Protection of Wages Convention, 1949 (No. 95) - New Caledonia

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

New Caledonia

Article 2 of the Convention. Possible exclusion of certain categories of workers. The Committee notes that, under section Lp. 111-3 of the Labour Code, the Code is not applicable to persons covered by the conditions of service of public employees or by public law. The Committee requests the Government to indicate how effect is given to the provisions of the Convention in the case of officials covered by the conditions of service of public employees or by public law.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 5, 6 and 7 of the Convention. Payment of wages directly to the workers concerned. Freedom of workers to dispose of their wages. Work stores. The Committee notes the Government’s indication in its report that no further measures have been adopted in relation to the application of these provisions of the Convention. It recalls that Article 5 of the Convention requires wages to be paid directly to the worker concerned, except as may be otherwise provided by national laws or regulations, collective agreement or arbitration award or where the worker concerned has agreed to the contrary. However, in cases where the wages are paid in cash and not directly into the bank or post office account of the worker concerned, no provision of the relevant legislation appears to require employers to pay the wages due directly to the worker.

Furthermore, under the terms of Article 6 of the Convention, employers shall be prohibited from limiting in any manner the freedom of workers to dispose of their wages. As the Committee emphasized in its 2003 General Survey on the protection of wages (para. 178), the “wording of Article 6 implies the existence of an appropriate legislative provision specifically prohibiting employers from exercising any kind of constraint on the use made by workers of their wages.” Finally, Article 7 of the Convention requires works stores to be regulated to prevent the risk of abuse. The Committee observes that such rules are contained in section R.622-12 of the Labour Code of New Caledonia, which is however only applicable to enterprises established outside New Caledonia and engaged in the provision of services with employed personnel. The Government may therefore take inspiration from this provision to establish similar rules for all workers employed on the territory of New Caledonia. The Committee hopes that the Government will adopt measures in the near future giving full effect to Articles 5, 6 and 7 of the Convention and requests it to keep the Office informed of any decisions that may be taken on that subject.

Article 9. Payment made by a worker for the purpose of obtaining or retaining employment. The Committee notes the Government’s indications that no draft text has been proposed to extend the provisions of section Lp.144-13 of the Labour Code of New Caledonia to all employed workers on its territory. Recalling the importance of this provision of the Convention to protect workers against abuses of which they may be victims at the time of recruitment, the Committee trusts that the Government will soon take measures for the extension to all workers employed on the territory of New Caledonia of the protection afforded by section Lp.144-13 of the Labour Code.

Article 12(2). Settlement of wages on termination of the employment contract. The Committee notes that section Lp.122-32 of the Labour Code of New Caledonia provides for the issue by an employed person of a receipt for the settlement of all sums due from the employer at the time of the termination or expiry of the contract of employment, declared in due form, or which is not subject to debarment. Such a receipt is only a simple receipt for the amounts indicated thereon. However, it observes that this provision does not set out any rules respecting the time limits within which the final settlement of all wages due to the worker shall be effected upon the termination of a contract of employment. The Committee requests the Government to indicate whether other legal provisions ensure that effect is given to this Article of the Convention. If not, it hopes that the Government will rapidly take measures for this purpose and requests it to keep the Office informed of any developments in this respect.

Article 13. Place and day of the payment of wages. The Committee notes the Government’s indications that in practice the great majority of wages are paid by bank transfer. It further notes that collective agreements do not contain any provisions regulating the place and day of the payment of wages when they are paid in cash. Emphasizing that workers whose wages are still paid in cash are probably also those who are in the greatest need of the protection of their remuneration, the Committee hopes that the Government will soon adopt measures giving effect to this Article of the Convention and requests it to keep the Office informed of any decision that it may take in this respect.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 1 of the Convention. Definition of wages.  The Committee notes with interest the adoption of Territorial Act No. 2008-2 of 13 February 2008 relating to the Labour Code of New Caledonia. The Committee notes the definition of the term “remuneration” contained in section Lp.141-2 of the Labour Code of New Caledonia. However, it notes that, under the terms of this section, the definition only applies to the chapter concerning equal remuneration for women and men. The Committee requests the Government to clarify whether this definition is also valid for the other chapters of title IV of the Labour Code relating to wages.

