 and 16 of Convention No. 81 (and Articles 16 and 21 of Convention No. 129), since labour inspectors would no longer be free to enter workplaces for inspection once the limit had been reached, in view of their duty of confidentiality under Article 15(c) of Convention No. 81 (and Article 20(c) of Convention No. 129), which would prevent them from disclosing that an inspection was being made following a complaint. The Committee requests the Government to indicate the measures taken or envisaged to ensure that, in practice, these provisions do not impede the power of labour inspectors to enter workplaces, in accordance with Article 12 of Convention No. 81 and Article 16 of Convention No. 129, and to inspect them as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, in accordance with Article 16 of Convention No. 81 and Article 21 of Convention No. 129.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Safety of labour inspectors. Obstructing labour inspectors in the discharge of their duties. Further to its previous comments, the Committee notes the statistics provided by the Government indicating the number of labour inspection incidents in 2016, the measures taken by labour inspectors in response, and the preventive measures taken to raise the awareness of inspectors. The Government states that 48 inspection incidents were reported in 2016 and that, of the 45 incidents investigated, 21 led to charges or the intention of bringing charges for contempt, 13 to charges or the intention of bringing charges for obstruction, three to reports to the public prosecutor, within the meaning of section 40 of the Code of Criminal Procedure (discovering of a crime or offence in the discharge of the duties of a public officer or civil servant), seven to complaints lodged by the supervising officer, and three to the employer being held in police custody three days after the incident. The Committee welcomes the Government’s indication that the proportion of “contempt” incidents remains relatively stable compared with the number of interventions by labour inspectors. However, it notes that, according to the 2017 annual report of the labour inspection service, the number of inspection incidents increased in 2017 to 65. The Government also considers that there are still difficulties in terms of statistics on judicial sanctions, as judicial procedures for offences often last over three years, and the number of unknown outcomes remains high, even for cases referred to the prosecutor six or seven years previously. The Committee requests the Government to continue providing statistics on inspection incidents that have resulted in sanctions and on criminal and civil charges brought for reported cases of contempt, threats, assaults and violence.

Article 19 of Convention No. 81 and Article 25 of Convention No. 129. Information system on the activities of labour inspection services. The Committee welcomes the Government’s indication concerning the implementation of the “Wiki’T” application, the tool used by the monitoring units to register and gather information on the labour inspection service activities. However, it notes that, according to the Government, the central authority experiences difficulties in obtaining reliable and exhaustive data on the activities of the labour inspectors due to incomplete entries in the “Wiki’T” information system and the “Delphes” pre formatted query tool. The Committee requests the Government to provide more information on the use of these tools, as well as the measures taken or envisaged to remedy the difficulties identified, in order to maintain compliance with the requirements to report periodically to the central authority, as provided for by Article 19 of Convention No. 81 and Article 25 of Convention No. 129.

Matters specifically relating to labour inspection in agriculture

Articles 6(1)(b), 18 and 19 of Convention No. 129. Preventive function of the inspection services in agriculture and notification of occupational accidents and cases of occupational disease in French Guiana and Guadeloupe. In response to its previous comments concerning an under-reporting of accidents and cases of occupational disease in French Guiana and Guadeloupe, the Committee notes the Government’s indication that the Directorates for Enterprise, Competition, Consumer Matters, Labour and Employment (DIECCTES) of these two departments have been able to remedy this situation. The Committee also notes with interest the Government’s indication of action by DIECCTE in French Guiana, in partnership with the social security services, the regional health agency, the Red Cross and other partners, to raise the awareness of all farmers and tenant farmers on the subject of health and the prevention of occupational accidents. The Committee also notes the action taken by the DIECCTE of Guadeloupe in cooperation with the DIECCTE of Martinique on a programme to monitor occupational diseases. The Government also indicates that more regular controls have resumed in Guadeloupe, now that a position in the agricultural inspection department has been filled, and that employers have once again been made aware of their obligation to declare occupational accidents and diseases. The Committee requests the Government to provide further information on the awareness-raising activities targeting employers conducted in Guadeloupe.

Article 27 (b), (f) and (g) of Convention No. 129. Annual report of the labour inspection service. The Committee notes that, according to the Government, labour inspection personnel for agricultural occupations are not counted separately, as the functions of a number of labour inspection departments covering agricultural occupations have been extended to non-agricultural activities. The Committee also observes that the 2017 annual report of the labour inspection service does not contain specific information on the agricultural sector with respect to the subjects listed under Article 27(b), (f) and (g) of Convention No. 129, concerning labour inspection personnel in agriculture and statistics on occupational accidents and their causes, statistics on occupational diseases and their causes. The Committee requests the Government to take the necessary measures to ensure that the annual reports of the labour inspection service contain information on the subjects listed in Article 27(b), (f) and (g) of Convention No. 129.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Article 1 of the Convention. Information on national legislation. The Committee notes the legislative developments in the areas of immigration and emigration, including the adoption of Act No. 2018-778, of 10 September 2018, for well-managed immigration, an effective right of asylum and successful integration, as well as Order No. 2019-116, of 20 February 2019, transposing Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018, amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. The Committee notes with interest that Order No. 2019-116 amends section L1262-4 of the Labour Code, which now provides that an employer temporarily posting an employee to the national territory shall guarantee him or her equal treatment with workers employed by companies in the same branch of activity in the national territory, with regard to, inter alia: working hours; compensatory rest; public holidays; paid annual leave; remuneration within the meaning of Article L.3221-3; payment of wages, including overtime pay; rules on occupational safety and health; age of admission to work; and reimbursement for accommodation.

Information on bilateral agreements. Further to its previous comment requesting the Government to provide information on this matter, the Committee notes the details included in the Government’s report regarding bilateral agreements on young professionals, “working holiday” agreements and the agreements for the focused management of migratory flows. The Committee also notes that the bilateral agreements on immigration and emigration concluded by the Government, along with detailed information in this regard, are available on the website of the Ministry of the Interior.

Articles 2 and 4. Free assistance services and measures to facilitate the migration process. Integration courses. In its previous comment, the Committee requested the Government to provide information on the sanctions or penalties imposed in cases of failure to comply with the obligation to participate in the integration courses provided for in the provisions of the “republican integration contract” (CIR). In this regard, the Committee notes the Government’s reiteration that: (i) the CIR considered to have been respected when the prescribed training has been followed assiduously and seriously and the foreign national has not shown any rejection of the essential values of French society and the Republic; and (ii) compliance with the CIR, along with the other requirements for a residence permit, means that a multi-year residence permit of two to four years can be issued after one year of legal residence.

Articles 2 and 7(2). Free nature of the services to assist migrant workers and operations carried out by public employment services. The Committee requested the Government to provide information on the use of the fees charged by the French Immigration and Integration Office (OFII) to men and women migrant workers for the issue or renewal of residence permits authorizing employment. The Committee notes the Government’s indication that these taxes serve to: (i) cover the cost of the procedures involved in the processing of files by the prefectures and the Regional Departments of Enterprise, Competition, Consumption, Labour and Employment (DIRECCTEs); (ii) cover costs related to producing the residence permit; (iii) contribute to the OFII budget to carry out integration programmes (including civic training, modules on procedures for accessing employment and language training), and medical examinations; and (iv) finance OFII’s operations in the field of family reunification (including the verification of supporting documents, integration programmes, medical supervision, and the provision of health advice and information). In the light of this information, the Committee notes that some of the activities listed by the Government correspond to operations carried out by public employment services covered by Article 7(2) (such as the activities of the DIRECCTEs); while others constitute action for the dissemination of information to migrant workers, covered by Article 2 of the Convention (such as the information provided through integration courses, as well as the medical and health advice provided). In the light of these considerations, the Committee requests the Government to take measures to ensure that men and women migrant workers do not bear the cost of the activities covered by Articles 2 and 7(2) of the Convention.

