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

New Caledonia

Weekly Rest (Industry) Convention, 1921 (No. 14) (Ratification: 1947)
Holidays with Pay Convention, 1936 (No. 52) (Ratification: 1974)
Holidays with Pay (Agriculture) Convention, 1952 (No. 101) (Ratification: 1974)
Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) (Ratification: 1974)

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.