Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes with satisfaction the adoption of territorial Act No. 2013-6 of 21 January 2013 concerning discrimination and harassment amending territorial Act No. 2011-15 (Labour Code of French Polynesia), and of territorial Act No. 2013-17 of 10 May 2013 amending Decision No. 95-215 AT of 14 December 1995, as amended, issuing the General Public Service Regulations of French Polynesia and relating to discrimination, harassment and protection of personnel. It notes that the new Acts significantly strengthen the protection of workers against discrimination by establishing a mechanism for prevention and for imposing penalties for both sexual and moral harassment.

Article 1 of the Convention. Protection against discrimination. Private sector. Legislative developments. The Committee notes that territorial Act No. 2013-6 expands the list of prohibited grounds of discrimination with the addition of the following new grounds: customs, sexual orientation or identity, age, genetic characteristics, actual or supposed membership or non-membership of a nation or race, activities in mutual benefit associations, physical appearance, family name, state of health or disability (section Lp. 1121-1 of the Labour Code of French Polynesia). The Committee notes that the prohibited grounds of discrimination covered by section Lp. 1121-1 are the same as those established by section L. 1132-1 of the Labour Code applicable in metropolitan France, with the exception of “place of residence” and “particular vulnerability resulting from the economic situation [of the person], which is apparent to or known by the person committing the discrimination”, which are grounds of discrimination that were introduced into the Labour Code in February 2014 and June 2016, respectively. The Committee also notes that the ground of “colour” referred to in Article 1(1)(a) of the Convention is covered by the ground of “physical appearance” and observes that the Government confirms that the term “origin” referred to in section Lp. 1121-1 of the Labour Code of French Polynesia refers to “national extraction” within the meaning of the Convention. The Committee notes, however, that despite the recent legislative progress, the ground of “social origin”, mentioned in Article 1(1)(a) of the Convention has not been included among the grounds of discrimination prohibited by section Lp. 1121-1 of the Labour Code of French Polynesia.

Moreover, the Committee notes that section Lp. 1121-2 has inserted in the Labour Code of French Polynesia a non-exhaustive list of aspects of employment, namely dismissal, remuneration, incentives or distribution of shares, training, reclassification, assignment, qualifications, classification, promotion, transfer and contract renewal, and access to internship or a training course in an enterprise. The Committee also notes that the section now refers explicitly to direct and indirect discriminatory measures. The Committee requests the Government to provide information on any measures taken with a view to inserting the ground of “social origin” in the list of the grounds of discrimination prohibited by the Labour Code of French Polynesia (section Lp. 1121-1) so as to cover all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention. The Committee also requests the Government to indicate the measures taken to ensure that workers are protected in practice against discrimination based on this ground. In order to extend workers’ protection against discrimination and to align it to the anti-discrimination provisions applicable in metropolitan France, the Committee invites the Government to examine the possibility of adding “place of residence” and “particular vulnerability resulting from the economic situation [of the person], which is apparent to or known by the person committing the discrimination” to the list of grounds of discrimination which are prohibited by the Labour Code of French Polynesia, and requests it to provide information on any measures taken in this respect.

Public sector. The Committee notes that territorial Act No. 2013-17 of 10 May 2013 expands the list of prohibited grounds of discrimination in respect of public service to include the following grounds: origin, sexual orientation or identity, age, family name, physical appearance, and actual or supposed membership or non-membership of a race (section 5). The Committee notes that the prohibited grounds of discrimination covered by section 5 are the same as those covered by section 6 of Act No. 83-634 of 13 July 1983 applicable in metropolitan France issuing the rights and obligations of officials, with the exception of “family situation”. The Committee notes however that despite the legislative progress made, the ground of “social origin” mentioned in Article 1(1)(a) of the Convention, is not included among the grounds of discrimination prohibited by section 5 of the General Public Service Regulations of French Polynesia. The Committee further notes that section 5 henceforth explicitly prohibits any direct or indirect distinctions between civil servants. The Committee requests the Government to provide information on any measures taken with a view to inserting “social origin” in the list of grounds of discrimination prohibited by section 5 of the General Public Service Regulations of French Polynesia so as to cover all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention. The Committee also requests the Government to indicate the measures taken to ensure that public servants are protected in practice against discrimination on the basis of social origin. The Committee invites the Government to examine the possibility of adding “family situation” to the list of grounds of discrimination prohibited by this section and requests it to provide information on any measures taken in this respect. It further requests the Government to provide information on the reasons why, in French Polynesia, the list of grounds of discrimination prohibited in the public service (section 5 of the General Regulations) is more limited than the list applicable in the private sector (section Lp. 1121-1 of the Labour Code of French Polynesia) and invites it to harmonize the protection of public officials and private sector workers against discrimination in employment and occupation.

Sexual harassment and moral harassment. Public and private sectors. The Committee notes the introduction of provisions concerning sexual harassment and moral harassment into both the Labour Code of French Polynesia (Lp. 1141-1 to 1141-12) and the General Public Service Regulations of French Polynesia. These provisions define and prohibit both quid pro quo and hostile working environment sexual harassment, and provide for the protection of victims and witnesses against any form of reprisal (sanctions, dismissal, direct or indirect discriminatory measures) and also for disciplinary sanctions against persons who commit harassment. The provisions also require the employer to take measures to prevent and address sexual or psychological harassment, including the establishment of a procedure, within the internal regulations, for reporting harassment and awareness-raising actions. The Committee requests the Government to provide information on the application in practice of sections Lp. 1141-1 to 1141-12 of the Labour Code of French Polynesia and the provisions of the General Public Service Regulations of French Polynesia on sexual and moral harassment, especially with regard to the role of the inspection services in addressing sexual or moral harassment, and also on any procedure initiated on the basis of these provisions and its results.

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