Medical Examination of Young Persons (Industry) Convention, 1946 (No. 77) - 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 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, concerning a number of social measures, provided that children over 14 years of age who worked should 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 provided that all employees should undergo a medical examination before being hired or, at the latest, before the end of the trial period following hiring. In its report, the Government indicated that all employees were required to undergo a medical examination before being hired. However, in order to maintain a certain flexibility, particularly because of constraints in respect of availability of the Occupational Inter-Enterprise 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 were young persons between 14 and 16 years of age who could only be employed during school holidays, the trial period could not exceed a period of one day per week, or, for a two-month contract, eight days. According to the Government, the shortness of this trial period, together with the labour inspectorate’s verification that the working conditions of the young employee complied with the constraints imposed by the regulations in respect of the type of work he might perform, 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 to determine 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 that it does not have any information on the activity of the SMIT concerning the medical examination of young persons. Consequently, the Committee requests the Government to take the necessary measures to ensure that children and young persons under 18 years of age shall not be admitted to employment by an industrial undertaking unless they have been found fit for the work by a thorough medical examination before being hired, in accordance with Article 2(1) of the Convention, and not after they have been hired as apparently authorized by the national legislation. It requests the Government to send information on the measures taken in this respect in its next report.

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. In reference to its previous comments, the Committee notes that section 3, paragraphs 1 and 3, of Decision No. 266 of 17 April 1998 concerning a number of social measures [hereinafter, Decision No. 266 of 17 April 1998] provides that children over 14 years of age who work shall 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 notes that section 24, paragraph 1, of Decision No. 50/CP of 10 May 1989 on occupational medicine [hereinafter, Decision No. 50 of 10 May 1989] provides that all employees shall undergo a medical examination before being hired or, at the latest, before the end of the trial period following hiring. In its report, the Government indicates that all employees are required to undergo a medical examination before being hired. However, in order to maintain a certain flexibility, particularly because of constraints in respect of the 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 until the end of the trial period. In this regard, the Government indicates 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 of one day, or, for a two-month contract, eight days. According to the Government, the brevity of this trial period, together with the labour inspectorate’s verification that the working conditions of the young employee comply with the constraints imposed by the regulations in respect of the type of work he may perform, give full effect to the medical examination requirement.

While noting the information communicated by the Government, the Committee recalls that, under Article 2, paragraph 1, of the Convention, children and young persons under 18 years of age shall not be admitted to employment by an industrial undertaking unless they have been found fit for the work for which they are to be employed by a thorough medical examination. The Committee, noting the Government’s indication that all employees are required to undergo a medical examination before being hired, asks it to provide information on the application of section 3, paragraphs 1 and 3, of Decision No. 266 of 17 April 1998, and section 24, paragraph 1, of Decision No. 50 of 10 May 1989, and to indicate, in particular, whether the possibility envisaged by these two provisions, namely to carry out the medical examination for fitness for employment at the latest before the end of the trial period following hiring, occurs frequently in practice.

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 with interest 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.

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.

Part V of the report form.  The Committee notes the Government’s statement that the employment of young people of 14 years and over is almost exclusively in the context of occupational apprenticeships. Employment during school terms appears to be marginal despite the current lack of figures on the subject. The Committee asks the Government to supply any available information on the employment of young people of under 18 years of age, particularly information which is relevant to the provisions of the Convention.