Article 3. Measures against misleading propaganda. In its previous comment, the Committee requested the Government to provide information on the steps taken to combat misleading propaganda and the stigmatization and stereotyping of migrant workers. In its report, the Government indicates the steps taken to combat the communication of misinformation to migrant workers. Specifically, the Government refers to the dissemination of information on the websites of the Ministry of the Interior, the Ministry of Labour and the Ministry for Europe and Foreign Affairs, as well as through consular offices and representatives of the French Immigration and Integration Office (OFII) abroad. The Government also indicates that the conclusion of bilateral agreements with countries of origin facilitates the exchange and collection of information on immigration and emigration and helps to combat misleading propaganda. Regarding the steps taken to combat stigmatization and stereotyping, the Committee notes the National Plan to Combat Racism and Antisemitism (2018– 2020), one of the objectives of which is to combat racist and anti-Semitic prejudices and stereotypes, including in the world of work. The Committee also notes the conclusions of the European Commission against Racism and Intolerance (CRI(2019)3, published on 5 March 2019) indicating that the Government has revised its school curricula with a view to a better understanding of the implications of immigration and to combat the prevalence of racial stereotypes and biases. Noting this information, the Committee refers in this regard to its detailed comments on combating discrimination on the grounds of race, colour and national extraction, under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Article 6(1)(a)(i). Equality of treatment. Working conditions. The Committee requested the Government to provide information on the application of the principle of equality of treatment between migrant workers and national workers with regard to working conditions. The Committee notes the Government’s indication that this principle is enshrined in the Labour Code and incorporated into collective agreements.

Article 6(1)(a)(iii). Equality of treatment. Accommodation. The Committee requested the Government to provide information on the application in practice of the principle of equality of treatment between migrant workers and national workers with regard to accommodation. The Committee notes the information provided by the Government regarding the conditions of access to housing in place, and the indication that these are based on social criteria that are applied equally to nationals and foreign nationals in a regular situation.

Follow-up to the conclusions of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that, in March 2016, the Governing Body adopted the report of the tripartite committee set up to examine the representation made in 2014 by the Federation of Salaried Employees and Managerial Staff of the General Confederation of Labour–Force Ouvrière (CGT–FO) on the application of the Convention (GB.326/INS/15/8).

Articles 6(2) and 7 of the Convention. Exemptions to Sunday rest. Further to its previous comments, the Committee notes the information provided by the Government in its report, both on the legislative provisions governing weekly rest and the authorized exemptions and on the application in practice of the Convention. It notes in particular the Government’s indication that, according to a 2018 study of the Directorate of Research, Studies and Statistics (DARES), recourse to Sunday work has changed little since 2015, even with the change in regulations that followed the adoption of Act No. 2015-990 of 6 August 2015 on economic growth, activity and equality of opportunity. The Government also refers to a decision of the Council of State of 28 July 2017 upholding Decree No. 2015-1173 of 23 September 2015 implementing the provisions of the Act of 6 August 2015, with the exception of one of the criteria established by this Decree in section R.3132-20-1 of the Labour Code to limit the commercial areas in which exemptions to Sunday rest may be made. The Committee also notes the conclusions of the tripartite committee, which recalled in particular that any measures relating to exemptions to the principle of weekly rest should be adopted in consultation with the social partners, in accordance with the Convention.

Article 4(1) of the Convention. Equality of treatment without any condition of residence. The Committee notes the information provided by the Government in reply to its previous request concerning a condition of residence for entitlement to social security benefits.

Article 4 (2)(b). Supplementary invalidity allowance. The Committee notes that in accordance with article L816-1(1) of the Social Security Code, a supplementary invalidity allowance (allocation supplémentaire d’invalidité) is granted to non-nationals in case they have a work permit for at least ten years. The Committee notes that this requirement does not apply to EU citizens, citizens of the countries that belong to the European Economic Area (EEA) and citizens of Switzerland (article L816-1(3) of the Social Security Code). The Committee recalls that as prescribed by Article 4(2)(b) of the Convention, the grant of invalidity benefit may be made subject to the condition that the beneficiary has resided on the territory of the Member for a period which shall not exceed five consecutive years immediately preceding the filing of claim. The Committee therefore requests the Government to explain how the provision of supplementary invalidity allowance is ensured to nationals of Members which have accepted the branch of invalidity benefit and to which article L816-1(3) of the Social Security Code does not apply.

Article 5. Payment of benefits abroad. The Government states that in the case of residence abroad, the condition of residence for the entitlement to benefits is lifted subject to bilateral agreements. The Committee notes the list provided by the Government indicating countries which have concluded such bilateral agreements with France. The Government further states that the condition of residence is lifted with respect to countries that belong to the EEA and countries which are party to the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19). The Committee recalls that in accordance with Article 5 of the Convention, the provision of invalidity benefits, survivors’ benefits and death grants, and employment injury pensions shall be guaranteed by a Member to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of the branch or branches in question, when they are resident abroad. The Committee therefore requests the Government to explain how provision of benefits abroad is ensured to French nationals and nationals of countries which are non-EEA Members which have accepted the same branch of social security and which have not concluded a bilateral agreement with France, particularly:

– invalidity benefit: Brazil, Democratic Republic of the Congo, Ecuador, Egypt, Iraq, Jordan, Kenya, Libya, Mexico, Rwanda, Syrian Arab Republic and Bolivarian Republic of Venezuela;
– survivors’ benefit and death grant: Barbados, Brazil, Ecuador, Egypt, Guinea, Iraq, Jordan, Kenya, Libya, Mexico, Rwanda, Syrian Arab Republic, and Bolivarian Republic of Venezuela;
– as regards employment injury benefit, the Committee requests the Government to indicate the manner in which it gives effect to the Convention with respect to the following four countries which have accepted the provisions of the Convention for this branch but are not party to Convention No. 19: Ecuador, Guinea, Jordan and Libya.

The Committee notes the Government’s indication in its report that the Department of Maritime Affairs has undertaken a significant reform of maritime vocational training since 2012 in order to take into account the relevant international instruments, and particularly the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, 1995 (STCW-F). Decree No. 2015-723 of 24 June 2015 on maritime vocational training certificates and the conditions for the exercise of functions on board commercial, pleasure, fishing and mariculture vessels, adopted within the framework of the reform, has allowed the level of training required on board fishing vessels to be brought closer in a number of respects to that of commercial and pleasure vessels.

Article 5(5) of the Convention. Derogations. The Committee previously requested the Government to provide information on any further measures taken to reduce the number of derogations from the requirements respecting fishers’ competency certificates. The Committee notes the Government’s indication that Decree No. 2015-723 of 24 June 2015 sets out the conditions for the granting of derogations, by interregional shipping directors, from the conditions for maritime vocational qualifications for officers on a fishing vessel. The Government adds that the regulations for the granting of derogations have been made stricter, as the requirements set out in the STCW-F, which is much stricter than the former rules, have been taken into account. The Decree only permits such derogations in cases of extreme necessity for a period not exceeding six months for an officer, and only if the person concerned has the required certification for the officer position immediately below. The Committee notes this information.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Application in practice. The Committee notes the Government’s detailed report, including the statistical data that it contains, particularly in the Annex to the Finance Bill for 2017. The Committee also notes the detailed description of the vocational training and guidance measures, and particularly the contract for the regional plan for the development of vocational training and guidance, which will reinforce action for the provision of training at the local level, and the recovery plan, which will also promote apprenticeship, and the conditions under which it is carried out. The Committee invites the Government to continue providing data illustrating the results achieved by the policies, programmes and measures adopted to give effect to the provisions of the Convention. In particular, the Committee invites the Government to provide information on the results and impact of the Major Investment Plan 2017–22. The Committee also invites the Government to indicate the role and impact of the social partners in the formulation and implementation of vocational training programmes (Article 5 of the Convention).