Article 4. Partial payment of wages in kind. The Committee notes the Government’s statement to the effect that the legislation and regulations of New Caledonia in this field remain unchanged. It notes, however, that section Lp.143-1 of the Labour Code of New Caledonia provides that “wages shall be paid in cash or by cheque, or by bank or postal transfer” and that “any stipulation to the contrary shall be null and void”. The Committee requests the Government to indicate whether the partial payment of wages in kind is authorized in respect of workers to whom the Labour Code applies and, if so, to send a copy of the relevant provisions.

Articles 5, 6 and 7. Wages paid directly to the worker concerned – Freedom of workers to dispose of their wages – Work stores. The Committee notes the Government’s indication in its report that the legislation has not been amended on these various points. It requests the Government to keep the Office informed of any measures taken to ensure the implementation of these provisions of the Convention.

Article 9. Payment made by a worker for the purpose of obtaining or retaining employment. The Committee notes that the provisions of section 22 of Decision No. 284 of 24 February 1988 concerning wages, to which it referred in its previous comment, are now contained in section Lp.144-13 of the Labour Code of New Caledonia. It hopes that the Government will soon be in a position to amend this provision in order to extend to all workers the prohibition on deductions from wages with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment, made by a worker to an employer or his representative or to any intermediary.

Article 12(2). Settlement of wages on termination of the employment contract. The Committee requests the Government to state which legal provisions prescribe the final settlement of all wages due to the worker, within a reasonable period of time, upon termination of the contract of employment.

Article 13. Place and day of payment of wages. The Committee notes the Government’s indications to the effect that the determination of the place and day of payment of wages is left to free negotiation by the social partners and is therefore fixed by the Territorial Interoccupational Agreement and by the collective accords and agreements specific to each branch of activity. It notes, however, that neither the Territorial Interoccupational Agreement nor the collective branch agreements of which it is aware contain provisions in this respect. It therefore requests the Government to take the necessary steps to regulate the place and time of payment of wages in cases where the latter is paid in cash, and to prohibit the payment of wages in taverns or other similar establishments and, where necessary, in shops or stores for the retail sale of merchandise, and in places of amusement, except in the case of persons employed therein.

Part V of the report form. Application in practice. The Committee requests the Government to give a general description of the manner in which the Convention is applied in practice, including, for instance, extracts from inspection reports indicating the number and nature of recorded infringements of the provisions of the Labour Code of New Caledonia relating to the protection of wages, and on the measures taken to stop them.

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

Further to its previous comments on the need to set out in specific legislation the principles laid down in several Articles of the Convention, the Committee notes the Government’s statement in its report that the Convention is fully applied and its reference in this respect to territorial Act No. 2002-021 of 20 September 2002, respecting the rules applicable to enterprises established outside New Caledonia and engaged in the provision of services with salaried employees, which amends Ordinance No. 85-1181 of 13 November 1985, as amended, respecting the guiding principles of labour law and the organization and operation of the labour inspectorate and the labour tribunal in New Caledonia, as well as Congress resolution No. 302 of 27 August 2002 giving effect to the above territorial Act (hereinafter, “resolution No. 302”). However, the Committee is bound to note that this Act, as indicated by its title, does not apply to workers employed by enterprises established on the territory of New Caledonia and that its provisions may therefore only be deemed to give effect to the Convention for a strictly limited number of workers (namely, detached workers, for a maximum period of between one and three years). The Committee therefore once again requests the Government to provide all relevant information on the application of the following provisions of the Convention.

Article 1 of the Convention. Definition of wages. The Committee notes that only section 23 of resolution No. 284 of 24 February 1988 respecting wages contains a definition of wages, namely the “amounts due in respect of remuneration to all persons employed or working, in whatever capacity or location, for one or more employers, irrespective of the amount and nature of their remuneration, the form and nature of their contract”. However, the Committee notes that this definition is only valid for the application of the provisions of the resolution relating to the attachment by order or the assignment of remuneration owed by an employer, and not for the application of the resolution as a whole. The Committee therefore requests the Government to indicate whether other provisions of laws or regulations contain a definition of wages.

