Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Article 1 of the Convention. Protection against discrimination. Private sector. Legislative developments. The Committee previously requested the Government to provide information on any measures taken to include “social origin” in the list of grounds of discrimination prohibited by the Labour Code of French Polynesia so as to cover all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention, and to indicate the measures adopted to ensure that workers are protected in practice against discrimination based on this ground. In order to extend workers’ protection against discrimination and align it with the anti-discrimination provisions applicable in metropolitan France, the Committee also invited 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 prohibited by the Labour Code of French Polynesia. The Committee notes with satisfaction that Territorial Act No. 2019-28 of 26 August 2019 has amended section Lp. 1121-1 of the Labour Code by adding the phrase “including social origin” after the ground “origin”. With regard to place of residence, the Government indicates that section 18 of amended Basic Act No. 2004-192 of 27 February 2004 on the Statute of Autonomy of French Polynesia, provides that “French Polynesia may adopt measures favouring access to waged employment in the private sector for any person having a sufficient period of residence on the territory or any person who is married, cohabiting or in a civil union with the latter […]”. The Government emphasizes its willingness to implement these provisions by submitting a territorial bill in the near future. The Committee requests the Government to provide information on the status of the territorial bill implementing section 18 of Basic Act No. 2004-192 and its impact on protection from discrimination based on “place of residence”. Lastly, in view of the absence of response on this point and in order to extend workers’ protection against discrimination and align it with the anti-discrimination provisions applicable in metropolitan France, the Committee once again invites the Government to examine the possibility of adding particular vulnerability resulting from the economic situation of the person apparent to or known by the person committing the discrimination to the list of grounds of discrimination prohibited by the Labour Code of French Polynesia, and requests that the Government provide information on any measures adopted in this regard.

Public sector. The Committee previously requested the Government to provide information on any steps taken to include “social origin” in the list of grounds of discrimination prohibited by section 5 of the General Public Service Regulations of French Polynesia and to indicate the measures adopted to ensure that public officials are protected in practice against discrimination based on social origin. It also invited the Government to examine the possibility of adding “family situation” to the list of grounds of discrimination prohibited by this section. In addition, it requested the Government to indicate the reasons why, in French Polynesia, the list of grounds of discrimination prohibited in the public service is more limited than the list applicable in the private sector and invited the Government to harmonize the protection of public officials and workers in the private sector against discrimination in employment and occupation. With regard to social origin, the Committee notes the Government’s indication that section 5 of the General Public Service Regulations of French Polynesia prohibits discrimination based on “origin”, which necessarily includes “social origin”. The Government also indicates that, in practice, because the rights and obligations of public officials are established through regulations, they are of a general and impersonal nature and therefore identical for all public officials in the same employment category, both at the time of their entry into employment (via competitive examination) and throughout their career. In this regard, the Committee recalls that social origin is one of the seven prohibited grounds of discrimination enumerated in Article 1(1)(a) of the Convention and that, when legal provisions are adopted to give effect to the principle of the Convention, they must include as a minimum all the grounds of discrimination enumerated in this Article. It also recalls that: (1) as it noted in the 2012 General Survey on the fundamental Conventions (paragraphs 802–804), in some countries, persons from certain geographic areas or socially disadvantaged segments of the population (other than persons from ethnic minority groups) face exclusions with respect to recruitment, without any consideration of their individual merits; and (2) given the persistent patterns of discrimination on the grounds set out in the Convention, in most cases there is a need for a comprehensive legislation containing explicit provisions defining and prohibiting direct and indirect discrimination on at least all of the grounds set out in the Convention, and in all aspects of employment and occupation, in order to ensure the full application of the Convention (see 2012 General Survey, paragraph 854). Indications of rising social inequalities in some countries have highlighted the continuing relevance of addressing discrimination based on class and socio-occupational categories. In this respect, the Committee recalls that discrimination and lack of equal opportunity based on social origin refers to situations in which an individual’s membership in a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs. Lastly, the Committee notes that, as indicated in the previous paragraph, the Labour Code of French Polynesia was amended in 2019 to state that the term “origin” included “social origin”.

With regard to “family situation”, the Government states that it is not formally opposed to adding this to the list of grounds of discrimination prohibited by section 5 of the General Public Service Regulations of French Polynesia if it were necessary to do so. However, referring to the Committee’s 1996 General Survey on equality in employment and occupation, it notes that the prohibition of discrimination on the ground of sex, provided for in section 5, paragraph 1, of the Regulations, also includes discrimination based on family situation. Lastly, the Committee welcomes the Government’s statement that it is not opposed to reviewing the list of prohibited grounds of discrimination established in section 5 of the General Public Service Regulations, based on the grounds provided for in the Labour Code of French Polynesia. The Committee requests the Government to indicate the steps taken to review the list of prohibited grounds of discrimination established in section 5 of the General Public Service Regulations of French Polynesia with a view to harmonizing its content with the list of grounds enumerated in the Labour Code, including with respect to “social origin”.

Sexual harassment and “moral” harassment. Private and public sectors. In its previous comment, the Committee requested the Government to provide information on the application in practice of the relevant provisions of the Labour Code and the General Public Service Regulations of French Polynesia on sexual or “moral” harassment. It notes the information provided by the Government.

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