Holidays with Pay Convention, 1936 (No. 52) - 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 2(3)(b) of the Convention. Exclusion of interruptions of attendance of work due to sickness from the annual holiday with pay. The Committee notes that, under section R.241-5 of the Labour Code, days of sickness may not be deducted from the annual holiday. However, the Committee notes that section 72 of the Territorial Inter-Occupational Agreement 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. The Committee recalls that Article 2(3)(b) of the Convention strictly forbids the inclusion of days of sickness in the annual holiday with pay. The Committee therefore requests the Government to take the necessary measures to ensure that national law and practice are in full conformity with this Article of the Convention.

Article 4. Invalidity of any agreement to forgo a holiday with pay. Further to its previous comment, the Committee notes the Government’s reference to section R.243-1 of the Labour Code, which establishes criminal penalties for infringements of the provisions relating to holidays with pay. However, the Committee recalls that establishing a system of sanctions is a requirement of Article 8 of the Convention, while under Article 4 it must be stipulated in the legislation that any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday, shall be void, unless the legal provisions establishing the right to an annual holiday with pay are public policy provisions and consequently invalidate any agreement or accord that departs from them. The Committee requests the Government to provide clarification of this point.

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

The Committee notes the adoption of Act No. 2008-2 of 13 February 2008 concerning the Labour Code of New Caledonia (legislative part), and Decision No. 366 of 14 February 2008 concerning the Labour Code of New Caledonia (regulatory part).

Article 4 of the Convention. Prohibition of relinquishment of holiday with pay. The Committee notes that the new Labour Code contains no provisions to give effect to this Article of the Convention, unlike the old Overseas Labour Code, which, in section 122, provided that “any agreement providing for the grant of compensation in lieu of holiday shall be void.” It requests the Government to indicate the measures taken or envisaged to reflect this principle in the legislation.

Article 7. Records. The Committee requests the Government to provide further information on the provisions of laws or regulations requiring, as did section 171 of the old Overseas Labour Code, that every employer must keep a record showing the particulars of each worker, including in respect of holidays.

Part V of the report form. Practical application. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including, for example, extracts of reports by the inspection services indicating the number and nature of contraventions recorded and the penalties imposed, information on the number of workers covered by the legislation, etc.

The Committee takes this opportunity to recall that, on the proposal of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body considered that Conventions Nos 52 and 101 were outdated and invited States parties to these Conventions to examine the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not regarded as fully up to date but remains relevant in some respects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations of Convention No. 132 for persons employed in all sectors of the economy, including agriculture, would automatically entail immediate denunciation of Conventions Nos 52 and 101 (Article 16(a) and(b)). This option would appear to be the more desirable as the relevant legislation in New Caledonia – which provides for two and a half working days of leave per month of service, with increments based on length of service – is plainly more advantageous than the requirements of Conventions Nos 52 and 101 and indeed reflects those of Convention No. 132, which establishes that the minimum holiday with pay for one year of service must be three working weeks. The Committee requests the Government to keep the Office informed of any decisions it might take regarding the possible ratification of Convention No. 132 and the consequential amendments that might be needed in order to bring the legislation into conformity with the provisions of that Convention.