Article 2. Scope of application. The Committee notes that under the terms of section 1, Ordinance No. 85-1181 of 13 November 1985 respecting the guiding principles of labour law and the organization and operation of the labour inspectorate and the labour tribunal in New Caledonia and its dependent territories (hereinafter, Ordinance No. 85-1181) is not applicable, unless otherwise provided, to persons covered by the conditions of service of public employees or by public law. The Committee requests the Government to indicate the provisions which guarantee the protection of wages for workers who are thus excluded from the scope of application of this Ordinance.

Article 4. Partial payment of wages in kind. The Committee notes sections 6 to 9 of resolution No. 302, which are in conformity with Article 4 of the Convention, but only apply to enterprises established outside New Caledonia and engaged in the provision of services with employed staff. The Committee hopes that the Government will adopt provisions in the near future which are of general application in order to give effect to this provision of the Convention, for example modelled on those contained in resolution No. 302.

Article 5. Payment of wages directly to the worker concerned. The Committee notes that under the terms of section 24 of Ordinance No. 85-1181, wages must be paid in legal tender, but that there is no provision establishing that wages must be paid directly to the worker, to the exclusion of any other person, as required by the Convention. The Committee requests the Government to indicate the manner in which compliance with this rule is ensured.

Article 6. Freedom of workers to dispose of their wages. The Committee recalls that the requirements set out in Article 6 of the Convention are intended to protect the full discretion of workers as to the use they wish to make of their wages against any kind of constraint that an employer might exert in this regard (for example, the obligation to place part of their earnings in a works savings fund). The Committee requests the Government to provide information on the measures adopted or envisaged to give effect to this provision of the Convention.

Article 7. Works stores. The Committee notes section 13 of resolution No. 302, which is in conformity with Article 7 of the Convention, but only applies to enterprises established outside New Caledonia which are engaged in the provision of services through salaried staff. The Committee hopes that the Government will adopt provisions in the near future that are of general application giving effect to this provision of the Convention, based for example on those contained in resolution No. 302.

Article 9. Payment by a worker for the purpose of obtaining or retaining employment. The Committee notes that, by virtue of section 22 of resolution No. 284 of 24 February 1988 respecting wages, it is prohibited in hotels, cafés, restaurants and similar undertakings, in artistic performance enterprises, as well as in those engaged in navigation and transport, to require workers to make payments of money or to make deductions at the time of recruitment or dismissal, or during the normal performance of work by such employed persons. However, the Committee emphasizes that the prohibition laid down in Article 9 of the Convention is general in its scope and is not therefore intended solely to protect workers in certain sectors of activity. The Committee accordingly requests the Government to indicate the provisions which prohibit, in sectors not covered by section 22 of resolution No. 284, any deduction from wages with a view to obtaining or retaining employment.

Article 10. Attachment and assignment of wages. The Committee notes that Ordinance No. 98-522 of 24 June 1998 updating and adapting labour law in the overseas territories, communities and departments introduced section 28(2) into Ordinance No. 85-1181, under the terms of which the amounts due in respect of remuneration may only be attached or assigned to the extent and within the remuneration thresholds determined by Congress resolution. The Committee requests the Government to indicate whether the Congress has adopted a resolution under this Ordinance determining the extent to which wages may be attached or assigned and, if so, to provide a copy.

Article 13. Place and date of the payment of wages. The Committee notes section 12 of resolution No. 302, which is in accordance with Article 13 of the Convention, but only applies to enterprises established outside New Caledonia which are engaged in the provision of services through salaried staff. The Committee hopes that the Government will adopt provisions in the near future that are general in scope in order to give effect to this provision of the Convention, based for example on those contained in resolution No. 302.

