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Invalidity Insurance (Industry, etc.) Convention, 1933 (No. 37) - French Polynesia

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Previous comments: C.37 observation; C.38 observation; C.42 observation; and C.44 observation.

In order to provide a comprehensive overview of the issues relating to the application of the ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 37 (invalidity insurance, industry), 38 (invalidity insurance, agriculture), 42 (occupational diseases) and 44 (unemployment provision) together in a single comment.

Article 9(1)(a) of Conventions Nos 37 and 38. Disqualification from entitlement to benefits. For many years, the Committee has been indicating to the Government that section 34(1) of Resolution No. 74-22 of 14 February 1974, which provides for the possibility of the disqualification of an insured person from entitlement to benefits in the event that the invalidity is the result of inexcusable misconduct, exceeds the cases of disqualification set out in Article 9(1)(a) of the Conventions. Article 9(1)(a) of the Conventions provides that the right to benefits may only be forfeited or suspended in whole or in part if the person concerned has brought about the invalidity by a criminal offence or wilful misconduct.

In its report, the Government indicates that the Social Welfare Fund has been informed of the Committee’s comments. The Committee notes with concern that section 34(1) of Resolution No. 74-22 of 14 February 1974 has not been amended. The Committee therefore urges the Government to take all the necessary measures without delay to amend section 34(1) of Resolution No. 74-22 of 14 February 1974 in order to bring it into conformity with Article 9(1)(a) of the Conventions.

Article 2 of Convention No. 42. Diseases considered to be occupational diseases. For many years, the Committee has been drawing the Government’s attention to the need to update the schedules of occupational diseases established by Decree No. 925 CM of 8 July 2011 to ensure full compliance with Article 2 of the Convention. The Committee notes the Government’s indication that the procedure for the revision of the schedules is under consideration. In this regard, the Committee recalls that, in order to ensure full compliance with Article 2 of the Convention, the Government needs to adopt measures to: (a) ensure that the diseases and types of poisoning listed in the schedule in Article 2 of the Convention are not limited by the symptoms and pathological manifestations appearing in the left-hand column of the schedules contained in Decree No. 925 CM of 8 July 2011; (b) consider as occupational diseases those resulting from poisoning by all the halogen derivatives of hydrocarbons of the aliphatic series (Schedule No. 12); and (c) include among the types of work likely to cause primary epitheliomatous cancer of the skin any processes involving the handling or use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances (Schedules Nos 16bis and 36bis).

The Committee notes with concern that the amendment of the schedules of occupational diseases contained in Decree No. 925 of 8 July 2011 is a longstanding issue. The Committee urges the Government to take all the necessary measures without delay to ensure that the national legislation is in full conformity with Article 2 of the Convention.

Article 1(1) of Convention No. 44. Establishment and implementation of a system of unemployment protection. For many years, the Committee has been drawing the Government’s attention to the need to establish a system of protection against involuntary unemployment with a view to giving effect to Article 1(1) of the Convention. In this regard, the Committee notes that, under the terms of clause 4 of the agreement to bring an end to the dispute concluded by the unions and the President of French Polynesia on 29 November 2021, the Government undertook to establish on 1 January 2023 an assistance fund for employed persons who have involuntarily lost their employment. The Committee expresses the firm hope that the Government will continue to adopt the necessary measures to establish and maintain an unemployment protection scheme which provides persons who are involuntarily unemployed with a benefit or an allowance, or a combination of a benefit and an allowance, as envisaged in Article 1(1) of the Convention. The Committee requests the Government to provide information on the progress made in the establishment of the assistance fund for workers who have involuntarily lost their employment.

The Committee has been informed that, on the basis of the recommendations of the Tripartite Working Group of the Standards Review Mechanism (the SRM Tripartite Working Group), the Governing Body has decided that Member States that are currently bound by Conventions Nos 37 and 38 should be encouraged to ratify the most recent instruments, namely the Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128), and accept the obligations of Part II, or the Social Security (Minimum Standards) Convention, 1952 (No. 102), accepting Part IX (see GB.328/LILS/2/1). Moreover, Member States currently bound by Convention No. 42 should be encouraged to ratify the Employment Injury Benefits Convention [Schedule I amended in 1980], 1964 (No. 121), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part VI. Finally, Member States which are currently bound by Convention No. 44 should be encouraged to ratify the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), or the Social Security (Minimum Standards) Convention, 1952 (No. 102), and accept the obligations in its Part IV. The Committee therefore encourages the Government to give effect to the decision adopted by the Governing Body at its 328th Session (October–November 2016) approving the recommendations of the SRM Tripartite Working Group and to consider the ratification of Conventions Nos 102 (Parts IV, VI and IX) or 121, 128 (Part II) and 168, which are the most up-to-date instruments in this field.

