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Labour Inspection (Agriculture) Convention, 1969 (No. 129) - New Caledonia

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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.

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Articles 3(1)(a) and (b), and 13 of Convention No. 81, and Articles 6(1)(a) and (b), and 18 of Convention No. 129. Labour inspection activities in the area of occupational safety and health. The Committee notes the information provided by the Government in its report in reply to its previous comments concerning: (i) the role of labour inspection in relation to the obligation of employers to carry out an occupational risk evaluation (EVRP), through supervision of the updating or initiation of the EVRP by enterprises, as appropriate; (ii) preventive measures taken by the labour inspection services with a view to remedying defects observed in plant, layout or working methods; (iii) statistics of industrial accidents and cases of occupational disease, showing a reduction between 2007 and 2013; and (iv) the adoption of new legislative texts on health and safety on construction sites. The Committee notes this information.

Article 3 of Convention No. 81 and Article 6 of Convention No. 129. Labour inspection activities in the area of irregular employment. The Committee notes the indications provided by the Government in reply to its previous comment relating to the monitoring of foreign workers in an irregular situation in the agricultural sector, according to which New Caledonia is not affected by undeclared work in this sector. The Government adds that the labour inspection services do not have competence in the area of immigration, that in the context of the supervision of conditions of work the inspection services promotes the regularization of workers in an irregular situation and that no disputes relating to work by foreign workers have been brought to the knowledge of the labour inspection services. The Committee notes this information.

Articles 5(a), and 17 of Convention No. 81 and Articles 12(1), and 22 of Convention No. 129. Effective cooperation between the inspection services and judicial bodies. The Committee notes the information provided by the Government in reply to its previous request on the number of infringements recorded in 2014, the legal provisions concerned and the number of cases referred for prosecution or administrative action. It also notes the efforts made to improve cooperation between the inspection services and judicial bodies, including the organization of a meeting to draw up an assessment of the legal procedures initiated by the inspection services and their outcome in the courts. It further notes the difficulties encountered by the inspection services in obtaining information on the action taken on reports of infringements due, among other reasons, to the congestion of the judicial bodies. The Committee encourages the Government to continue making efforts to achieve effective cooperation between the inspection services and judicial bodies. It requests the Government to continue providing information on the action taken in this respect, and the results achieved in relation to the procedures initiated by the inspection services.

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The Committee refers to its comments relating to the Labour Inspection Convention, 1947 (No. 81), in so far as they are also concerned with the application of the present Convention.

Articles 6, 12, 14 and 21 of the Convention. Activities of the labour inspectorate in agriculture and additional duties assigned to inspectors. The Committee notes the Government’s reference to three information sessions on occupational risks in agriculture organized in 2012 by the Directorate of Labour and Employment in collaboration with the Family Benefit and Employment Injury Compensation Fund and Workers’ Provident Fund (CAFAT), the Chamber of Trades and Crafts, the Chamber of Agriculture and the Directorate of Veterinary Matters, Food and Rural Affairs. It further notes the Government’s indication that a specialist controller for agriculture was appointed in 2010 to perform inspections in agricultural undertakings. It notes that the controller’s duties focus on action against illegal work, especially with regard to pre-recruitment declaration, and on occupational risk prevention, particularly the inspection of plant protection products. It further notes the statement in the November 2009 document entitled “Instructions regarding the monitoring policy of the labour inspectorate”, supplied with the Government’s report on the application of the Labour Inspection Convention, 1947 (No. 81), to the effect that from 2009 inspections in the area of clandestine work and the employment of foreign nationals having irregular status would be stepped up, that they would be largely conducted by the controller specifically assigned to this task and that collective actions could be organized periodically with the inspection units.

With reference to its 2006 General Survey on labour inspection (paragraphs 75–78), the Committee recalls that Convention No. 129, like Convention No. 81, does not contain any provision suggesting that any workers be excluded from the protection afforded by labour inspection on account of their irregular employment status. The primary duty of labour inspectors is to enforce the legal provisions relating to conditions of work and the protection of workers, and not to enforce immigration law. Verification of the legality of employment should have, as its corollary, the reinstatement of the statutory rights of all workers if it is to be compatible with the labour inspection objective of providing protection. Moreover, since the human and other resources available to labour inspectorates are not unlimited, assigning the task of policing illegal employment as a primary duty for labour inspectors would appear to result in a proportionate decrease in inspection of conditions of work.