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee has been raising questions for a number of years concerning Ordinance No. 85-1181 of 13 November 1985 respecting labour law guidelines which gives only partial effect to the provisions of the Convention. The Committee notes that, according to the Government’s report, no progress has been made with regard to enacting supplementary legislation to ensure compliance with the requirements of Article 1 (definition of wages), Article 4 (partial payment of wages in kind), Article 5 (payment of wages directly to the worker), Article 6 (freedom of workers to dispose of their wages), Article 7 (works stores) and Article 13 (payment of wages on working days and at the workplace) of the Convention. The Committee expresses the firm hope that appropriate measures will be taken without further delay to give specific legislative expression to the standards set out in the above Articles of the Convention and asks the Government to transmit in due course copies of any relevant texts adopted to this end. In addition, the Committee would be grateful if the Government could provide in its next report, as required under Part V of the report form, general information on  the practical application of the Convention, including for instance extracts from official reports, statistics on the number of inspection visits carried out and the results obtained in regard to the matters dealt with in the Convention, any difficulties encountered in the implementation and enforcement of the Convention, etc.

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

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that the Government’s report does not reply to the questions that it has been raising for a number of years.

However, the Committee notes with interest the new sections 15-1 and 24-1 respecting fines and other financial penalties and deductions from wages incorporated into Ordinance No. 85-1181 of 13 November 1985 by Ordinance No. 96-609 of 5 July 1996 issuing various overseas provisions. It notes in this respect that, apart from the above provisions which give effect to Article 8 of the Convention, the legislation in force is still not in conformity with the requirements of the Convention with regard to the other points on which the Committee has commented on several occasions.

The Committee recalls its previous comments in which it requested the Government to indicate the measures adopted or envisaged to give effect to Articles 1 (definition of wages), 4 (partial payment of wages in kind), 5 (direct payment of wages to the worker), 6 (freedom of workers to dispose of their wages), 7 (works stores), 8 (deductions from wages) and 13 (payment of wages on working days and at the workplace) of the Convention. The Committee therefore once again requests the Government to adopt the necessary measures in laws or regulations to give full effect to Articles 1, 4, 5, 6, 7 and 13 of the Convention. It requests the Government to provide information in its next report on the progress achieved in this respect.

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

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that the Government’s report does not reply to the questions that it has been raising for a number of years.

However, the Committee notes with interest the new sections 15-1 and 24-1 respecting fines and other financial penalties and deductions from wages incorporated into Ordinance No. 85-1181 of 13 November 1985 by Ordinance No. 96-609 of 5 July 1996 issuing various overseas provisions. It notes in this respect that, apart from the above provisions which give effect to Article 8 of the Convention, the legislation in force is still not in conformity with the requirements of the Convention with regard to the other points on which the Committee has commented on several occasions.

The Committee recalls its previous comments in which it requested the Government to indicate the measures adopted or envisaged to give effect to Articles 1 (definition of wages), 4 (partial payment of wages in kind), 5 (direct payment of wages to the worker), 6 (freedom of workers to dispose of their wages), 7 (works stores), 8 (deductions from wages) and 13 (payment of wages on working days and at the workplace) of the Convention. The Committee therefore once again requests the Government to adopt the necessary measures in laws or regulations to give full effect to Articles 1, 4, 5, 6, 7 and 13 of the Convention. It requests the Government to provide information in its next report on the progress achieved in this respect.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report does not reply to the questions that it has been raising for a number of years.

However, the Committee notes with interest the new sections 15-1 and 24-1 respecting fines and other financial penalties and deductions from wages incorporated into Ordinance No. 85-1181 of 13 November 1985 by Ordinance No. 96-609 of 5 July 1996 issuing various overseas provisions. It notes in this respect that, apart from the above provisions which give effect to Article 8 of the Convention, the legislation in force is still not in conformity with the requirements of the Convention with regard to the other points on which the Committee has commented on several occasions.

