Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42) - French Polynesia

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

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Article 2 of the Convention. Supplementary procedure for the recognition of occupational diseases. The Committee notes the Government’s indication in its report that dialogue will be organized with the social partners and the Social Welfare Fund on the development of a supplementary system for the recognition of occupational diseases. The Committee requests the Government to continue providing information on any new developments with regard to the possibility of establishing a supplementary system for the recognition of occupational diseases.

The Committee has been informed that, on the basis of the recommendations of the Tripartite Working Group of the Standards Review Mechanism (the SRM Tripartite Working Group), the Governing Body has decided that Member States that are currently bound by Convention No. 42 should be encouraged to ratify the most recent instruments, namely the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part VI (see GB.328/LILS/2/1). Conventions Nos 121 and 102 (Part VI) adopt a more modern approach to employment injury benefit. The Committee therefore encourages the Government to give effect to the decision adopted by the Governing Body at its 328th Session (October-November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider the ratification of Conventions Nos 121 and 102 (Part VI), which are the most up-to-date instruments in this field.

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

Previous comments: C.37 observation; C.38 observation; C.42 observation; and C.44 observation.

Previous comments: C.37 observation; C.38 observation; C.42 observation; and C.44 observation.

In order to provide a comprehensive overview of the issues relating to the application of the ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 37 (invalidity insurance, industry), 38 (invalidity insurance, agriculture), 42 (occupational diseases) and 44 (unemployment provision) together in a single comment.

Article 9(1)(a) of Conventions Nos 37 and 38. Disqualification from entitlement to benefits. For many years, the Committee has been indicating to the Government that section 34(1) of Resolution No. 74-22 of 14 February 1974, which provides for the possibility of the disqualification of an insured person from entitlement to benefits in the event that the invalidity is the result of inexcusable misconduct, exceeds the cases of disqualification set out in Article 9(1)(a) of the Conventions. Article 9(1)(a) of the Conventions provides that the right to benefits may only be forfeited or suspended in whole or in part if the person concerned has brought about the invalidity by a criminal offence or wilful misconduct.

In its report, the Government indicates that the Social Welfare Fund has been informed of the Committee’s comments. The Committee notes with concern that section 34(1) of Resolution No. 74-22 of 14 February 1974 has not been amended. The Committee therefore urges the Government to take all the necessary measures without delay to amend section 34(1) of Resolution No. 74-22 of 14 February 1974 in order to bring it into conformity with Article 9(1)(a) of the Conventions.

Article 2 of Convention No. 42. Diseases considered to be occupational diseases. For many years, the Committee has been drawing the Government’s attention to the need to update the schedules of occupational diseases established by Decree No. 925 CM of 8 July 2011 to ensure full compliance with Article 2 of the Convention. The Committee notes the Government’s indication that the procedure for the revision of the schedules is under consideration. In this regard, the Committee recalls that, in order to ensure full compliance with Article 2 of the Convention, the Government needs to adopt measures to: (a) ensure that the diseases and types of poisoning listed in the schedule in Article 2 of the Convention are not limited by the symptoms and pathological manifestations appearing in the left-hand column of the schedules contained in Decree No. 925 CM of 8 July 2011; (b) consider as occupational diseases those resulting from poisoning by all the halogen derivatives of hydrocarbons of the aliphatic series (Schedule No. 12); and (c) include among the types of work likely to cause primary epitheliomatous cancer of the skin any processes involving the handling or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances (Schedules Nos 16bis and 36bis).

The Committee notes with concern that the amendment of the schedules of occupational diseases contained in Decree No. 925 of 8 July 2011 is a longstanding issue. The Committee urges the Government to take all the necessary measures without delay to ensure that the national legislation is in full conformity with Article 2 of the Convention.

Article 1(1) of Convention No. 44. Establishment and implementation of a system of unemployment protection. For many years, the Committee has been drawing the Government’s attention to the need to establish a system of protection against involuntary unemployment with a view to giving effect to Article 1(1) of the Convention. In this regard, the Committee notes that, under the terms of clause 4 of the agreement to bring an end to the dispute concluded by the unions and the President of French Polynesia on 29 November 2021, the Government undertook to establish on 1 January 2023 an assistance fund for employed persons who have involuntarily lost their employment. The Committee expresses the firm hope that the Government will continue to adopt the necessary measures to establish and maintain an unemployment protection scheme which provides persons who are involuntarily unemployed with a benefit or an allowance, or a combination of a benefit and an allowance, as envisaged in Article 1(1) of the Convention. The Committee requests the Government to provide information on the progress made in the establishment of the assistance fund for workers who have involuntarily lost their employment.

