Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No. 78) - New Caledonia

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

In order to provide a comprehensive overview of the issues relating to the application of the main Conventions on the medical examination of children, the Committee considers it appropriate to examine Conventions Nos 77 and 78 in a single comment.

Article 2(1) of Conventions Nos 77 and 78. Medical examination for fitness for employment. In its previous comments, the Committee noted that section 3(1) and (3) of Decision No. 266 of 17 April 1998, issuing a number of social measures, provides that children over 14 years of age who work must undergo a medical examination with an occupational physician before being hired or, at the latest, before the end of the trial period following hiring. The Committee also noted that section 24(1) of Decision No. 50/CP of 10 May 1989 on occupational medicine provides that all employees must undergo a medical examination before being hired or, at the latest, before the end of the trial period following hiring. In its previous report, the Government indicated that all employees are required to undergo a medical examination before being hired. However, in order to maintain a certain flexibility made necessary by the constraints in respect of availability of the Occupational Inter-Enterprise Medical Service (SMIT), established under the Social Protection Fund of New Caledonia (CAFAT), this examination may be carried out right up until the end of the trial period. In this regard, the Government indicated that, since the workers involved are young persons between 14 and 16 years of age who can only be employed during school holidays, the trial period cannot exceed a period calculated on the basis of one day per week or, for a two month contract, eight days. According to the Government, the shortness of this trial period, in association with the monitoring by the labour inspectorate that the working conditions of young workers are in compliance with the constraints imposed by the regulations on the types of work that can be performed, gives full effect to the medical examination requirement. The Committee requested the Government to provide information on the application of Decision No. 266 and Decision No. 50 with a view to determining whether the possibility of carrying out the medical examination for fitness for employment at the latest before the end of the trial period following hiring occurs frequently in practice.

The Committee notes the Government’s indication in its report that the SMIT’s activity reports for 2014–15 do not contain any data on the medical examination of young persons in industry, but that it will soon call on the SMIT to include such data in its reports. The Government also indicates that there have been no changes to its legislation since its last report, but that the reform of occupational medicine is on the social agenda of 21 December 2015, and that this issue will be addressed in that context. Recalling that it has been raising this issue since 2000, the Committee urges the Government to take the necessary measures to ensure that children and young persons under 18 years of age cannot be admitted to employment by an industrial enterprise or work in non-industrial occupations unless they have been found fit for work by a thorough medical examination before being hired, in accordance with Article 2(1) of the Conventions, and not after they have been hired, which appears to be allowed by the national legislation. It requests the Government to provide information on the measures taken in this respect, and on any progress in the reform of occupational medicine.

Article 7(2)(a) of Convention No. 78. Children engaged either on their own account or on account of their parents. In its previous comments, the Committee noted that there were no specific provisions in the national legislation to ensure the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried on in the streets or in a public place.

The Committee notes that, according to the Government’s report, there have been no developments in this regard, but that this issue could be addressed as part of the reform of occupational medicine. The Committee once again reminds the Government that, under the terms of Article 7(2)(a) of the Convention, measures of identification must be adopted to ensure the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried on in the streets or in places to which the public have access (the person concerned must, for instance, be in possession of a document mentioning the medical examination). Noting that it has been raising this issue for more than 30 years, the Committee urges the Government to take the necessary measures, as soon as possible, to determine the measures of identification to ensure the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried on in the streets or in a public place, as well as the other methods of supervision to be applied to ensure the strict enforcement of the Convention, in accordance with Article 7(2) of the Convention.

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

Article 2(1) of the Convention. Medical examination. See under the Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77).

Article 7(2)(a). Children engaged either on their own account or on account of their parents. In its previous comments, the Committee had noted that the national legislation included no specific provisions for the application of the system of medical examinations for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried out in the streets or in a public place.

The Committee notes with regret that, according to the Government’s report, no development has occurred or is envisaged in this area. The Committee reminds the Government once again that, pursuant to Article 7(2)(a) of the Convention, measures of identification should be adopted to ensure the application of system of medical examinations for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried out in the streets or in places to which the public have access (the person concerned must, for instance, be in possession of a document mentioning the medical examination). Noting that it has been raising this issue for a number of years, the Committee urges the Government to take the necessary measures, as soon as possible, to determine the measures of identification to ensure the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried in the streets or in a public place, as well as on other methods of monitoring applied to ensure a strict application of the Convention, in accordance with Article 7(2) of the Convention.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

Article 2, paragraph 1, of the Convention. Medical examination. See under Convention No. 77.

Article 7, paragraph 2(a). Young persons engaged either on their own account or on account of their parents. In its previous comments, the Committee asked the Government to indicate whether the provisions of Decision No. 266 of 17 April 1998 concerning a number of social measures could serve as the basis for a system of medical examination for fitness for employment for children and young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried on in the streets or a public place. The Committee notes the Government’s indication that Caledonian labour regulations do not apply to children or young persons engaged either on their own account or on account of their parents in itinerant trading. Independent workers are excluded from the scope of the current regulations concerning the medical examination of young persons. The Committee reminds the Government that, pursuant to Article 7, paragraph 2(a), of the Convention, measures of identification shall be adopted to ensure the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried on in the streets or in places to which the public have access (the person concerned must, for instance, be in possession of a document mentioning the medical examination). The Committee asks the Government to communicate information on the measures taken or envisaged to ensure the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried on in the streets or in places to which the public have access.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information supplied by the Government in its report.

Article 2(1) of the Convention.  The Committee notes in particular that, under the aegis of the Labour Directorate in cooperation with the employers’ and workers’ organizations, Decision No. 266/CP concerning a number of social measures was adopted on 17 April 1998. It notes that, according to the Government’s reports, this text makes a medical examination, preferably before hiring, an obligation and lays down rules for the temporary employment of children of 14 years and over during school holidays. The Committee recalls that this provision of the Convention is not fully complied with unless the medical examination takes place prior to hiring. It therefore asks the Government to inform it of the measures adopted or envisaged to bring the legislation into conformity with the provisions of the Convention.

Article 7(2)(a).  The Committee recalls that in its previous comments it noted that the national legislation included no specific provisions for the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried on in the streets or in a public place. The Committee asks the Government to state whether the provisions of Decision No. 266/CP of 17 April 1998 can serve as the basis for a system of medical examination for fitness for employment for children and young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried on in the streets or a public place and, if not, what measures it has taken or envisages in order to bring its legislation into line with the provisions of the Convention.

The Committee asks the Government to enclose a copy of Decision No. 266/CP of 17 April 1998 in its next report so that the Committee can ascertain whether its provisions are consistent with those of the Convention.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 7, paragraph 2(a), of the Convention. In its previous comments, the Committee noted that there are no specific provisions in the national legislation for the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or any other occupation carried on in the streets or in a public place. The Committee notes from the Government's report that there have been no new developments in this regard.

The Committee asks the Government to take the necessary measures to ensure that the Convention is applied in this respect and to indicate any progress made.

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 7, paragraph 2(a) of the Convention. The Committee has noted the information provided by the Government in its last report. The Government states that it has not yet adopted the regulations which are necessary to determine the measures of identification to be adopted for ensuring the application of the system of medical examination for fitness for employment to children and young persons engaged either on their own account or on account of their parents in itinerant trading or in any other occupation carried on in the streets or in a public place.

The Committee hopes that the necessary measures can be taken in the near future. Please provide information on any developments in this matter.