The Committee recalls its previous comments in which it requested the Government to indicate the measures adopted or envisaged to give effect to Articles 1 (definition of wages), 4 (partial payment of wages in kind), 5 (direct payment of wages to the worker), 6 (freedom of workers to dispose of their wages), 7 (works stores), 8 (deductions from wages) and 13 (payment of wages on working days and at the workplace) of the Convention. The Committee therefore once again requests the Government to adopt the necessary measures in laws or regulations to give full effect to Articles 1, 4, 5, 6, 7 and 13 of the Convention. It requests the Government to provide information in its next report on the progress achieved in this respect.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report and the attached legislative texts.

In its previous comment, the Committee requested the Government to supply detailed information on the measures adopted or envisaged to give effect to the following Articles of the Convention: Article 1 of the Convention defining the term "wages"; Article 4 concerning the partial payment of wages in kind; Article 5 concerning the direct payment of wages to the worker; Article 6 concerning the prohibition placed upon the employer from limiting the freedom of the worker to dispose of his wages; Article 7 concerning the freedom of workers to make use or not to make use of works stores in enterprises without coercion, and fair and reasonable prices for goods sold and services provided; Article 8 concerning deductions from wages; and Article 13 concerning the payment of wages on working days and at the workplace.

The Committee notes the Government's statement that a preliminary draft text which is currently being prepared contains various provisions which supplement or amend those of Ordinance No. 85-1181 of 13 November 1985 respecting labour law guidelines.

With regard to the application of Article 6, the Government states that it is planned to supplement Ordinance No. 85-1181 with provisions concerning the right of married women to enjoy the products of their own work and the savings resulting therefrom. The Committee notes this proposal with interest. However, it recalls that Article 6 refers to the prohibition placed upon employers from limiting the freedom of the worker to dispose of his wages, which is not guaranteed by any provision which is in force on the territory.

With regard to Article 8, the Government refers to the proposal to add provisions to the Ordinance prohibiting fines or other financial sanctions. The Committee notes this proposal with interest. Nevertheless, it emphasizes that Article 8 provides that any deductions from wages, for whatever reason, have to be regulated by national laws or regulations.

The Committee once again requests the Government to indicate the measures which have been adopted or are envisaged to give effect to the above articles of the Convention.

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

With reference to its previous comments, the Committee notes the explanations supplied by the Government and the text of Decision No. 284 of 24 February 1988 amended by Decisions No. 94 of 19 April 1989 and No. 57/CP of 10 May 1989 issued under Ordinance No. 85-1181 of 13 November 1985 respecting labour law guide-lines.

The Committee notes that the measures to apply the above Ordinance, i.e. the above-mentioned Decisions, do not give full effect to the Convention. The Committee asks the Government to provide more detailed information on the measures adopted or envisaged to give effect to the following Articles of the Convention.

Article 1 of the Convention defining the term "wages".

Article 4 concerning the partial payment of wages in kind.

Article 5 concerning direct payment of wages to the worker.

Article 6 concerning the prohibition against limiting the freedom of the worker to dispose of his wages.

Article 7 concerning freedom of the worker to make use or not to make use of works stores in undertakings without coercion, and fair reasonable prices for goods sold and services provided.

Article 8 concerning deductions from wages.

Article 13 concerning the payment of wages on working days and at the workplace.

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

The Committee notes Ordinance No. 85-1181 of 13 November 1985 which repeals Ordinance No. 82-1114 of 23 December 1982 respecting the legislative regulations covering labour law in the Territory of New Caledonia and its dependancies. The Committee takes note of chapter VI of Title 1 of this Ordinance establishing guide-lines with regard to wages. It also notes, from the Government's report, that measures to apply the above Ordinance will be taken by decision of the Congress of the Territory and that draft legislation is currently being prepared in this respect. In view of the fact that the Convention was essentially applied by the Labour Code (Overseas Territories) of 15 December 1952, with a number of amendments, including those resulting from Ordinance No. 82-1114 of 23 December 1982, the Committee would be grateful if the Government would indicate whether the Convention remains in effect in the interim through the Labour Code (Overseas Territories). It also requests the Government to report the steps taken with a view to giving effect to the Convention in accordance with the above new Ordinance.