Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Nueva Caledonia

Convenio sobre el examen médico de los menores (industria), 1946 (núm. 77) (Ratificación : 1974)
Convenio sobre el examen médico de los menores (trabajos no industriales), 1946 (núm. 78) (Ratificación : 1974)

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.