Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - French Polynesia

Legislative developments. The Committee notes that territorial Act No. 2011-15 of 4 May 2011 concerning the codification of labour law in French Polynesia came into force on 1 August 2011 and that it does not amend the previously applicable provisions with regard to discrimination. Under the terms of section Lp. 121-1, “as regards an offer of employment, recruitment or an employment relationship, no account may be taken of the person’s origin, sex, pregnancy, family situation, membership or non-membership of a particular ethnic group, political opinion, trade union activity or religious beliefs”. It is the Committee’s understanding that the term “origin” in the national context is intended to cover “national extraction” within the meaning of the Convention, namely relating to place of birth, ancestry or foreign origin. However, it wishes to draw the Government’s attention to the fact that, even though discrimination against an ethnic group constitutes racial discrimination within the meaning of the Convention, discrimination on the basis of membership or non-membership of an ethnic group does not cover all aspects of discrimination on the basis of race or colour, and discrimination on the basis of social origin even less so. Furthermore, with regard to the scope of the provisions prohibiting discrimination, the Committee notes that they apply to “an offer of employment, recruitment or an employment relationship”. Recalling that, where legal provisions are adopted to give effect to the principle of the Convention, these must encompass at least all the grounds of discrimination listed in Article 1(1)(a) of the Convention and cover all aspects of employment and occupation including access to vocational training, access to employment and to various occupations, and also terms and conditions of employment (Article 1(3)), the Committee requests the Government:

• (i) to take the necessary steps to include race, colour and social origin in the list of prohibited grounds of discrimination;
• (ii) to confirm that the term “origin” refers to national extraction and that the prohibition of discrimination is applicable to all stages of employment, including with regard to access to vocational training and terms and conditions of employment.

In the absence of legislation to this effect, the Committee also requests the Government to indicate the manner in which workers are protected in practice against discrimination on the basis of race, colour or social origin.

Furthermore, noting that the Labour Code applicable in metropolitan France (section L1132-1) prohibits discrimination on the basis of origin, sex, customs, sexual orientation or identity, age, family situation or pregnancy, genetic characteristics, actual or supposed membership or non-membership of an ethnic group, nation or race, political opinions, activities in trade unions or mutual benefit associations, religious beliefs, physical appearance, family name, state of health or disability, the Committee requests the Government to indicate whether it is planned to extend the list of prohibited grounds of discrimination to French Polynesia to align it to the list of grounds of discrimination which are prohibited in metropolitan France.

In its previous comments the Committee noted that the Council of State, in a decision of 25 November 2009, found territorial Acts Nos 2009-8 LP/APF and 2009-7 LP/APF to be illegal. The two Acts were intended to promote access to employment for persons who have been resident for five years or persons who have been married to, co-habited with, or entered into a civil solidarity pact for two years with such persons. The Government indicates in its report that a new draft territorial act is being prepared. As in its previous comment, the Committee requests the Government to remain vigilant and monitor closely the impact of such a measure on the labour market in order to ensure that it does not have a discriminatory effect and that it covers all its beneficiaries without any distinction on the basis of race, colour, sex, religion, political opinion, national extraction or social origin. The Committee also requests the Government to send a copy of the territorial act once it has been adopted.