The Committee has been informed that, on the basis of the recommendations of the Tripartite Working Group of the Standards Review Mechanism (the SRM Tripartite Working Group), the Governing Body has decided that Member States that are currently bound by Conventions Nos 37 and 38 should be encouraged to ratify the most recent instruments, namely the Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128), and accept the obligations of Part II, or the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting Part IX (see GB.328/LILS/2/1). Moreover, Member States currently bound by Convention No. 42 should be encouraged to ratify the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part VI. Finally, Member States which are currently bound by Convention No. 44 should be encouraged to ratify the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part IV. The Committee therefore encourages the Government to give effect to the decision adopted by the Governing Body at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider the ratification of Conventions Nos 102 (Parts IV, VI and IX) or 121, 128 (Part II) and 168, which are the most up-to-date instruments in this field.

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

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

Article 2 of the Convention. Diseases considered to be occupational diseases. The Committee notes that, following the adoption of the new Labour Code, issued by territorial Act No. 2001-15 of 4 May 2011 and Order No. 925 CM of 8 July 2011 respecting the codification of labour law, the schedules establishing the list of occupational diseases are henceforth annexed to the Labour Code in relation to section A4161-1, but have not been amended in any way.

The Committee recalls that for many years it has been requesting the Government to take specific measures to: (a) ensure that the pathological manifestations listed under each of the diseases included in the schedules of the national legislation are not restrictive; (b) remedy the absence in these schedules of an item covering, in general terms, as in the Convention, poisoning by the halogen derivatives of hydrocarbons of the aliphatic series and all phosphorous compounds (Schedule No. 12); and (c) include, among the types of work likely to cause primary epitheliomatous cancer of the skin, any processes involving the handling of the products mentioned in the Convention (Schedules Nos 16bis, 20 and 36bis).

With regard to point (a), the Government confirms that the enumeration of the symptoms or pathological manifestations which have to be present and which appear in the left-hand column of the schedules remains limitative. The list of types of work liable to cause the disease indicated in the right-hand column of the schedules are also limitative, and only workers engaged in the types of work enumerated are entitled to compensation under these occupational diseases.

With regard to points (b) and (c), the Government explains that the regulations provide that the schedules shall be established and amended by order, after obtaining the opinion of the Technical Advisory Committee (CTC), at the joint proposal of the Director of Labour and the Director of Health, and that the amendments requested for Schedules Nos 12, 16bis, 20 and 36bis could be examined at a future CTC meeting. The Committee trusts that, with a view to ensuring the full conformity of the national legislation with the Convention on points (a), (b) and (c) referred to above, the Government of French Polynesia will make every effort to persuade the Director of Labour and the Director of Health to submit to the CTC a joint proposal to make the amendments to the schedules setting out the list of occupational diseases as requested by the Committee for over 20 years. The Committee would be grateful if the Government would keep the Office informed of the opinion issued by the CTC, and the action taken on this proposal.

Supplementary procedure for the recognition of occupational diseases. The Committee recalls that in its previous observation it requested the Government to provide information on the measures taken in the field of the recording and recognition of occupational diseases with a view to optimizing the functioning of these procedures and enabling requests for recognition lodged with the social welfare fund to be examined promptly. In this respect, the Government indicates that, with a view to assisting occupational medical practitioners who have little knowledge of the cases likely to lead to the recognition of occupational diseases, a position of medical labour inspector was to be validated in the community budget at the end of 2012 or beginning of 2013. Furthermore, the country could base itself on the system established by the social security system with the establishment of a committee for the recognition of occupational diseases, consisting of a medical labour inspector, the chief medical adviser for the social security scheme and a qualified medical practitioner. If this approach to supplementary recognition is approved, the social welfare fund would have to make a prior study of their impact in terms of administration and financing. The Committee requests the Government to indicate whether it is envisaging the possibility of establishing a supplementary system for the recognition of occupational diseases and, if so, to provide information on the measures taken in this respect.

