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

Holidays with Pay Convention, 1936 (No. 52) - New Caledonia

Article 2(3)(b) of the Convention. Exclusion of interruptions of attendance of work due to sickness from the annual holiday with pay. The Committee notes that, under section R.241-5 of the Labour Code, days of sickness may not be deducted from the annual holiday. However, the Committee notes that section 72 of the Territorial Inter-Occupational Agreement provides that, should a worker fall ill during his or her holiday, no change is made to the latter because of the sickness and the holiday cannot be either extended or deferred, or give rise to additional compensation from the employer. The Committee recalls that Article 2(3)(b) of the Convention strictly forbids the inclusion of days of sickness in the annual holiday with pay. The Committee therefore requests the Government to take the necessary measures to ensure that national law and practice are in full conformity with this Article of the Convention.

Article 4. Invalidity of any agreement to forgo a holiday with pay. Further to its previous comment, the Committee notes the Government’s reference to section R.243-1 of the Labour Code, which establishes criminal penalties for infringements of the provisions relating to holidays with pay. However, the Committee recalls that establishing a system of sanctions is a requirement of Article 8 of the Convention, while under Article 4 it must be stipulated in the legislation that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, unless the legal provisions establishing the right to an annual holiday with pay are public policy provisions and consequently invalidate any agreement or accord that departs from them. The Committee requests the Government to provide clarification of this point.