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

The Committee notes the Government’s second and third reports on the application of the Convention. It notes the observations of the French Confederation of Christian Workers (CFTC) and the French Democratic Confederation of Labour (CFDT), supported by the French Confederation of Management – General Confederation of Professional and Managerial Employees (CFE–CGC), transmitted by the Government. The Committee notes that the Government has submitted comments in reply to these observations. The Committee also notes that a delegation of the French Government visited the headquarters of the International Labour Office on 14 December 2017 to discuss methods of implementation of the Convention. The Committee notes that the Amendments of 2016 to the Annexes of the Convention entered into force for France on 8 June 2017. The Committee recalls that the amendments are aimed at aligning the technical requirements of the Convention with the more modern standards adopted by the International Civil Aviation Organization (ICAO). In particular, they are intended to change the biometric in the seafarer’s identity document from a fingerprint template in a two-dimensional barcode to a facial image stored in a contactless electronic chip, as defined by ICAO Document 9393.

Articles 2 to 5 of the Convention. Seafarers’ identity documents. In its previous comment, the Committee noted the Government’s explanation of the financial and technical considerations which had not permitted the implementation of the Convention. The Committee notes that Act No. 2013-619 of 16 July 2013 amended the Transport Code to incorporate the requirement to issue seafarers’ identity documents. However, the Committee notes that section L.5512-4 of the Code provides that a decree of the Council of State shall determine the conditions of implementation, particularly with regard to the following points: (1) the biometric data of the document holder; (2) a personal identification number; (3) the period within which seafarers’ identity documents shall be delivered; (4) the fees payable; (5) the remedies and their time limits in the event of refusal, suspension or withdrawal of the document; (6) the model document and the information included in it; (7) the holder’s right of access to personal data; (8) the conditions of verification of the holders of seafarers’ identity documents; and (9) data processing storage and security measures. The Committee notes the Government’s indication that the application of the Convention in France is awaiting the publication of these regulations. The Committee notes that the CFTC emphasizes the unusual nature of the situation, as sections L.5512-1 to L5512-4 were established by the Act of 16 July 2013 and as, in France, implementation decrees must be published within a “reasonable period of time”, which has been substantially exceeded in its view. The Committee recalls the resolution adopted at the Third Meeting of the Special Tripartite Committee of the MLC, 2006, which expresses concern at the difficulties seafarers continue to have in accessing shore leave and transiting in certain ports and terminals around the world and recognizes that although an increased number of member States have ratified Convention No. 185, there still appear to be problems in ensuring the Convention works in the way that it was originally intended. Noting the efforts made to give effect to the Convention, the Committee requests the Government to adopt the necessary regulatory measures to that end.

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes the observations of the General Confederation of Labour – Force Ouvrière (CGT-FO), transmitted on 18 October 2017. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and 2016 entered into force for France on 18 January 2017 and 8 January 2019, respectively. The Committee notes the efforts made by the Government and the social partners to give effect to the Convention. Following its second review of the information and documentation available, the Committee wishes to draw the Government’s attention to the following issues.

Article II, paragraphs 1(f), 2 and 3, of the Convention. Scope of application. Seafarers or mariners (“marins”). The Committee previously noted that section L. 5511-1 of the Transport Code makes a distinction between “seafarers” (“gens de mer”), which it defines as “all persons, whether or not employees, who carry on an occupational activity in any capacity on board ship”, and mariners (“marins”), who are defined as “seafarers, whether or not employees, who carry on any activity directly related to the operation of the ship”. Noting that seafarers are excluded from the scope of application of certain provisions of Title IV of Book V of the second part of the Transport Code governing labour law (section L. 5549-2 of the Transport Code), the Committee requested the Government to indicate the measures taken or envisaged to ensure that the protection afforded by the Convention is guaranteed to all seafarers. The Government indicates in this regard that “section L. 5549-2 provides for the application to seafarers other than mariners of the rules set out in Title IV (labour law) with the exception of the provisions enumerated precisely in the present section. These exclusions from their application are due: either to the wording of the rule itself which explicitly covers all seafarers; or to the fact that the rule can only concern personnel who by their activity on board are mariners, thereby rendering its extension to seafarers other than mariners of no avail; or to the fact that the rule that is set aside does not give effect to the Maritime Labour Convention”. The Committee notes this information which replies to the point raised previously. The Committee notes that, in its observations, the CGT-FO emphasizes the situation of “mariners employed by the State through its Major Maritime Ports”, who are covered by two collective agreements (officers and mariner crewmembers) which have not been extended and are not registered. The Committee requests the Government to provide detailed information on the situation of these mariners and to indicate whether or not they are covered by the national provisions giving effect to the Convention.

The Committee noted previously that, under the terms of Decree No. 2015-454 of 21 April 2015 on the classification of seafarers and mariners, certain persons carrying on an occupational activity on board a ship are not considered to be “seafarers” within the meaning of the Convention. These persons are part of a category known as “Personnel other than seafarers”, and include performers and other entertainers, stewards, chefs, ministers of religion and persons carrying on well-being or sports activities. The Committee requested further information in this regard. Noting the absence of information on this subject, the Committee recalls that persons who regularly spend more than short periods aboard, even where they perform tasks that are not normally regarded as maritime tasks, may still be regarded as seafarers for the purpose of the Convention, regardless of their position on board. It requests the Government to provide information on the “personnel other than seafarers”, particularly with regard to the duration and frequency of the periods of work performed on board and the principal place of work of such personnel.

Article II, paragraphs 1(i), 4 and 5. Scope of application. Ships. The Committee notes that a document published in January 2018 under the authority of the Ministry responsible for maritime transport and entitled “Situation of the fleet flying the French flag” reports that: “distributed between the various registers, the French maritime transport fleet of ships over 100 UMS (Universal Measurement System) includes 75 ships registered in the French International Register (RIF), 54 ships on the metropolitan register and 36 ships on the overseas registers, including 23 in French Polynesia. The maritime service fleet consists of 102 ships registered in the French International Register (RIF), 127 ships on the metropolitan register and 14 ships on overseas registers”. The Committee notes that most of the information provided by the Government in its report relates to the metropolitan register, also known as the national register. The Committee requests the Government to provide detailed information on the manner in which effect is given to the requirements of the MLC, 2006, when it is applicable, in respect of ships registered on the various registers, including with regard to social security protection.

Regulation 1.2 and the Code. Medical certificate. The Committee notes the observations of the CGT-FO, which explains that: “medical care for seafarers is under threat due to the limited numbers of doctors for seafarers and the chronic difficulties experienced in replacing those who leave”. The Committee recalls that no seafarers may work on a ship unless they hold a valid medical certificate attesting that they are medically fit to perform their duties (Regulation 1.2, paragraph 1) and that the medical certificate shall be delivered by a duly qualified medical practitioner (Standard A1.2, paragraph 4), which implies the need for sufficient numbers of duly qualified medical practitioners. The Committee requests the Government to provide its comments in this regard.

Regulation 1.4 and the Code. Recruitment and placement. In the absence of information and specific legislation, the Committee previously requested the Government to provide information on the measures adopted to give effect to Regulation 1.4. The Committee notes with interest the adoption of Decree No. 2017-1119 of 29 June 2017 on private recruitment and placement services and the Order of 16 January 2018 on seafarers’ private recruitment and placement services.

The Committee notes that section L. 5546-1-5 of the Transport Code provides that: “I. The private seafarers’ recruitment and placement services established in France shall demonstrate, through a financial security, insurance policy or any other equivalent measures, that they have the capacity to compensate seafarers for the loss suffered in the event of the failure to meet their obligations to them.” The Committee notes that sections 3 and 7 of Decree No. 2017-1119 of 29 June 2017 establish the requirement for private recruitment and placement services to provide, in accordance with section L. 5546-1-5 of the Transport Code, a certificate of insurance for civil responsibility referring solely to the activity of the placement of seafarers. The Government, in its first report, explained that “placement, that is the matching of vacancies and jobseekers, refers to the situation in which the seafarer’s employment agreement is concluded between the seafarer who has been placed and the enterprise in which the seafarer has been placed. The placement service is not therefore the employer. The provision of labour refers to the situation in which the seafarer’s employment agreement is concluded between the seafarer provided to a user enterprise and the enterprise which provides the seafarer to the user enterprise. The latter is generally the shipowner. In French law, enterprises that provide seafarers are temporary employment enterprises, which are governed by the general regulations of the Labour Code, and maritime labour enterprises, which are envisaged in the Transport Code”. The Committee recalls that paragraph 5(c)(vi) of Standard A1.4 requires that: “A Member … shall, in its laws and regulations or other measures, at a minimum: … ensure that seafarer recruitment and placement services operating in its territory: … establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them”. The Committee, emphasizing that paragraph 5(c)(vi) of Standard A1.4 refers to recruitment and placement services, irrespective of whether they act as employers of seafarers or simple intermediaries between the shipowner and seafarers, requests the Government to indicate the provisions requiring temporary employment enterprises and maritime labour enterprises to establish the required protection.