The Committee considers that, in light of the limitative nature of the schedules of occupational diseases, the establishment of a supplementary procedure for the recognition of occupational disease could undoubtedly ensure a better application of the Convention and broaden the social protection of workers against risks of occupational disease.

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

The Committee notes with regret that the Government’s report received in November 2012 does not indicate any specific measure taken for over 20 years to: (a) ensure that the pathological manifestations enumerated under each of the diseases indicated in the schedules of the national legislation are of a non-restrictive nature; (b) remedy the absence in the schedules of an item covering, in general terms, as in the Convention, poisoning by the halogen derivatives of hydrocarbons of the aliphatic series and by all of the compounds of phosphorous; and (c) include among the types of work likely to give rise to primary epitheliomatous cancer of the skin, any process involving the handling of the products indicated in the Convention.

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

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee observes that it has drawn the Government’s attention for many years to the need to take certain measures in order to give effect to the Convention. It notes that the latest information from the Government shows that no progress has been made in the application of the Convention, either in law or in practice. Hence a system for the recording and reporting of occupational diseases has still to be established and, apart from the gaps in the legislation reiterated below, it appears that medical practitioners have little knowledge of cases which are likely to be recognized as being occupational in origin. In this respect, a medical inspector of labour is due to be recruited soon in order to conduct an information campaign for medical practitioners and occupational health physicians. In addition, the Social Welfare Fund is not bound by any deadline for investigating claims seeking the recognition of occupational diseases and appears to have recorded only five cases during the period covered by the last report. Finally, unlike metropolitan France, French Polynesia has no supplementary system for the recognition of occupational diseases enabling a disease which is not in the schedule to be recognized as such.

In these circumstances, the Committee is bound to draw the Government’s attention once again to the need to amend the schedules listing occupational diseases attached to Order No. 826/CM of 6 August 1990. It hopes that the Government will be in a position to describe in its next report the measures taken to ensure full conformity of the national legislation with the Convention on the following points: (a) the need for the pathological manifestations listed under each of the diseases included in the schedules of the national legislation to be indicative in nature; (b) the inclusion into these schedules of an item covering in general terms, as in the Convention, poisoning by all halogen derivatives of hydrocarbons of the aliphatic series and by all phosphorus compounds; and (c) the inclusion, among the trades likely to cause primary epitheliomatous cancer of the skin, of all processes involving the handling of products mentioned by the Convention. Please also supply any additional information with regard to the measures taken in the field of recording and recognizing occupational diseases in order to optimize the functioning of these procedures and enable requests for recognition lodged with the Social Welfare Fund to be examined promptly.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

With reference to the Committee's earlier comments, the Government states that no new measure has been taken with regard to the application of the Convention. The social partners and the French Polynesian authorities are still involved in the process of adapting and modernizing the labour legislation applicable, a process for which the timetable has been determined in agreement with the social partners. The Committee notes this information. It must again draw the Government's attention to the schedule listing occupational diseases which is annexed to Order No. 826/CM of 6 August 1990, which has the same characteristics as the schedules prescribed in sections L.461-2 and R.461-3 of the French Metropolitan Social Security Code. The Committee trusts that the Government will be able to indicate in its next report that the necessary measures have been taken to ensure that national legislation is in full conformity with the Convention on the following points: (a) the restricted nature of the pathological manifestations listed under each of the diseases included in the schedules of the national legislation; (b) the absence from these schedules of an item covering in general terms, as in the Convention, poisoning by all halogen derivatives of hydrocarbons of the aliphatic series and by all compounds of phosphorus; and (c) the omission, from among trades likely to cause primary epitheliomatous cancer of the skin, of processes involving the handling of certain products mentioned by the Convention.

