Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Labour Inspection Convention, 1947 (No. 81) - French Polynesia

The Committee notes that the transfer of the labour inspectorate pursuant to the Statute of Autonomy of French Polynesia was completed on 1 January 2009. It notes national Act No. 2010-5 of 3 May 2010 concerning labour inspection in French Polynesia. The Committee notes with interest that, under section LP 83-12 of this Act, labour inspectors now have the power to take, in accordance with Article 13(2)(b) of the Convention, any measures aimed at ensuring health protection, including the temporary stoppage of work or activities, in cases of serious risk defined in 11 situations listed in the text. Their decision is of immediate application and is not suspended if the employer makes use of the right of appeal to a higher authority (section LP 83-24 of the Act). The Committee requests the Government to provide information and statistics in its next report on the impact of this new power of direct injunction by labour inspectors on the level of compliance by employers with the legal requirements and prescriptions relating to the safety and health in workplaces characterized by a high rate of accidents.

The Committee further notes with interest that the abovementioned Act has replaced, by administrative fines, the system of penalties envisaged in the legal provisions relative to the obligation to submit a declaration prior to recruitment and to combat clandestine work, as well as in Decision No. 2000-130 APF of 26 October 2000, as amended, on professional divers and establishing specific protection measures for workers engaged in a high pressure environment and the organization of their vocational training (Chapter II of Act No. 2010-5). According to the explanations provided by the Government, this change is aimed at mitigating the near absence of repression by penal courts, the length of the procedures, and the very low amounts of the penalties imposed. Crimes as well as certain infringements still remain under penal court jurisdiction. The Committee would be grateful if the Government would supply examples of judicial decisions rendered before the adoption of Act No. 2006-20 of 28 November 2006 in cases of violation of the abovementioned legislation and administrative fines imposed since then, as well as information on the impact in terms of the evolution of the level of observance of this Act.

The Committee would also be grateful if the Government would indicate if it is intended to extend the new system of penalties to other matters relating to the conditions of work and the protection of workers while engaged in their work in order to reinforce the dissuasive effect of the repressive measures taken by labour inspectors, or if steps have been taken or envisaged to promote an effective cooperation between the labour inspection services and the justice system to the same end, as recommended in the general observation of 2007 under this Convention. The Committee also requests the Government to send the ILO a copy of Order No. 616 CM of 5 May 2009 establishing the labour inspection service of French Polynesia. It would be grateful if the Government would also provide information on the procedure for the adoption of the decision on the conditions for nomination to the positions of head of department, head of inspection and supervisors, referred to in its report received in November 2010.

Articles 3(1)(a) and (2), and 5(a) of the Convention. Additional duties assigned to controllers. Action against undeclared work. The Committee notes national Act No. 2006-20 of 28 November 2006 concerning the obligation of a declaration prior to recruitment and the action against undeclared work. With reference to its previous comments on this issue, the Committee notes that, according to the annual inspection report for 2009, the work of the labour inspectorate focused in priority on action against undeclared work and on measures to prevent falls from height in the construction and public works sector.

According to the information in the Government’s report received in 2008, since few cases are recorded of employment of foreigners without official papers owing to the geographical situation of the country, undeclared work is primarily the result of non-declaration of employees to the Social Security Fund (CPS), and controls made in this context generally lead to the regularization of the situation and not to dismissal of the employee. In the event of termination of the employment relationship under Act No. 2006-20 of 28 November 2006, workers employed in breach of the regulations are entitled to lump-sum compensation equivalent to six months’ wages, unless the application of other legal provisions would lead to a more favourable solution in accordance with national Act No. 2006-20 of 28 November 2006. However, the Government indicated in its report of 2008 that nothing has been undertaken to facilitate the implementation of this right. In the same report, the Government indicated that action against undeclared work was henceforth the subject of a meeting within an informal committee under the auspices of the Public Prosecutor and the labour inspectorate, with the participation of the monitoring service of the CPS, the gendarmerie, the police and the border police, and that common action was organized on a quarterly basis.

The Committee requests the Government to indicate the number of infringements reported in the context of action against undeclared work relating to conditions of work and the protection of workers, the legal provisions concerned, the penalties imposed and the corrective measures taken (for example, to guarantee the payment of the minimum wage and social benefits for work actually done). The Government is also requested to state in what manner the labour inspectorate ensures, in accordance with section L.341 6-1 of the Labour Code, and in the relevant provisions of the abovementioned Act No. 2006-20, that employers’ obligations are discharged with regard to work done by foreign workers who are illegally resident, where such workers are facing expulsion or removal from the country and to specify the number of regularizations for undeclared workers to the CPS.

The Committee requests the Government to also describe the procedure for the collaboration between the labour inspectorate, on the one hand, and the gendarmerie, police and border police, on the other, in the context of the informal committee which is responsible for action against undeclared work and to supply details of the joint action undertaken by this committee and the impact thereof.

Conciliation duties. With regard to its previous comments concerning the discharge of conciliation duties by the labour inspectorate in addition to their primary duties, the Committee notes with interest that, even though the regulations in force assign to controllers the task of taking action to resolve labour disputes, since 2006 all individual disputes has been handled by labour service staff and that action in cases of collective disputes has come within the competence of the labour director. The Committee requests the Government to indicate any measures taken or contemplated to ensure that the regulations in force are amended so that controllers are discharged of the duty of intervening in the resolution of labour disputes. The Government is also requested to continue to keep the ILO informed of the impact of relieving labour inspectors from conciliation duties on the exercise of their primary duties (inspection activities relating to conditions of work) and the protection of workers while engaged in their work.

Article 5. Effective cooperation between the labour inspection services and other government services and collaboration with social partners in the area of occupational safety and health. The Committee notes that cooperation is continuing between the labour inspection service and the Social Security Fund (CPS), especially its risk prevention service. In particular, it notes with interest that: (i) a guide for evaluating the main occupational hazards has been produced and disseminated; (ii) nine enterprises have been supported and monitored in this process; (iii) an information pamphlet on noise has been produced and disseminated; (iv) cooperation between occupational physicians and doctors in public health is planned with a view to improved prevention in the remote islands; and (v) the setting up of a hazard database continued in 2009 and related projects were expected to be completed in 2010. The Committee also notes that the inspection service is participating in training for trade unionists who are members of occupational safety and health committees and for new enterprise chiefs, and that a labour inspection council with an advisory function, the structure and operation of which are due to be fixed by the Council of Ministers, has been established under the auspices of the labour minister. The Committee requests the Government to keep the Office informed of all progress made through cooperation inter-institutional and collaboration with employers’ and workers’ organizations.

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