The Committee notes that section L. 5546-1-5 of the Transport Code refers to the requirement for private seafarer recruitment and placement services to demonstrate that they have the capacity to compensate seafarers for the loss suffered in the event of the failure to meet their obligations to them. The Committee recalls that paragraph 5(c)(vi) of Standard A1.4 requires recruitment and placement services to establish a system of protection to compensate seafarers for monetary loss that they may incur as a result of the failure of the recruitment and placement service “or the shipowner” under the seafarers’ employment agreement to meet its obligations to them. Noting that the protection envisaged in the national legislation does not appear to cover the compensation of monetary loss due to a failure by the shipowner, the Committee requests the Government to indicate the measures adopted or envisaged to give full effect to paragraph 5(c)(vi) of Standard A1.4.

The Committee notes that section L. 5621-3, second indent, of the Transport Code provides that: “Where there is no procedure for approval, or where the maritime labour enterprise is established in a State in which neither the Recruitment and Placement of Seafarers Convention (No. 179), nor the Maritime Labour Convention, 2006, of the International Labour Organization, apply, the shipowner shall ensure that the maritime labour enterprise complies with their requirements”. Noting that this provision is only applicable to ships registered on the French International Register, the Committee recalls that, under the terms of paragraph 9 of Standard A1.4, each Member shall require that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories to which the MLC, 2006, does not apply, ensure, as far as practicable, that those services meet the requirements of the Convention. The Committee requests the Government to indicate the national provisions giving effect to paragraph 9 of Standard A1.4 for ships covered by the Convention and which are not registered in the French International Register.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee previously recalled the need to take measures to enable the seafarer to examine the agreement before signing it and to ensure that effect is given to paragraph 1(a) of Standard A2.1 of the MLC, 2006, under the terms of which the agreement shall be signed both by the seafarer and by the shipowner or a representative of the shipowner, whoever the employer may be. The Committee notes that section L. 5542-5 of the Transport Code gives effect to paragraph 1(b) of Standard A2.1 in relation to the requirement to ensure that seafarers are given the opportunity to examine and seek advice on the agreement before signing it. With regard to paragraph 1(a) of Standard A2.1, it notes the Government’s indication that the name of the shipowner is included on the seafarers’ employment agreement, even when the agreement is concluded with an employer who is not a shipowner. The Committee recalls that, under the terms of paragraph 1 of Standard A2.1, seafarers shall have an original of the seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner irrespective of whether or not the shipowner is considered to be the employer of the seafarer. The Committee once again requests the Government to take measures to give effect to this provision of the Convention.

Regulation 2.3 and the Code. Hours of work and hours of rest. With reference to its previous comment concerning the division of rest periods, the Committee notes the Government’s indication that the collective agreement of crew officers of transport enterprises and maritime services, extended by an Order of 3 November 2014, and the national collective agreements of the group of shipowners operating on waterways (officers and crewmembers), extended by the orders of 22 July 2016, allow derogations from the division of daily rest periods. These agreements refer to compensation in the form of leave as envisaged in section L. 5544-4 of the Transport Code. The Committee notes this information, which addresses its previous request.

With reference to its previous comment concerning the regulations applicable to the ship’s master in respect of working time, the Committee notes the Government’s explanations referring to section 5 of Decree No. 2007-1843, of 26 December 2007, under the terms of which sections 24 to 30 of the Maritime Labour Code are applicable to the ship’s master. The Committee notes this information, which addresses its previous request.

The Committee noted previously that the collective agreement of crew officers of transport enterprises and maritime services authorizes exemptions from the limits set out under the terms of paragraphs 5 and 6 of Standard A2.3. It requested information on whether any other agreements or collective agreements have been concluded allowing exemptions from the established limits. The Committee notes the Government’s indication that the national collective agreement of the group of shipowners operating on waterways for crew officers and the national collective agreement of the group of shipowners operating on waterways for crewmembers of 30 July 2015, extended by the orders of 22 July 2016, allow exemptions from the maximum weekly limit of 72 hours set out in Decree No. 2005-305 of 31 March 2005 respecting the hours of work of seafarers. The Committee notes that these collective agreements indicate however that the compensatory measures and the arrangements concerning weekly rest shall be specified in an enterprise agreement. The Committee requests the Government to provide it with copies of enterprise agreements concluded for this purpose and to indicate the manner in which the compensatory measures and arrangements concerning rest periods are determined in the absence of an enterprise agreement.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of the abandonment of seafarers. With reference to the 2014 amendments to Code of the MLC, 2006, the Committee notes that section L. 5542-32-1 of the Transport Code provides that: “I. The shipowner shall guarantee the payment or reimbursement of the cost of repatriation and of care for seafarers engaged in international voyages or on fishing vessels, under the conditions set out in the present Chapter. II. The shipowner shall meet the requirement set out in I by means of a financial security, insurance or any other equivalent measure”. The Committee draws the Government’s attention to the following questions contained in the revised version of the report form for the Convention: (a) does the national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment (if yes, please specify whether the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned)?; (b) under the national legislation, what are the circumstances under which a seafarer is considered abandoned?; (c) does the national legislation provide that ships to which Regulation 5.1.3 applies must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, please specify whether the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and whether a copy must be posted in a conspicuous place on board)?; (d) does the national legislation require the financial security system to be sufficient to cover outstanding wages and other entitlements, all the expenses incurred by the seafarer (including the cost of repatriation) and the essential needs of the seafarer, as set out in paragraph 9(c) of Standard A2.5.2?; and (e) does the national legislation provide for at least 30 days notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee notes that the Government, in its first report, did not provide an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (paragraph 2 of Regulation 2.5), and explained that “as the insurance contract is subject to the principle of freedom of contract, the French administration has not produced a model insurance contract”. The Committee recalls that a “model insurance contract” is not required, but an example of the kind of documentation that is accepted or issued, and once again requests the Government to provide that documentation. The Committee requests the Government to provide answers to the above questions, indicating in each case the applicable national provisions.

Regulation 3.1 and the Code. Accommodation and recreational facilities. The Committee notes that section 215 of the regulations annexed to the order of 23 November 1987, which contains detailed provisions giving effect to Regulation 3.1 and the associated requirements of the Code, applies “1. … in the absence of specific provisions to the contrary … to any ship of overall length equal to or over 12 metres engaged in navigation over 20 miles from the nearest land. 2. For any commercial or fishing vessel of a length of under 12 metres, the chief of the ship safety centre, or the competent study commission, shall determine the applicable provisions taking into account the construction characteristics of the ship and the particular conditions of navigation. 3. For any commercial or fishing vessel engaged in navigation less than 20 miles from the nearest land, the authority competent for the examination of plans and documentation may, insofar as the organization of the work and the conditions of use of the vessel involve the accommodation and catering for all of some of the crew on board, and in light of the number and functions of the crewmembers, determine the application to such vessels of the measures set out in the present section”. The Committee recalls that Regulation 3.1 and the associated requirements of the Code apply to all ships, within the meaning of the MLC, 2006, subject to the derogations and exemptions specifically determined. The Committee requests the Government to indicate the manner in which the laws and regulations and other measures adopted at the national level give full effect to Regulation 3.1 and the associated requirements of the Code in relation to all ships, within the meaning of the MLC, 2006.

