Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Nouvelle-Calédonie

Convention (n° 81) sur l'inspection du travail, 1947 (Ratification: 2000)
Convention (n° 129) sur l'inspection du travail (agriculture), 1969 (Ratification: 1986)

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection) and 129 (labour inspection in agriculture) together.

The Committee notes the observations of the General Confederation of Labour-Force ouvrière (CGT-FO), communicated with the Government’s report.

Article 5(a) of Convention No. 81 and Article 12(1) of Convention No. 129. Cooperation between labour inspection services and other services or institutions exercising similar functions. The Committee notes that the CGT-FO reports that, with regard to seafarers, labour inspection is governed by the New Caledonian Maritime Affairs Service (SAMNC), a department under the Ministry of Sustainable Ecology, Development and Planning, and by the Government of New Caledonia. The Committee requests the Government to indicate how cooperation between the labour inspection services, under Pôle Travail of the Department for Labour and Employment (DTE), and the SAMNC, under the Ministry of Sustainable Ecology, Development and Planning, is ensured under the application of Article 5(a) of Convention No. 81 and of Article 12(1) of Convention No.129.

Effective cooperation between the inspection services and judicial bodies. The Committee notes, according to the Government’s information, that the National Anti-fraud Operational Committee (COTAF), responsible for defining the priority actions and procedures to be put in place to improve coordination in the fight against fraud relating to public finances, and against illegal labour was established through Order No. 205/2019 of 7 November 2019; that this Committee groups together State services (police, gendarmerie, tax administration, labour inspection, and so forth) and the New Caledonian Family Allowances and Occupational Accidents Fund (CAFAT); and that COTAF is an effective tool for labour-related matters and cooperation among these various services, particularly through the service of the Procurator’s Office. The Committee also notes that, since its establishment until the end of 2021, COTAF had led 14 inter-agency operations in the field, comprising inspections involving 1,305 persons and 443 workplaces; that 300 violations had been found; that the various regularizations, fines and penalties had collected almost 50 million CFP Francs; and that the inspections conducted by COTAF continued in 2022. The Committee notes, however, that in 2019 the number of reports resulting in legal and administrative proceedings fell significantly. The Committee also notes that the Government has not provided information on the actions taken with a view to effective cooperation between the inspection services and judicial bodies, nor on the results achieved in relation to the procedures initiated by the inspection services. The Committee requests the Government to provide detailed information on the actual state of the mechanisms of cooperation between the inspection services and judicial bodies, including data on the cases submitted to the courts by the inspectors, and their outcome.

Articles 10 and 16 of Convention No. 81 and Articles 14 and 21 of Convention No. 129. Effective discharge of the duties of the inspectorate and inspections as often and as thorough as necessary. The Committee notes that, in its comments, the CGT-FO points to the difficulties in the recruitment of two new labour inspectors in 2019 and that it also expresses concern at the 31.09 per cent drop in enterprise inspections recorded between 2018 and 2019, considering that this could jeopardize the effective discharge of the duties of the labour inspection service. The Committee notes that, in the section on labour inspection, the DTE’s assessment for 2019 reveals several factors that account for the decrease: during the current year, the inspection units focused their efforts on inquiries into the dismissal of protected employees, namely into medical unfitness, and the priority handling of cases involving collective redundancies for economic reasons. The implementation of the new distribution of the inspection units’ intervention areas and training needs are other reasons that explain the decrease in the number of inspections. The Committee requests the Government to continue to provide statistics on inspections and, in this regard, it requests it to refer to the comment it makes under the application of Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Concerning the difficulties in the recruitment of labour inspectors noted by the CGT-FO, the Committee requests the Government to transmit its comments on this matter.

In addition, the Committee notes that a form for enterprises to enter their data has been created in the GEOREP geographic information portal, and that the labour inspectorate plans to set up an application similar to JIRA, which should allow for better knowledge sharing of documents from the moment they are created until they are signed. The Committee requests the Government to continue to provide information on the new means that ensure the effective discharge of the duties of the inspectorate.

Article 18 of Convention No. 81 and Article 24 of Convention No. 129. Adequate penalties. The Committee notes that, according to the Government’s information, the criminal report remains the main tool used by labour inspectors and controllers to record violations of the provisions of the Labour Code, but that criminal penalties are neither effective nor appropriate in cases of non-compliance with labour legislation. The Government indicates that, to improve the effectiveness of the labour law and the efficiency of the inspections, a reform is envisaged aimed at strengthening the powers of the labour inspectorate to facilitate the use of administrative penalties. The Government considers that this tool would have, through its simplicity and speed, a more substantial dissuasive and preventive effect. The Committee requests the Government to continue to provide information on any progress made towards the adoption of the reform to facilitate the use of administrative penalties in cases of violations found by labour inspectors and controllers and, where possible, on the nature, number and effectiveness of the administrative penalties imposed.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual report on the work of the labour inspection services. In its previous comment, the Committee noted that an electronic register of enterprises and workplaces was being developed and that no annual report had been received since 2009. The Committee notes that under section 6 of Order No. 2013-3295/GNC of 19 November 2013, establishing the powers and organization of the DTE, each labour inspection unit is in charge of entering content and updating the database to ensure the monitoring of the enterprises under its responsibility. The Committee notes that the Government has produced the 2019 assessment of Pôle Travail under the DTE, which groups together the labour inspection services and the occupational risk prevention service; and that this assessment identifies that applicable provisions and contains statistics on the number of inspections and interventions in enterprises, construction site inspections, warnings, work stoppages, criminal and administrative proceedings brought, and so forth. The Committee also notes that no assessment could be carried out in 2021 due to the health crisis and the resulting periods of lockdown. The Committee notes that the Government produced statistics on occupational accidents, commuting accidents and occupational diseases which were compiled by CAFAT for 2021. The Committee notes, however, that the DTE, in its capacity as a central body, has not published any general annual report. With reference to its general observation of 2010 on Convention No. 81, the Committee recalls that, when well prepared, the annual report offers an indispensable basis for the evaluation of the results in practice of the activities of the labour inspection services and, subsequently, the determination of the means necessary to improve their effectiveness. Noting that many statistics are available, the Committee once again requests the Government to take the necessary measures to ensure that: (1) an annual report on the work of the labour inspection service is established by the DTE; (2) this report contains all the matters enumerated in Article 21(a)–(g) of Convention No. 81 and Article 27(a)–(g) of Convention No. 129; and (3) this report is published and transmitted to the Office within the timelines set out in Article 20 of Convention No. 81 and Article 26 of Convention No. 129.

Matters specifically relating to labour inspection in agriculture

Articles 18 and 22 of Convention No. 129. Activities of the labour inspectorate in the area of occupational safety and health (OSH). The Committee notes that the number of occupational accidents resulting in absence from work in agriculture and livestock is decreasing (145 in 2019, 142 in 2020 and 107 in 2021) but that it alone represents over half of the occupational accidents with absence from work in the wider sector of agriculture and fishing. In this regard, the Committee requests the Government to provide, in its next report, information on the number of violations of OSH provisions found by labour inspectors. The Committee also requests the Government to communicate information on the preventive measures taken by labour inspectors relating to OSH in the agriculture sector, including measures to reduce to a minimum the risks of occupational accidents, specifying those with immediate executory force, as well as the penalties imposed for the violations found.