Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - New Caledonia

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment on Convention No. 14.

Previous comment on Convention No. 52.

Previous comment on Convention No. 101.

Previous comment on Convention No. 106.

Previous comment on Convention No. 106.

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working hours, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest in industry), 106 (weekly rest in commerce and offices), 52 (holidays with pay) and 101 (holidays with pay (agriculture)) together.

A. Weekly rest

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. In response to the Committee’s previous comment concerning section Lp. 231-9 of the Labour Code, the Government indicates in its report that, where weekly rest is deferred under this section, compensatory rest is generally taken within a rolling period of eight days, even though, in theory, it is possible for an employer to have their employees work 12 consecutive days without rest. The Government specifies that enterprise agreements determine the arrangements for the duration of work in the form of work cycles, specifying the periods for taking weekly rest. In workplaces that operate continuously, the work cycle is usually established as four days of work followed by four days of rest, with weekly rest within a rolling period of one week maximum. The Committee notes this information, which responds to its previous request.

In addition, the Committee notes that, in response to its previous comment concerning section Lp. 221-5 of the Labour Code, the Government indicates that replacement compensatory rest provided for in this section is an alternative to overtime pay. With regard to section Lp. 231-5 of the Labour Code, section 22 of the Territorial Occupational Agreement for the mining and quarrying industries, and section 22 of the Occupational Agreement of the commercial and allied sector, the Committee notes that the Government does not provide any new relevant information. In this regard, the Committee recalls that: (i) section Lp. 231-5 of the Labour code provides that industries that process perishable goods, or that have to respond at certain times to an exceptional increase in workload, have, under certain conditions, the possibility of suspending employees’ weekly rest and that the hours worked on the days of weekly rest are considered overtime; (ii) section 22 of the Territorial Occupational Agreement for the mining and quarrying industries provides that for hours worked on the day of weekly rest, in addition to the usual hours, particularly to do an urgent job, a 75 per cent supplement for inconvenient hours shall be paid, including the overtime pay; and (iii) section 22 of the Occupational Agreement of the commercial and allied sector provides that, for hours worked exceptionally on the day of weekly rest, a 75 per cent supplement shall be paid where such work cannot be compensated by rest. In addition, the Committee notes that, under section 52 of the Territorial Occupational Agreement, where shift work requires overtime work on a Sunday, the pay is increased by 50 per cent of the usual rate. The Committee notes that the above provisions are not in conformity with Article 5 of Convention No. 14 (each Member shall make, as far as possible, provision for compensatory periods of rest for exceptions, in the form of suspensions or diminutions, under the principle of weekly rest) and Article 8(3) of Convention No. 106 (where temporary exemptions are made the persons concerned shall be granted compensatory rest of a total duration at least equivalent to 24 consecutive hours within each 7-day period). The Committee therefore requests the Government to take the necessary measures to ensure the full application of Article 5 of Convention No.14 and Article 8(3) of Convention No. 106 in national law and practice, and to provide detailed information on all measures taken or envisaged in this regard.

Furthermore, the Committee requests the Government to provide information concerning compensation for hours worked, in accordance with section Lp. 231-6 of the Labour Code, on the weekly day of rest for workers in ports, landing stages and stations engaged in the loading and unloading of goods.

Lastly, the Committee notes that in the absence of a legal framework on the working hours for public service workers, a study is under way of a draft regulation defining, inter alia, the terms of compensation or otherwise for hours worked on a Sunday. The Committee requests the Government to provide information on any measure taken or envisaged with a view to adopting a regulation defining the terms of compensation for hours worked on a Sunday in the public sector.

B. Annual holiday with pay

Articles 2(3)(b) of Convention No. 52 and 5(d) of Convention No. 101. Exclusion of interruptions of attendance of work due to sickness from the annual holiday with pay. In its previous comment, the Committee noted that section 72(2) of the Territorial Inter-Occupational Agreement and section 46(2) of the Occupational Agreement of the agricultural branch, which 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, are not in conformity with Article 2(3)(b) of Convention No. 52 and Article 5(d) of Convention No. 101, respectively. The Committee notes that the Government’s reports do not contain any new information on this matter. The Committee requests the Government to take the necessary measures to ensure the full application of Article 2(3)(b) of Convention No. 52 and Article 5(d) of Convention No. 101 in national law and practice, and to provide detailed information on all measures taken or envisaged in this regard.

Article 4 of Convention No. 52 and Article 8 of Convention No. 101. Invalidity of any agreement to forgo a holiday with pay. Further to its previous comments, the Committee notes that the Labour Code still does not contain provisions on the invalidity of any agreement to forego holiday with pay. The Committee recalls that Article 4 of Convention No. 52 and Article 8 of Convention No. 101 provide that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, it being understood that this principle applies to annual holiday with pay as established by each Member State having ratified the Conventions, whatever its duration. The Committee requests the Government to take the necessary measures to bring its legislation into conformity with the above Articles of Conventions Nos 52 and 101, and to provide detailed information on any measures taken or envisaged in this regard.