With reference to its previous comment on how the requirement is met to consult the shipowners’ and seafarers’ organizations concerned, as required by various provisions of Standard A3.1, the Committee notes the Government’s indication that “in accordance with the provisions of Decree No. 84-810 on the preservation of human life at sea, the prevention of pollution, safety and the social certification of ships, studies of passenger ships and special ships covered by the requirement of certification under the terms of the Convention shall be submitted to the Central Safety Commission. Moreover, the exemption from the Convention of ships other that passenger ships and special ships shall also be submitted to the Commission. The Commission, under the authority of the Minister responsible for maritime affairs, shall examine the plans and documentation concerning ships within its competence prior to issuing social certificates and certificates for safety and the prevention of pollution. The members of the Commission shall include of shipowners’ organizations and three representatives of the most representative trade union organizations of seafarers at the national level. Their presence shall give effect to the requirement to consult the social partners”. The Committee notes this information, which addresses its previous request.

With reference to its previous comment requesting the Government to indicate whether exemptions regarding the location of sleeping rooms have been granted for passenger ships or special ships (paragraph 6(c) and (d) of Standard A3.1), the Committee notes the explanation by the Government that studies of ships other than passenger ships and special ships are undertaken by classification societies approved by the State. However, exemptions to the regulations have to be submitted to the Central Safety Commission. In the case of ships subject to certification, no exemptions have been granted relating to the location of sleeping rooms for ships other than passenger ships and special ships since the entry into force of the Convention. The Committee notes this information, which addresses its previous request.

Regulation 3.2 and the Code. Food and catering. The Committee noted previously that Decree No. 2015-517, of 11 May 2015, on ships’ cooks provides in section 3 that “cooks shall hold a certificate of a ship’s cook where they serve on board merchant ships and recreational ships whose crew list includes at least ten persons. Exemptions from this requirement may be allowed under the conditions set out in section 5 of the Decree of 25 May 1999.” The latter Decree provides that exemptions may be granted for a period not exceeding six months. The Committee recalled that, in accordance with paragraph 6 of Standard A3.2, such exemptions may be allowed but are valid only until the next convenient port of call or for a period not exceeding one month. The Committee notes the Government’s indication that it has taken note of the Committee’s comments and that section 3 of Decree No. 2015-517, of 11 May 2015, on ships’ cooks will be amended accordingly. The Committee requests the Government to provide a copy of the national measures adopted to make these amendments.

The Committee noted previously that the Government had not provided information on the frequency and procedures for documented inspections carried out on board ships by or under the authority of the master with respect to: supplies of food and drinking water; the spaces and equipment used for the storage and handling of food and drinking water; and the galley and other equipment for the preparation and service of meals (Standard A3.2, paragraph 7). The Committee notes the Government’s indication that regular inspections are conducted on board by the services of ship safety centres and seafarers’ health services, particularly in relation to current section 215-23 of the regulations annexed to the Order of 23 November 1987. The Committee notes however that these inspections do not correspond to those that shall be carried out by the master or under his authority and it requests the Government to take the necessary measures to give full effect to paragraph 7 of Standard A3.2.

Regulation 4.1 and the Code. Medical care on board ship and ashore. With reference to sections L. 5549-4 and L. 5542-21 of the Transport Code, the Committee previously requested the Government to indicate the measures ensuring that medical care and health protection services are provided free of charge to all seafarers, within the meaning of the Convention, on board ship or landed in a foreign port (paragraph 1(d) of Standard A4.1), without any distinction between illnesses whether or not they are contracted while embarked or on the ship’s service, as is the case with sections L. 5542-21 (for mariners) and L. 5549-4 (for seafarers other than mariners) of the Transport Code. The Committee notes the Government’s explanation in this respect that “whether in a port of call or a foreign port, if seafarers have to consult a health service on board or when landed, they are “embarked” on a ship in both physical and administrative terms. In this case, section 5549-4 of the Transport Code applies. … The indication “while embarked” does not remove the responsibility of the shipowner to cover the illness or injury in a port of call. The same section specifies that these provisions do not have the effect of replacing the provisions of the Code of Social Security in relation to the coverage and reimbursement of the cost of benefits in kind by the social security scheme covering the person. Accordingly, illnesses contracted prior to embarkation are covered by the social protection scheme of the seafarers”. The Committee notes this information, which addresses its previous request.

With regard to the requirement to have on board radio or satellite communication equipment and to carry an up-to-date list of the required coordinates to obtain medical advice by radio or satellite from persons on land during the voyage (Standard A4.1, paragraphs 1(b) and 4(d)), the Committee previously requested the Government to specify the legislative or regulatory provisions imposing this requirement. The Committee notes the Government’s indication that remote medical consultation is ensured by the Maritime Medical Consultation Centre of the University Hospital Centre of Purpan (Toulouse), in accordance with Directive 92/29/EEC of 31 March 1992 and an order of 10 May 1995 adopted for this purpose. The Committee notes this information, which addresses its previous request.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee previously requested the Government to indicate the texts establishing the obligation of the shipowner to bear the cost of medical and other expenses incurred by the injury or illness of a seafarer put ashore and to pay the seafarer’s wages for one month or up to the date of repatriation, if it takes place after this period. The Committee notes that the Government refers in particular to section L. 5542-26 of the Transport Code and to section 3 of the Decree of 17 June 1938 on the restructuring and consolidation of the seafarers’ insurance scheme. The Committee previously requested the Government to provide information on the existence of circumstances in which the shipowner’s liability for the defrayal of the expense of medical care and board and lodging and for burial expenses is assumed by the public authorities (Standard A4.2.1, paragraph 6). The Committee notes that the Government refers in particular to the Decree of 17 June 1938 on the restructuring and consolidation of the seafarers’ insurance scheme. The Committee notes this information, which addresses its previous request.

The Committee previously requested the Government to indicate the provisions giving effect to Standard A4.2.1, paragraph 7 on the safeguarding and return of property left on board. The Committee notes that the Government refers to section L. 5542-21, fourth indent, of the Transport Code, which provides that, in the event of the death of the seafarer, the employer shall bear the cost of their burial expenses, including the repatriation of the body and of their personal property. The Committee recalls that Standard A4.2.1, paragraph 7 requires shipowners or their representatives to “take measures for safeguarding property left on board by sick, injured or deceased seafarers” and for returning it to them or to their next of kin. This provision therefore does not only concern cases in which the seafarer has died. The Committee requests the Government to adopt the necessary measures to give full effect to Standard A4.2.1, paragraph 7.

In relation to the 2014 amendments to the Code of the MLC, 2006, the Committee recalls that, pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the system of financial security to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned; (b) how do national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay; (ii) no pressure to accept payment less than the contractual amount; (iii) interim payments (while situation is being assessed) to avoid undue hardship; (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident; and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary); (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider (if yes, please specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease; (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated; and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee notes that the Government did not include with its first report an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2.1, paragraph 1(b)), and while explaining that, “as insurance contracts are subject to the principle of freedom of contract, the French administration has not produced a model insurance contract”. The Committee recalls that the request was not for a “model insurance contract”, but rather for an example of the kind of documentation that is accepted or issued, and it once again requests the Government to provide this documentation. The Committee requests the Government to reply to the above questions, indicating in each case the applicable national provisions.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee previously requested the Government to provide information on the specific measures that give effect to all the provisions of Standard A4.3, paragraphs 1 and 2, for seafarers over 18 years of age. The Committee notes the Government’s indication that “the provisions applicable to seafarers over 18 years of age are set out in Part Four of the Labour Code on occupational safety and health. The Transport Code supplements these provisions.” The Committee notes this information, which addresses its previous request.

