CMNT_TITLE

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

Other comments on C095

Observation

2007

Direct Request

Replies received to the issues raised in a direct request which do not give rise to further comments

2019

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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.