The Committee also requests the Government to refer to the observation it is addressing to metropolitan France in respect of the application of Convention No. 42.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

With reference to its previous comments, the Committee notes that according to the Government's last report there has been no change concerning the schedule enumerating occupational diseases which is annexed to Order No. 826/CM of 6 August 1990 and has the same characteristics as the schedule prescribed in sections L.461-2 and R-461-3 of the Social Security Code of Metropolitan France. In these circumstances, the Committee can only once again express the hope that the necessary measures will be taken shortly to bring the national legislation into full conformity with the Convention on the following points: (a) the restrictive nature of the pathological manifestations listed under each of the diseases included in the schedules of the national legislation; (b) the absence from the those schedules of an item covering in general terms, as in the Convention, poisoning by all halogen derivatives of hydrocarbons of the aliphatic series and by all compounds of phosphorous; and (c) the omission, from among trades likely to cause primary epitheliomatous cancer of the skin, of processes involving the handling of certain products mentioned by the Convention.

The Committee also asks the Government to refer to the observation it is addressing to France with regard to the application of Convention No. 42, as follows:

For many years the Committee has been drawing the Government's attention to the need to bring national legislation into full conformity with the Convention on the following points: (a) the restrictive nature of the pathological manifestations listed under each of the diseases included in the schedules of the national legislation; (b) the absence from those schedules of an item covering in general terms, as in the Convention, poisoning by all halogen derivatives of hydrocarbons of the aliphatic series and by all compounds of phosphorous; and (c) the omission from among trades likely to cause primary epitheliomatous cancer of the skin of processes involving the handling of certain products mentioned by the Convention.

The Committee therefore expressed the hope in its previous observation that the establishment of a new supplementary system for the recognition of occupational diseases - which the Government had stated would make it possible to compensate a disease not included in a schedule but that is attributable on a case by case basis to certain specific working conditions - could lead to the adoption of the necessary measures to give effect to the Convention.

In its latest report, the Government notes the establishment, under the terms of section 7 of Act No. 93.121 of 27 January 1993 (amending section L.461-1 of the Social Security Code), of a supplementary system for the recognition of occupational diseases based on an individual examination of cases carried out by the regional committees for the recognition of occupational diseases established under Decree No. 93.683 of 27 March 1993. This system makes it possible for workers who suffer from a disease that is not included in a schedule or which does not meet the criteria contained in the schedule, to claim compensation in respect of occupational diseases provided that the occupational nature of the disease is demonstrated in an adversarial investigation of the claim by the regional committees for the recognition of occupational diseases. The procedure for recognition established for workers suffering from a disease that is not included in one of the schedules of occupational diseases is nevertheless only available in cases in which the disease has caused the death or permanent incapacity of at least 66.66 per cent under the terms of Decree No. 93.692 of 27 March 1993 (section R.461-8 of the Social Security Code).

The Committee notes this information with interest. It also notes the guide prepared by the Ministry of Labour for the regional committees for the recognition of occupational diseases. The Committee notes in particular that, as regards cases of serious diseases covered by paragraph 4 of section L.461-1 of the Social Security Code, although the existence of a direct and fundamental connection between the disease and the normal occupational activity of the victim is required for the recognition of the occupational origin of the disease, this connection does not necessarily exclude the effect of factors other than those of an occupational nature. In this latter case, it is nevertheless necessary for occupational factors to constitute the determinant and overwhelming causal factor in the emergence of the disease. The guide also contains certain methodological indications for the use of the committees concerning the diseases that are likely to arise most frequently in the context of the procedure referred to in paragraph 4 of section L.461-1.

The Committee recalls that the Convention, with its enumeration under each of the diseases included in its schedule of the occupations and industries liable to cause these diseases, is intended to relieve workers in the above occupations and industries of the obligation to provide proof that they have in fact been exposed to the risk of the disease in question, which may in certain cases be particularly difficult to demonstrate. In this context, the Committee notes that, according to the above guide prepared by the Ministry of Labour, the file that has to be submitted to the regional committee by the primary Fund must endeavour to describe the medical characteristics of the disease and the technical nature of the exposure, as well as providing any relevant information concerning the pathological case history of the victim and, where appropriate, the non-occupational pathogenic factors to which the victim may have been exposed. The attribution of the disease to risk factors has to follow the usual procedures. The analysis of the symptoms and the evaluation of the diagnosis are determinant factors in the attribution of the disease, as well as the examination of the chronological relationship between exposure and the onset of the disease, with particular importance being attached, where appropriate, to any delay in the appearance of symptoms and any reincidence following further exposure. The elements in the file must not be confined to the last identified employer. Finally, the investigation must be adversarial in its nature and include all the expert opinions that can contribute information on the disease from which the claimant suffers, on his or her working conditions and the circumstances surrounding the exposure to the alleged harmful agents. All of the proof produced must also be communicated to the parties concerned, who have full latitude to produce the opinions and documents which appear to them to be necessary.