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

Article 8(3) of the Convention. Compensatory rest. The Committee notes that, in accordance with section Lp. 231-5 of the Labour Code, industries that process perishable goods, or that have to respond at certain times to an exceptional increase in workload, may derogate from the normal weekly rest scheme. The hours worked on the weekly rest day are treated as overtime and entered as credited additional hours. In its most recent report, the Government refers to section Lp. 221-5, which authorizes the social partners to provide, by collective agreement, for the replacement of overtime pay by compensatory rest 125 per cent for the first eight hours and 150 per cent thereafter. However, the Committee recalls that the Convention requires the provision of compensatory rest to be compulsory in the event of exemptions from the normal weekly rest scheme. Furthermore, the Committee notes that clause 22 of the occupational agreement of the commercial and allied sector requires that working hours performed exceptionally on the weekly rest day benefits from an increase of 75 per cent when such days cannot be compensated by rest time. The Committee therefore requests the Government to take the necessary measures to ensure that compensatory rest is granted in all cases of temporary exemptions from the weekly rest scheme, irrespective of any additional pay that may be offered, as required by Article 8(3) of the Convention.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the adoption of the new Labour Code, which took effect on 1 May 2008, Territorial Act No. 2008-2 of 13 February 2008 and Decision No. 366 of 14 February 2008, which repeal and replace the previous provisions governing annual holidays with pay.

Article 7 of the Convention. Special weekly rest schemes. The Committee notes that in section Lp.231-12, the new Labour Code allows retail food stores and hardware and do-it-yourself shops automatic and permanent exemption from Sunday rest on Sunday morning until 1 p.m., thus codifying the special scheme previously established by Decision No. 102 of 8 August 2000. In its previous direct request, the Committee recalled that Article 7, paragraph 1, of the Convention allows the introduction of special weekly rest schemes only when the nature of the work, the nature of the services provided by the establishment, the size of the population requiring such services or the number of people employed precludes the application of the normal of weekly rest scheme, and asked the Government to explain these matters in greater detail. In the absence of a specific reply, the Committee is bound to repeat its request to the Government to state what social and economic considerations would justify the introduction of such an exemption for hardware and do-it-yourself stores. The Committee also notes that the workers covered by the exemption introduced by section Lp.231-12 of the new Labour Code appear to have a half day of rest on Sunday afternoon. The Committee accordingly asks the Government to indicate the manner in which it ensures that these workers have a total of at least 24 hours of rest in the week, as required by Article 7, paragraph 2, of the Convention.

Article 8, paragraph 3. Compensatory rest. The Committee notes that according to section Lp.231-5 of the new Labour Code, the weekly rest of employees in industries that deal with perishable materials, or that have to respond at certain times to an exceptional increase in workload, may be suspended twice a month at most provided that the number of such suspensions shall not exceed six per year. The Committee also notes that hours thus worked on the day of weekly rest are treated as overtime and entered as overtime credit. The Committee would be grateful if the Government would specify whether, as Article 8, paragraph 3, of the Convention requires, compensatory rest is indeed granted to workers employed in these conditions on the weekly day of rest, regardless of the amount of overtime entered.

Part V of the report form. Practical application. The Committee asks the Government to provide general information on the application of the Convention in practice, and in particular to send copies of collective agreements that contain clauses on weekly rest in commerce and offices, extracts of reports of the inspection services indicating the number and nature of infringements recorded and the penalties imposed, information on the number of workers covered by the legislation, etc.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 7, paragraph 1, of the Convention. Special scheme for weekly rest. The Committee notes that resolution No. 293 of 4 March 1988 prescribes the methods by which the principle of Sunday rest is to be applied and the exemptions that may be granted. In particular, the resolution provides for exemptions for a limited period on the basis of an individual request (section 5) and also provides that certain types of establishment are entitled to permanent exemptions (sections 8 to 10). Following an amendment of 27 January 1994, article 10 of this resolution grants an exemption by right from Sunday rest on Sunday morning until 1 p.m. to establishments whose main activity is the sale of foodstuffs. Resolution No. 102 of 8 August 2000 extends this exemption to "hardware and home improvement outlets".

The Committee also notes that the Government has transmitted a copy of the report to the Congress of New Caledonia containing a presentation of the purpose of draft resolution No. 102. According to this report, a request for exemption was submitted by a large commercial outlet specializing in hardware and home improvement goods, on the grounds that "the store must meet the needs of those who make use of their free time at the weekend, and thus Sunday, to engage in home improvement, work on the layout of their homes and building work". The report also states that other similar outlets remain open on Sundays, despite not having requested such an exemption, that the procedure for considering exemption requests is cumbersome and that it is important to have a level playing field in the case of competing establishments in a similar situation. The resolution adopted by the Congress of New Caledonia after a favourable opinion from the Consultative Labour Committee therefore establishes a permanent exemption by right for these types of business.

The Committee is surprised to note that, according to the information provided by the Government, the large outlet mentioned above and the businesses which remain open on Sundays without authorization have been accorded equal treatment with the establishment of a permanent exemption favouring all these establishments, rather than ensuring compliance with the applicable provisions.