The Committee previously requested the Government: (1) to provide information on the implementation of the requirement set out in section 7 of Decree No. 2007-1227 to establish a “single document on prevention” (“document unique de prévention – DUP”) in the maritime sector, specifying whether the content of the document is checked during the initial inspection before the ship is put into service and during subsequent periodical or unannounced inspections that are conducted pursuant to Decree No. 84-810 of 30 August 1984 on the preservation of life at sea, accommodation standards on board and pollution prevention, and to report on any consequences arising from the absence or insufficient nature of the information included in the DUP; (2) to indicate whether one or more decrees have been adopted on the basis of section L. 5545-9 of the Transport Code (working and living spaces on board ships so equipped and maintained as to ensure that their use guarantees the physical and mental health and the safety of seafarers) and section L. 5545-11 (procedures for the application to maritime shipping companies of the provisions of Book III, Part Four, of the Labour Code respecting work equipment and means of protection) and to specify any relevant texts; (3) to indicate whether any practical guidance or other documents have been published to facilitate the application by shipowners of section 51-1(I) of Decree No. 84-810, which provides that “all ships shall be designed, constructed and maintained in such a way as to ensure the protection of crew members against accidents that may be caused, inter alia, by machinery, anchors, chains and cables”; and (4) to provide information on the prerogatives of the High Council of Seafarers in the area of occupational risk prevention. The Committee notes with interest the Government’s indication that the single document on prevention is established in accordance with the provisions of sections R. 4121-1 et seq. of the Labour Code respecting the single document on the assessment of occupational risks. This document, which must be kept on board all ships, identifies hazards and risks, and preventive and protective measures. The absence of a single document is punishable by criminal sanctions. Decree No. 84 810 of 30 August 1984 and the provisions adopted for its application, and more particularly section 215 respecting accommodation standards, constitute the measures for the application of section L. 5545-9 of the Transport Code. With regard to section L. 5545-11, section 8 of Decree No. 2007-1227 of 21 August 2007 provides that the conditions for the provision, maintenance, use and training in the use of personal protective equipment provided on board ships shall be those set out in sections R. 4323-91 to R. 4323-103 of the Labour Code. The High Council of Seafarers essentially has the role of advising the Government on the prevention of occupational risks. It contributes to national policy in the field of occupational risk prevention. It also issues an annual opinion on the report on the application of international conventions relating to the welfare and repatriation of seafarers. The Committee notes this information, which addresses its previous request.

The Committee previously requested the Government to provide information on the legislative or regulatory measures governing the reporting of occupational accidents and occupational injuries and diseases in accordance with ILO guidelines. The Committee notes that the Government refers to section L. 5542-21-1 of the Transport Code, which provides that any occupational accident, injury or disease occurring on board shall be recorded and reported by the master. The Committee also notes the Government’s indication that the High Council for Seafarers issues an annual opinion on the report produced under Article 2 of ILO Convention No. 134 analysing the findings of statistical surveys of maritime occupational accidents and the occupational diseases of seafarers. Finally, the Committee notes that the web site of the Ministry of Transport provides a link to a document entitled “Maritime occupational accidents and diseases: Assessment 2015”. The Committee requests the Government to provide any updated version of this assessment.

The Committee previously noted the Government’s indication that a decree was being prepared to establish a requirement to set up a ship’s safety committee, in which the seafarers’ safety representative would participate. The Committee notes the Government’s indication that this decree is still under preparation. The Committee notes the observations of the CGT-FO expressing alarm at the future of on board delegates. It emphasizes that the relationship between this system and bodies representing the personnel suffers from ambiguity in the wording of the Decree of 15 December 2015 concerning on board delegates. It alleges that various shipowners have already taken advantage of the introduction of on board delegates to replace bodies representing the crew with personnel delegates. In addition, as the on board delegate discharges functions related to those of the committee on safety, health and working conditions, the CGT-FO is concerned at the disappearance of this committee from the ordinance on the “new structure of social and economic dialogue in enterprises to encourage the exercise and development of trade union responsibilities”. The Committee requests the Government to provide comments in this regard and to furnish a copy of the decree when it has been adopted (Standard A4.3, paragraph 2(d)).

Regulation 4.5 and the Code. Social security. The Committee previously noted the Government’s indication that a project was under examination for the registration with the general scheme of French and foreign seafarers resident in France who serve on board ships flying the flag of a third country that has no social security agreement with France and who are not covered by private insurance. The Committee notes with interest that the Government reports the adoption, pursuant to section 31 of Act No. 2015-1702 of 21 December 2015 and implementing Decree No. 2017-307 of 9 March 2017, of the principle of compulsory registration of seafarers residing in France, when they work on a ship flying a foreign flag, with French social security schemes, through the National Maritime Invalidity Institute (ENIM) in the case of mariners and with the general scheme in the case of non-mariners. The Committee notes that section 26 of Act No. 2017-1836 of 30 December 2017 specifies the eligibility requirements for these seafarers. The Committee requests the Government to indicate which branches of social security are covered for the persons so registered.

Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime labour compliance. The Committee previously noted that, in accordance with section L. 5514-1 of the Transport Code, certification is compulsory for any ship of 500 gross tonnage or over engaged in international voyages, as required by Regulation 5.1.3, paragraph 1(a). It nevertheless requested the Government to indicate the measures extending the application of this provision to ships of 500 gross tonnage or over “flying the flag of a Member and operating from a port, or between ports, in another country”, as envisaged in Regulation 5.1.3, paragraph 1(b). The Committee notes the Government’s reply, which refers to section 120.20 of the regulations annexed to the Order of 23 November 1987. The Committee notes this information, which addresses its previous request.

Regulation 5.1.4 and the Code. Inspection and enforcement. The Committee previously noted the Government’s indication that there is no requirement to conduct systematic inspections to verify the compliance of French registered ships with the requirements of the Convention. The Committee requested the Government to provide information on the frequency of inspections in practice, and on the measures taken or envisaged to bring French legislation into conformity with Standard A5.1.4, paragraph 4. The Committee notes the Government’s explanation that the General Directorate of Labour provided a “plan of action for the inspection of commercial vessels of 500UMS or under flying the French flag” to inspection officials under its authority on 15 December 2015. This action plan is monitored by means of a dashboard. The Government specifies that the last paragraph of point 2 provides that “once the inspection has been carried out, monitoring for each vessel will require the operation to be recommenced six months before the end of the three year period”. However, the Committee notes that the Government has not provided information on the measures taken or envisaged to bring the national legislation into conformity with Standard A5.1.4, paragraph 4, irrespective of the size of the ships to be inspected. The Committee therefore reiterates its request to the Government to indicate all the measures that ensure compliance with this provision of the Convention. The Committee requests the Government to provide updated statistical information on the number and implementation of the inspections required by Standard A.5.1.4, paragraph 4, of the Convention.

The Committee previously noted that section 30 of Decree No. 84-810 of 30 August 1984 does not require the ship’s master to post a copy of the inspection report on the ship’s noticeboard for the information of seafarers, as provided for by Standard A5.1.4, paragraph 12. The Committee notes that the Government recognizes the importance of including in the regulations the requirement to post the inspection report and requests the Government to inform it of the measures adopted or under preparation for this purpose.

With regard to investigations pursuant to a major incident, the Committee noted previously that the Government referred to circular No. DRT 11/83 of 4 August 1983, under which “any fatal or very serious occupational accident” is followed by a thorough investigation by labour inspectors and the investigation report is to be sent to the central authority within 30 days of the occurrence of the accident. Recalling that the obligation to submit the report to the competent authority not later than one month following the conclusion of the investigation (Standard A5.1.4, paragraph 14) applies to any major incident, not only fatal or very serious occupational accidents, the Committee requested the Government to indicate the measures that give full effect to the Convention in this regard. The Committee notes the Government’s reference to section 8-1 of Decree No. 84-810 of 30 August 1984 respecting the conditions for the suspension of the maritime labour certificate. The Government adds that when a major incident, which may, or may not have resulted in an occupational accident, has an impact on the living and working conditions of seafarers, the vessel is detained until it once again meets the requirements established to issue the maritime labour certificate. The Committee notes this information, which addresses its previous request.

Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee previously noted the Government’s indication that there is no standard procedure for dealing with complaints on ships flying the French flag, but that the principle of law whereby all seafarers may file a complaint is laid down in section L. 5534-1 of the Transport Code. Noting that a decree on this matter was shortly to be adopted, the Committee requested the Government to provide a copy thereof. The Committee notes the Government’s indication that the decree establishing the conditions for the application of section L. 5534-1 is being finalized. The Committee requests the Government to provide a copy of the decree or the draft decree. The Committee also requests the Government to provide the text of the model for on-board complaint procedures in force in France, if such a model has been established, or of the procedures that are normally followed on ships, irrespective of the French register on which they are registered.