Sexual harassment. The Committee notes that Act No. 2012-954 of 6 August 2012 concerning sexual harassment, which is applicable to French Polynesia (section 10), amends the Penal Code by reintroducing the offence of sexual harassment into section 222-33, the Labour Code, Act No. 83-634 of 13 July 1983 (concerning public officials), the Labour Code applicable to Mayotte, and Act No. 52-1322 of 15 December 1952 establishing the Labour Code in the French overseas territories and associated territories. Under the terms of section 222-33 of the Penal Code, which is applicable to French Polynesia, “sexual harassment is the fact of repeatedly subjecting a person to remarks or conduct with sexual connotations which either undermine the dignity of the person because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation for that person. Sexual harassment is also deemed to be the fact of using, even on a non-repetitive basis, any form of serious pressure with the real or apparent aim of obtaining an act of a sexual nature, whether for the benefit of the perpetrator or for the benefit of a third party.” Penalties are also established. As regards the labour legislation applicable to French Polynesia, the Committee observes that territorial Act No. 2011-15 of 4 May 2011 concerning the codification of labour legislation in French Polynesia does not contain any provision concerning sexual harassment and notes that this Act repeals Act No. 52-1322 of 15 December 1952 establishing a Labour Code in the French overseas territories and associated territories, in so far as it applies to French Polynesia. It is therefore the Committee’s understanding that, in its current wording, the labour law applicable to French Polynesia, unlike the Penal Code, does not contain any provisions concerning sexual harassment at work (definition, prohibition, penalties, etc.). In this respect, the Committee notes that, according to the Government’s report, draft legislation concerning sexual harassment is being drawn up and is due to be adopted soon by the Assembly of French Polynesia. The Committee requests the Government to take the necessary steps without delay to prevent and prohibit sexual harassment at work (quid pro quo and hostile work environment sexual harassment) and to send a copy of the law or regulations concerning sexual harassment once it has been adopted. The Government is also requested to provide information on any criminal law proceedings instituted with regard to sexual harassment at work.

Promotion of equality of opportunity and treatment for men and women. In its previous comment the Committee noted that women were under-represented in positions of responsibility and were seriously affected by unemployment, and urged the Government to take steps to promote women’s access to employment. In its report the Government merely indicates that territorial Act No. 2011-15 establishes the principles for promoting equal opportunities for men and women. The Committee notes that section Lp. 1131-1 of the Labour Code provides for the possibility of adopting “temporary measures adopted solely for women aimed at establishing equal opportunities for men and women, particularly by rectifying de facto inequalities which affect opportunities for women”. Again emphasizing the importance of adopting proactive measures to tackle the underlying causes of gender discrimination, the Committee requests the Government to take the necessary steps without delay, and in cooperation with the social partners, to facilitate access for women to a wider range of jobs and occupations and particularly to positions of responsibility, and to provide information on the application in practice of section Lp. 1131-1 of the Labour Code. The Government is also requested to provide up-to-date information, including statistical data, on the situation of women and men in employment in the public and private sectors.

Promotion of equality of opportunity and treatment regarding grounds other than sex. The Committee encourages the Government to take the necessary steps to formulate and adopt a policy to promote equal opportunities and treatment, without any distinction on the basis of race, colour, religion, political opinion, national extraction or social origin, encompassing not only legislative or administrative measures but also public policies or programmes of action, or the establishment of specialized bodies tasked with promoting equality and dealing with complaints.

Promotion of equal opportunities for persons with disabilities. The Committee welcomes the significant increase in the number of workers with disabilities employed in enterprises, which rose from 80 in 2009 to 157 in 2010. The Committee notes the Government’s indication that this increase is due to the impact of territorial Act No. 2009-11 of 7 July 2009, which imposes on employers under public or private law who have at least 25 employees the obligation to hire workers with disabilities (4 per cent of the total workforce). The Committee requests the Government to continue to supply statistical information on the employment of workers with disabilities in enterprises with 25 or more employees, disaggregated between the public and private sectors. It also requests the Government to supply information on the application of the Act of 2009, indicating in particular infringements which have been reported and penalties which have been imposed.

Enforcement. The Committee notes the Government’s indication that labour inspection officials have neither the human nor material resources to collect and supply information on cases of discrimination identified during inspections. The Committee therefore requests the Government to take the necessary steps as soon as possible to strengthen the means of action available to the labour inspectorate with a view to enabling regular and effective enforcement in practice of the legislation relating to discrimination. The Government is also requested to supply information on any court or administrative decisions relating to discrimination and to equality in employment and occupation.