In view of the objectives of the Convention as recalled above, the Committee would be grateful if the Government would provide detailed information on the effect given in practice to the new supplementary system for the recognition of occupational diseases, particularly with regard to the establishment of the direct and fundamental link between the disease with the normal occupational activity of the victim (as set out in paragraph 4 of section L.461-1 of the Social Security Code) and the furnishing of proof in the specific cases of the diseases included in the schedule attached to the Convention. It also requests the Government to provide information on the outcome of any procedures initiated before the regional committees for the recognition of occupational diseases where they relate to the diseases included in the above schedule to the Convention.

The Committee hopes that, as emphasized in the guide prepared for the regional committees, the implementation of the new procedure for the recognition of occupational diseases will also lead to the adoption of legislative measures to supplement the schedules contained in French legislation in accordance with the objectives of the Convention. Furthermore, with regard to workers suffering from partial permanent incapacity, the Committee considers that the determination of a minimum rate of 66.66 per cent considerably limits the scope of the new procedure established under paragraph 4 of section L.461-1 by excluding diseases which result in a high degree of invalidity and which are liable to prejudice the social and occupational situation of the victims in a particularly significant manner. The Committee hopes that the Government's next report will contain information on all further measures which have been adopted or are envisaged in this respect.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

With reference to its previous comments, the Committee has noted with satisfaction the adoption of Order No. 826/CM of 6 August 1990 enumerating the morbid manifestations regarded as occupational diseases in French Polynesia. This Order, which repeals Order No. 30/IT of 9 January 1959, makes it possible to bring the territorial regulations into closer conformity with the Convention as regards compensation for certain occupational diseases enumerated in the schedule annexed thereto.

However, since the schedules enumerating occupational diseases which are annexed to Order No. 826/CM of 6 August 1990 have the same characteristics as the schedules prescribed in sections L.461-2 and R.461-3 of the Social Security Code of metropolitan France, the Committee also asks the Government to refer to the observation it is addressing to France with regard to the application of Convention No. 42.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

With reference to its previous comments, the Committee notes the Government's statement that it is necessary to draw up a new Order which will first be submitted to the administrative board of the social insurance fund for its opinion. The Committee hopes that the above Order will be adopted in the near future and that it will take into account its previous comments which dealt with the following points:

1. The table annexed to Order No. 30/IT of 1959 contains, under each disease (left-hand column) a restrictive list of pathological manifestations deemed to be occupational, whereas the Convention, which is drafted on this point in general terms, covers all manifestations that can be caused by the poisonings or diseases appearing in its Schedule.

2. Anthrax infection. The list of activities corresponding to this condition (a list that is not indicative) does not contain (at No. 10 in the table) the operations of "loading and unloading or transport of merchandise" in general, as the Convention does.

3. Poisoning by phosphorus, etc. Item No. 3 of the table in the above Order refers only to white phosphorus, whereas the Convention mentions "poisoning by phosphorus or its compounds" and its sequelae.

4. Poisoning by arsenic or its compounds and its sequelae. The table in the national legislation does not contain these forms of poisoning or the corresponding activities, which is contrary to the Convention.

5. Poisoning by benzene or its homologues, their nitro- and amino- derivatives, and its sequelae. The same observation as for arsenic.

6. Poisoning by the halogen derivatives of hydrocarbons of the aliphatic series. The table of the national legislation covers only conditions caused by certain of the halogen derivatives of hydrocarbons of the aliphatic series (items Nos. 7, 8, 16 and 17, for example), whereas the Convention is drafted in general terms on this point so as to cover the conditions caused by all these substances.

7. Primary epitheliomatous cancer of the skin. The right-hand column of table No. 9 of the above Order relates only to epitheliomatous cancer caused by coal-tar pitch, whereas the Convention also covers epitheliomatous cancers that may have been caused by processes involving the handling or use of tar, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances.

The Committee requests the Government to indicate in its next report the progress achieved in this connection. [The Government is asked to report in detail for the period ending 30 June 1991.]