The Committee notes the Government’s first and second reports on the application of the Work in Fishing Convention, 2007 (No. 188). Following a first review of the available information and documents, the Committee draws the Government’s attention to the following issues. The Committee notes the efforts undertaken by the Government and social partners to implement the Convention. If considered necessary, the Committee may come back to other matters at a later stage.

Articles 2, 3 and 4 of the Convention. Scope of application. The Committee notes the Government’s indication that, except in relation to accommodation, the size of the vessel is not taken into account in terms of the protection of fishers. The Committee also notes with interest that, for other matters, the protection specifically provided for in the Convention for fishers working on vessels of a length equal to or greater than 24 metres includes those working on smaller vessels (Article 2(3)). The Committee notes the Government’s indication that fishing vessels engaged in fishing operations on waterways, lakes and canals are excluded from the scope of application of the rules that give effect to the Convention in France and that these exclusions are justified by “the low number of persons concerned and the short trips made by these vessels, which are mainly close to the shore”. The Government adds that the fishers concerned are subject to ordinary law, “namely, the Labour Code and its regulations which offer sufficient protection”.

Article 6. General principles. Implementation. Implementing measures. The Committee notes that section L. 5611-2 of the Transport Code provides that the following vessels may be registered on the French International Register: “… 3 professional fishing vessels equipped for deep-sea fishing, classified in the first category and working in areas defined by regulation”. The Committee notes that the Government’s report contains very little information on the laws, regulations and other measures governing working and living conditions on board fishing vessels registered on the French International Register. The Committee requests the Government to provide detailed information on the number of fishing vessels registered on the French International Register and other non-metropolitan registers, and the number, the place of residence and origin of fishers who work on board these vessels.

The Committee notes that section L. 5541-1-2 of the Transport Code provides that “for the application of the provisions of the Maritime Labour Convention, 2006, and the ILO Work in Fishing Convention, 2007 (No. 188) to non-salaried persons covered by section L. 5511-1 (3) and (4), a decree shall specify which of the provisions of this Book apply to them, with the necessary adjustments by reason of the non-salaried status”. Noting that the decree referred to in section L. 5541-1-2 has not been adopted, the Committee requests the Government to indicate which of the provisions of the Transport Code apply to non-salaried fishers and to provide detailed explanations of any adjustments made.

Article 14(2). Conditions of service. Manning and hours of rest. Vessels remaining at sea for more than three days. Minimum hours of rest. Exceptions. The Committee notes that section L. 5544-16 of the Transport Codes provides that an agreement or an extended collective agreement may determine, by type of vessel, navigation or category of personnel, the manner in which derogations may be made from the provisions relating to weekly and daily rest periods, in particular by providing for the organization and distribution of working periods of work during the week or over a period other than a week to take account of fishing operations at sea or other periods of intense work, constraints due to the port or weather, or the safety of the vessel at sea. The section also specifies that “the collective agreements or accords shall only be extended if they envisage: (1) measures to ensure compliance, in all circumstances, with requirements of watchkeeping; (2) the granting of consecutive rest periods to prevent fatigue; (3) the granting of leave to compensate for derogations from the limits referred to in Part I; (4) measures to control that rest is effectively taken on board and to prevent fatigue”. The Committee recalls that Article 14(2) of the Convention provides that the competent authority may permit, “for limited and specified reasons”, temporary exceptions from the rest periods laid down in paragraph 1(b). However, in these circumstances, “it shall require that fishers shall receive compensatory periods of rest as soon as practicable”. The Committee requests the Government to: (a) indicate if such collective agreements have been concluded and extended; (b) explain how it ensures that the applicable collective agreements and accords only allow for exceptions “for limited and specified reasons”; (c) indicate whether exceptions can be granted by other means than the conclusion of collective agreements that can be extended; and (d) where applicable, explain how it is ensured that compensatory periods of rest are received by fishers as soon as practicable.

Article 16(1)(b) and Annex II. Conditions of service. Fisher’s work agreement. Particulars to be included. The Committee notes that the Government refers to sections L. 5542-3 and L. 5542-4 of the Transport Code, which specify the particulars that must appear in the fisher’s work agreement. The Committee notes the Government’s indication that French law does not currently establish that the periods of rest or the registration of the vessel are particulars that must be included, as required by Annex II(c) and (p) of the Convention, but that these are likely to be added shortly. Recalling that the fisher’s work agreement must also indicate, if possible, the place at which and the date at which the fisher is required to report on board for the start of service, as well as the provisions to be supplied to the fisher, unless some alternative system is provided for by national legislation or regulations (Annex II(g) and (h)), the Committee notes that these particulars are not provided for in the legislation currently in force. The Committee therefore requests the Government to provide a copy of the measures taken or envisaged to ensure that the content of fishers’ work agreements is in compliance with the requirements of Annex II of the Convention.

Article 25. Accommodation and food. Requirement to adopt laws, regulations or other measures. The Committee notes that Part V of the Convention on accommodation and food is implemented in French law mainly by means of the Transport Code, Decree No. 84-810 of 30 August 1984 and sections 215, 227 and 228 of the General Regulations, annexed to the Order of 23 November 1987 on ship safety. The Committee notes that section 110(2) specifies the definitions of “new vessel” and “existing vessel”, without making reference to “the building contract”, as provided for in paragraph 1(a) of Annex III to the Convention. The Committee notes that section 215.1 provides that “(1) Unless provided otherwise, the provisions of this section shall apply to any vessel 12 meters in length or over sailing more than 20 miles from the nearest land. (2) For all commercial or fishing vessels under 12 metres in length, the head of the vessel safety centre, or the competent study committee, shall determine the applicable provisions, taking into account the construction characteristics and specific navigation conditions. (3) For any commercial or fishing vessel sailing within 20 miles of the nearest land, the competent authority for the examination of the plans and documentation may, insofar as the organization of the work and the operation of the vessel imply the accommodation and catering for all or part of the crew on board, and in view of the number and functions of the crew members, require the application of the measures of this section to such vessels”. The Committee notes that section 215.30, which contains specific measures of application to fishing vessels, provides that: “(1) The provisions of this chapter concern the accommodation on board fishing vessels. Unless otherwise provided in another section of this regulation, they shall apply to any vessel of 12 metres in length or more. (2) However, the competent study committee may derogate from the provisions of this section for vessels which do not normally return to their home port for periods of less than 36 hours and whose crew does not live permanently on board while in port. (3) For any vessel of less than 12 metres in length, the competent authority for the examination of plans and documents shall determine the applicable provisions taking into account the construction characteristics of the ship and the special navigation conditions”. The Committee also notes that section 227 relating to fishing vessels less than 12 metres in length contains a chapter on health and accommodation. The Committee recalls that the member State is required to ensure the application of Articles 26 and 27 of the Convention to all vessels to which the Convention applies and that the provisions of Annex I apply to all new decked fishing vessels, subject to any exclusions provided for in accordance with Article 3 of the Convention. The competent authority may, after consultation, also apply the requirements of the Annex to existing vessels, when and so far as it determines that this is reasonable and practicable (Annex III, paragraph 2). The Committee requests the Government to provide detailed explanations on the manner in which it ensures that the applicable rules relating to accommodation on board “existing vessels”, within the meaning of paragraph 1(a) of Annex III, meet the requirements of Article 26 of the Convention. The Committee requests the Government to provide detailed information on the measures adopted pursuant to paragraphs 2 and 3 of section 215.1 and paragraph 3 of section 215.30.

Article 28(1) and Annexe III, paragraphs 14, 15 and 16. Accommodation and food. Openings into and between accommodation spaces. Concerning vessels under 12 metres, the Committee notes that section 227-8.01 contains measures giving effect to the provisions on accommodation and food but does not specify that there shall be no direct openings into sleeping rooms from fish rooms and machinery spaces except for the purpose of emergency escape (paragraph 16 of Annex III of the Convention). The Committee requests the Government to indicate the measures taken or envisaged to give full effect to this provision of the Convention.