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

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Article 9(1)(a) of the Convention. Disqualification from entitlement to benefits. The Committee recalls that for many years it has been indicating to the Government that section 34(1) of Resolution No. 74-22 of 14 February 1974, as amended by section 1 of Resolution No. 83-47 of 28 March 1983, which provides for the possibility of disqualification of an insured person from such entitlement to benefits in the case of inexcusable misconduct, exceeds the cases for disqualification set out in Article 9(1)(a) of the Convention.

In this regard, the Committee notes that Chapter 1 of territorial Act No. 2011 18 of 11 July 2011, entitled “Invalidity and Sickness Insurance”, amends several sections of Resolution No. 74-22 of 14 February 1974, but not section 34(1) on which the Committee has been commenting since 1981. The Committee also notes the Government’s reiterated indication in its report that the possibility of disqualifying an insured person in the case of inexcusable misconduct will be removed during a future amendment of these texts. The Committee notes with regret that, notwithstanding the commitments made, as set out in its 2007 report, the Government did not use the occasion of the adoption of territorial Act No. 2011-18 of 11 July to make the amendment that has been requested for over 30 years. Under these conditions, the Committee is bound to remind the Government that by ratifying the Convention it undertook to give effect to its provisions in good faith. The Committee therefore hopes that the Government will take the necessary measures without further delay to adopt the amendments referred to above.

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Article 9, paragraph 1(a), of the Convention. Referring to the comments which it has made for a number of years, the Committee notes that in its last report the Government undertakes, the next time it amends resolution No. 74-22 of 14 February 1974, to make the modifications needed to give full effect to the Convention by removing the possibility of disqualifying an insured person from entitlement to cash benefits in the case of inexcusable misconduct. This notion is likely to give rise to disqualification in many more instances than the few limited cases listed by this provision of the Convention, i.e. cases of criminal offence or wilful misconduct. The Committee would be grateful if the Government would keep it informed of all progress made in this area and, if applicable, to send a copy of the abovementioned resolution, as amended, with its next report.

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Article 9, paragraph 1(a), of the Convention. In its previous comments, the Committee drew the attention of the Government to the fact that the notion of inexcusable misconduct provided for under section 34, subsection 1 of resolution No. 74-22 of 14 February 1974, as modified by section 1 of resolution No. 83-47 of 28 March 1983, is a case of disqualification from entitlement to benefits broader than that provided for by the Convention. It therefore expresses the hope that, when the legislation is next revised, the Government will adopt the necessary measures to delete this case of disqualification from resolution No. 74-22 cited above. In the meantime, the Committee requests the Government to supply information on the application in practice of section 34, subsection 1, of the abovementioned resolution, when the case arises.

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Article 9, paragraph 1(a), of the Convention. The Committee takes note of the information provided by the Government in its report. With respect to section 1 of resolution No. 83-47 of 28 March 1983, the Committee noted the statement of the Director of the Social Provident Fund of 3 September 1992 that inexcusable or wilful misconduct of the insured person may indeed result in disqualification from entitlement to benefits, but that, in practice, no situation of this type has yet occurred. In this regard, the Committee can only recall that the notion of inexcusable misconduct permits a case of disqualification from entitlement to benefits broader than that provided for in the Convention. Consequently, the Committee expresses the hope that, when the legislation is next revised, the Government will adopt the necessary measures to delete this case of disqualification. The Committee requests the Government to indicate in its next report the progress made in this respect. In the meantime, it would be grateful if the Government would keep it informed of the manner in which the above-mentioned section is applied in practice, when the case arises.

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Article 9, paragraph 1(a), of the Convention. The Committee takes note of the information supplied by the Government in its report. It notes in particular the text of Resolution No. 83-47 of 28 March 1983, section 1 of which enabled the Social Provident Fund to provide benefits in cases of physical injury caused by the practice of a sport. However, it notes that the notion of inexcusable misconduct as one of the grounds for disqualification from entitlement to benefits has not been deleted from the above-mentioned provision, but that the notion of wilful misconduct has been introduced. In this connection, the Committee can only recall that the notion of inexcusable misconduct is broader than the notion contained in this provision of the Convention. Consequently, the Committee would be grateful if the Government would provide information on the practical effect given to section 1 of Resolution No. 83-47, and hopes that when the legislation is next revised the Government will adopt the necessary measures to delete the notion of inexcusable misconduct, in accordance with this provision of the Convention.