As it has already done in previous comments, the Committee recalls that Article 7, paragraph 1, of the Convention only allows the establishment of special regimes for weekly rest when the nature of the work, the nature of the services provided by the establishment, the size of the population requiring such services or the number of people employed precludes the application of the normal regime (in this case, the Sunday rest). As the Committee highlighted in its General Survey of 1984 on working time (paragraph 166), "in certain sectors such as commerce, however, the trend could lead to the establishment of special schemes that might not necessarily correspond to the terms of these international standards." Such exemptions in the business sector would not seem to be justifiable unless they truly respond to the basic needs of the population. The Committee again observes that hardware and home improvement outlets do not seem to count amongst the establishments meeting such needs. In this regard, the Committee refers to the Administrative Court of Paris which, in 19 decisions dated 24 November 1993 ("Mondial Décor", "Leroy Merlin", "But", "Bricaillerie" and others) ruled that the notion of prejudice to the public interest, one of the conditions for granting an exemption at the level of a prefecture "must be interpreted as the impossibility of accessing services on a Sunday which either respond to an immediate need, which cannot be postponed, or correspond to family or leisure activities which, in the case of the majority of the population, cannot take place on another day of the week without entailing serious inconvenience". The Conseil d’Etat (the highest legal and advisory body in administrative matters) also considered that, in a case involving a home improvement outlet ("Sidef-Bricorama" decision of 29 July 1983), that "such prejudice to the public may not be established when the opening hours allow the clients to make their purchases without difficulty on the other days of the week". The Committee again requests the Government to indicate any other possible grounds of a social or economic nature that might justify a weekly rest on a rotational basis in hardware and home improvement outlets. It also requests the Government to transmit copies of the extract of the deliberations of the Consultative Labour Committee with regard to draft resolution No. 102.

Furthermore, the exemption to the Sunday rest provided for by resolution No. 102 for hardware and home improvement outlets has been granted for Sunday morning up to 1 p.m. The workers governed by the weekly rest on a rotational basis regime therefore seem to have ended up with a half-day of rest on Sunday. The Committee requests the Government to provide more detailed information on the manner in which the weekly rest of its workers is ensured and, more specifically, to indicate whether they enjoy a rest of at least 24 consecutive hours during the week.

Article 8, paragraph 1. Temporary exemptions. Section 8 of Law of the Land No. 2002-020 of 6 August 2002 provides for the possibility of certain enterprises obtaining an exemption to extend the maximum duration of the working week from 48 to 60 hours under exceptional circumstances which temporarily give rise to a significant increase in the workload. The Committee requests the Government to indicate whether these exemptions have any effect on the weekly rest regime applicable within these enterprises.

The Committee requests the Government to inform it of any other developments concerning working hours since the adoption of Organic Law No. 99-209 on New Caledonia, of 19 March 1999.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that Decision No. 293 of 4 March 1988 sets out, on the basis of section 37 of Ordinance No. 85-1181 of 13 November 1985, the procedures for applying the principle of Sunday and weekly rest, in particular the occupations for which exceptions to the general principle are allowed. The Committee also notes that Decisions Nos. 313 of 22 July 1992, 468 of 27 January 1994, and 102 of 3 August 2000, extended the derogations listed in sections 8 and 10 of Decision No. 293 of 4 March 1988 regarding activities related to tourism, including commercial activities, food retail establishments and hardware and home improvement outlets.

Article 7, paragraph 1, of the Convention. The Committee recalls the conditions under which special weekly rest schemes may be applied to specified categories of persons or specified types of establishments. The Committee wishes to emphasize that the derogations from the normal weekly rest scheme can only be justified if they are applied in response to essential needs. In view of the basic criteria established in Article 7, paragraph 1, of the Convention, including all proper social and economic considerations, hardware and home improvement outlets would not appear to be among those establishments that exist to meet the essential everyday needs of the population (see section 1 of Decision No. 102 of 8 August 2000). The Committee therefore requests the Government to indicate the other reasons that might justify weekly rest based on a rotation system in such cases.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that Decision No. 293 of 4 March 1988 sets out, on the basis of section 37 of Ordinance No. 85-1181 of 13 November 1985, the procedures for applying the principle of Sunday and weekly rest, in particular the occupations for which exceptions to the general principle are allowed. The Committee also notes that Decisions Nos. 313 of 22 July 1992, 468 of 27 January 1994, and 102 of 3 August 2000, extended the derogations listed in sections 8 and 10 of Decision No. 293 of 4 March 1988 regarding activities related to tourism, including commercial activities, food retail establishments and hardware and home improvement outlets.

Article 7, paragraph 1, of the Convention. The Committee recalls the conditions under which special weekly rest schemes may be applied to specified categories of persons or specified types of establishments. The Committee wishes to emphasize that the derogations from the normal weekly rest scheme can only be justified if they are applied in response to essential needs. In view of the basic criteria established in Article 7, paragraph 1, of the Convention, including all proper social and economic considerations, hardware and home improvement outlets would not appear to be among those establishments that exist to meet the essential everyday needs of the population (see section 1 of Decision No. 102 of 8 August 2000). The Committee therefore requests the Government to indicate the other reasons that might justify weekly rest based on a rotation system in such cases.