Article 28(1) and Annex III, paragraphs 44–50. Accommodation and food. Sleeping rooms. The Committee notes that several requirements in Annex III do not appear to be reflected in the General Regulations annexed to the Order of 23 November 1987. They do not specify that the maximum number of persons to be accommodated in any sleeping room shall be legibly and indelibly marked in a place in the room where it can be conveniently seem (Annex III, paragraph 44). Section 215 does not specify the minimum inside dimensions of the berths for vessels 12 metres in length and over (Annex III, paragraphs 45–47). They do not require a desk suitable for writing, with a chair to be provided on vessels of 24 metres in length and over (Annex III, paragraph 49) nor that sleeping accommodation shall be situated or equipped, as practicable, so as to provide appropriate levels of privacy for men and for women (Annexe III, paragraph 50). The Committee requests the Government to indicate the measures adopted or under preparation in order to give full effect to paragraphs 44–47, 49 and 50 of Annex III.

Article 28(1) and Annex III, paragraph 67. Accommodation and food. Sick bay. The Committee notes that section 215.14 provides that any vessel with a crew of 12 persons or more and making crossings of over 48 hours shall be equipped with a sick bay. Vessels of less than 500 gross tonnage sailing within 20 miles of the nearest land may be exempted from this requirement. The Committee recalls that paragraph 67 of Annex III provides, without taking into consideration the type of navigation, that for vessels of 45 metres in length and over, there shall be a separate sick bay. The space shall be properly equipped and shall be maintained in a hygienic state. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to paragraph 67 of Annex III.

Article 34. Medical care, health protection and social security. Social security. Ordinary residence. The Committee notes that section L. 5551-1 of the Transport Code provides that “mariners shall be registered with the seafarers’ old-age insurance scheme, when they are engaged in an activity directly related to the operation of the ship, within the meaning of section L. 5511-1: (1) Seafarers on board a ship flying the French flag and operating in commerce, fishing and aquaculture and pleasure boat sailing; (2) In accordance with the Maritime Labour Convention, adopted in Geneva on 7 February 2006, seafarers residing in France in a stable and ordinary manner and embarked on a ship flying the flag of a foreign State other than a ship referred to in section L. 5561-1 of the Code, if they fulfil the following conditions: (a) they do not fall within the scope of section L. 311-3(34) of the Social Security Code; (b) they are not subject to the social security legislation of a foreign State pursuant to European Union regulations or international social security agreements concluded with France; (c) they are not covered by social protection at least equivalent to that provided for in section L. 111-1 of the Social Security Code”. The Committee also notes the Government’s indication that there is a pension fund (old-age insurance) and a provident fund which intended to provide full social security protection for fishers. The Committee notes that, at this stage, the criterion of ordinary residence for the extension of protection, is only provided for in relation to the Maritime Labour Convention, 2006. The Committee recalls that Article 34 of Convention No. 188 provides that each Member shall ensure that “fishers ordinarily resident in its territory”, and their dependants to the extent provided in national law, are entitled to benefit from social security protection under conditions no less favourable than those applicable to other workers, including employed and self-employed persons, ordinarily resident in its territory. The Committee requests the Government to indicate the measures adopted or under preparation to give full effect to Article 34 of the Convention.

Article 36. Medical care, health protection and social security. Social security. Cooperation. The Committee notes that the Government has not provided information on the bilateral or multilateral cooperation agreements or any other arrangement concluded with other ILO Members for the purpose of progressively achieving comprehensive social security protection for fishers, irrespective of nationality, taking into account the principle of equal treatment, and to ensure the maintenance of the social security rights which have been acquired or are in the course of acquisition by all fishers, regardless of residence. The Committee requests the Government to provide detailed information on the cooperation agreements giving effect to the requirements of Article 36 of the Convention.

Article 37. Medical care, health protection and social security. Social security. Regional economic integration organizations. The Committee notes that the Government has not provided any information on the rules concerning the social security legislation to which fishers are subject, which may have been determined through bilateral or multilateral agreements or through provisions adopted in the framework of regional economic integration organizations. Noting that France is a Member of the European Union, the Committee requests the Government to provide detailed information on the rules determined in that context.

Article 40. Compliance and enforcement. Responsibilities of the flag State. Effective jurisdiction and control. The Committee notes the Government’s indication that the French labour inspection system ensures the social control of vessels flying the French flag. A total of 41 labour inspectors are responsible for monitoring fishing vessel owners. These inspectors mainly intervene by conducting inspections which lead to the drawing up of “compliance notices” addressed to the employer. The Committee notes that Decree No. 84-810 of 30 August 1984 contains several provisions which deal with the inspection of fishing vessels, but always in connection with the issue of social certification, which concerns only a limited proportion of fishing vessels. The Committee recalls that Article 40 of the Convention provides that each Member shall effectively exercise its jurisdiction and control over vessels that fly its flag by establishing a system for ensuring compliance with the requirements of the Convention including, as appropriate, inspections, reporting, monitoring, complaint procedures, appropriate penalties and corrective measures, in accordance with national laws or regulations. The Committee also recalls that these inspections concern all fishing vessels and not only those subject to the requirement to carry on board the valid document provided for in Article 41. The Committee requests the Government to indicate the measures taken or under preparation to give full effect to Article 40 of the Convention.

Articles 41 and 42(1). Compliance and enforcement. Responsibilities of the flag State. Valid document. The Committee notes that Decree No. 2018-275 of 16 April 2018 and an Order of 21 June 2018 have been adopted to give effect to Article 41 of the Convention on the valid document. The Committee notes the Government’s indication that, in order to implement the social certification process, 29 ship safety and occupational risk prevention inspectors have been trained on Convention No. 188 (for approximately 150 vessels to be certified). It notes that, at this stage, the Government has chosen not to authorize delegated organizations to carry out inspections and issue certificates. Finally, the Committee notes that the Government has provided a copy of an inspection report for the purpose of issuing a social certificate for fishing. The Committee notes these measures with interest and requests the Government to provide information on the progress made on the implementation of the social certification process relating to fishing vessels.

Articles 43 and 44. Compliance and enforcement. Responsibilities of the flag State. The Committee notes the Government’s indication that a new section 29 of Decree No. 84-810 is in the process of being adopted, as well as a decree which should specify the conditions for handling complaints from seafarers and fishers. The Committee requests the Government to keep it informed of the adoption of these measures. The Committee notes that section L. 5548-1 et seq. of the Transport Code establish a general framework for monitoring the application of the standards of the ILO relating to the work of seafarers on board ships flying a foreign flag which calls at a French port. The Committee notes, however, that sections 41-1 et seq. of Decree No. 84-810 of 30 August 1984 on the inspection of foreign ships by means of the port State inspection, and section 150 (control of foreign vessels by the port State) of the General Regulations annexed to the Order of 23 November 1987 on the safety of ships, only refer to the Maritime Labour Convention, 2006, and the maritime labour certificate that it provides for. The Committee requests the Government to indicate the measures taken or under preparation to give full effect to Article 43 of Convention No. 188 concerning the obligations of the port State, and requests the Government to indicate whether inspectors take into account the Guidelines for port State control officers, published in 2011.

Comments adopted by the CEACR: France

Adopted by the CEACR in 2021

C094 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C149 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C071 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C036 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C081 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Matters specifically relating to labour inspection in agriculture

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C097 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C106 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Follow-up to the conclusions of the tripartite committee (representation made under article 24 of the ILO Constitution)

C118 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C125 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C131 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C137 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C142 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C152 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C185 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

MLC, 2006 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C188 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Comments adopted by the CEACR: France

Display the list by:

Adopted by the CEACR in 2021

C094 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C149 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C071 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C036 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C081 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Matters specifically relating to labour inspection in agriculture

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C097 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C106 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Follow-up to the conclusions of the tripartite committee (representation made under article 24 of the ILO Constitution)

C118 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C125 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C131 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C137 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C142 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C152 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C185 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

MLC, 2006 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C188 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)