Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - New Caledonia

Article 1 of the Convention. Prohibited grounds of discrimination. Legislation. The Committee refers to its previous comments regarding section Lp. 112-1 of the Labour Code of New Caledonia and notes that there have been no changes in this regard. Under the terms of section Lp. 112-1, “in respect of an offer of employment, recruitment or in the labour relationship, account shall not be taken of origin, sex, pregnancy, family situation, actual or presumed membership or non-membership of an ethnic group, nation or race, political opinion, trade union activities, disability or religious convictions”. The Committee understands that the term “origin”, in the context of New Caledonia, is intended to cover the term “national extraction” within the meaning of the Convention, that is to say, place of birth or foreign origin. With regard to the scope of the provisions that prohibit discrimination, the Committee notes that they apply to “an offer of employment, recruitment or in the labour relationship”. The Committee recalls that, when legal provisions are adopted to give effect to the principle of the Convention, they should include, as a minimum, all the grounds of discrimination set out in Article 1(1)(a) of the Convention. The Committee requests the Government to take the necessary measures to include colour and social origin in the list of prohibited grounds of discrimination and to confirm that the prohibition of discrimination is applicable to all stages of employment. In the absence of legislation to this effect, the Committee also requests the Government to indicate the manner in which workers are protected in practice against discrimination on the basis of colour or social origin and the remedies that are available to them.

Sexual and moral harassment. Private and public sectors. The Committee notes with satisfaction the adoption of Territorial Act No. 2014-4 of 12 February 2014 containing various provisions relating to the right to work which supplement in the Labour Code of New Caledonia the provisions protecting against sexual harassment, including hostile work environment sexual harassment (section Lp. 115-1). The Committee also notes that the criminal penalties for acts of sexual harassment have been increased (section Lp. 116-3). With regard to the public sector, the Committee notes with interest the adoption of Territorial Act No. 2014-9 of 18 February 2014 on employment relations and the prohibition of sexual and moral harassment in the public sector, which covers moral harassment and the two main forms of sexual harassment (quid pro quo and hostile work environment) and establishes a system for the protection of victims and witnesses. The Act also sets out penalties (prison sentences and fines) for perpetrators of harassment and imposes a duty of prevention on employers. The Committee requests the Government to provide information on the measures taken or envisaged to inform workers, and particularly public sector employees, of the new provisions that are applicable to sexual and moral harassment, and to make employers and workers’ and employers’ organizations aware of these issues. It also requests the Government to provide information on the application in practice of Territorial Acts Nos 2014-4 and 2014-9, and particularly the role of the labour inspection services with regard to sexual and moral harassment, and any legal proceedings initiated on the basis of these provisions, and their outcome.

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