The Committee requests the Government to indicate the measures taken or contemplated to ensure that labour inspection activities aimed at enforcing immigration law are not detrimental to the labour inspectorate’s primary duties of enforcing the legal provisions relating to conditions of work and the protection of workers.

In this regard, the Committee requests the Government to provide information on the amount of time allocated to verifying the legality of employment in proportion to the primary inspection duties laid down in Article 6(1) of the Convention, on reported infringements, legal procedures and remedies, and penalties imposed for undeclared work. It also requests the Government to describe the role played by the labour inspectorate and the justice system in ensuring observance by employers of their obligations towards foreign nationals found to be illegally employed, such as the payment of wages and any other benefits due for work done in the context of their employment relationship, including where workers are under the threat of expulsion from the country or have already been expelled.

Articles 26 and 27. Annual report on the work of the labour inspectorate in agriculture. The Committee notes that the last labour inspection report received by the Office relates to the 2007–08 period. It notes the Government’s indication that the annual report of the labour inspectorate for 2010 (which has not been received by the Office) covers all sectors of activity, including agriculture, but does not refer specifically to the work of the labour inspectorate in agriculture. The Committee notes from the record of the meeting of the Labour Advisory Commission dated 26 August 2010, which was sent by the Government, that the tools used do not enable a breakdown of statistics by sector of activity. Moreover, as the Committee understands it, it is difficult to determine the number of workers employed in agriculture since there are few wage employees in the sector and they are mainly employed on part-time contracts.

However, it notes that there appear to be moves to establish an electronic register of enterprises by sector of activity as the basis for a database for all services. With reference to its previous comments, the Committee recalls that under Article 26 of the Convention the central inspection authority must publish an annual report on the work of the inspection services in agriculture, either as a separate report or as part of its general annual report. With reference also to its comments on Convention No. 81, the Committee requests the Government to supply information on progress made regarding the establishment of an electronic register of enterprises by sector of activity, including agriculture.

The Committee also requests the Government once again to take the necessary steps to publish the annual inspection report and send it to the Office, in accordance with Article 26 of the Convention, and to ensure that specific information on the work of the inspection services in agriculture is identifiable in this report, as required by Article 27(a)–(g) of the Convention.

The Committee requests the Government in any case to send as detailed information as possible in its next report on the number of agricultural undertakings liable to inspection and the number of persons working in them, the number of inspection visits and the results thereof (number of infringements reported, legal or regulatory provisions concerned, penalties imposed, etc.), and also on occupational accidents and diseases recorded and the causes thereof.

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

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The Committee observes that in reply to its previous comments, which concerned, firstly, the work of the labour inspectorate with regard to the prevention of occupational risks in agricultural undertakings and, secondly, the communication and publication of statistical information on the agricultural sector, the Government refers to the information supplied in the report on the application of Convention No. 81. It explains that there are no legislative or regulatory provisions specific to labour inspection in agriculture. However, the Committee notes that the abovementioned report does not contain any information or statistics on labour inspection in agriculture. It reminds the Government that under the provisions of the present Convention it is required to insure that separate information concerning specifically the activities of the labour inspection service in agriculture are provided, either in the form of a separate report or as part of its annual report. The Committee therefore requests the Government once again to supply information on the prevention and monitoring activities undertaken by the labour inspectorate in agricultural undertakings and to send to the Office, in conformity with Article 26 of the Convention, the annual activity report drawn up under section R.711-1 of the Labour Code of New Caledonia containing the information and statistics required by Article 27 of the Convention.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee observes that in reply to its previous comments, which concerned, firstly, the work of the labour inspectorate with regard to the prevention of occupational risks in agricultural undertakings and, secondly, the communication and publication of statistical information on the agricultural sector, the Government refers to the information supplied in the report on the application of Convention No. 81. It explains that there are no legislative or regulatory provisions specific to labour inspection in agriculture. However, the Committee notes that the abovementioned report does not contain any information or statistics on labour inspection in agriculture. It reminds the Government that under the provisions of the present Convention it is required to insure that separate information concerning specifically the activities of the labour inspection service in agriculture are provided, either in the form of a separate report or as part of its annual report. The Committee therefore requests the Government once again to supply information on the prevention and monitoring activities undertaken by the labour inspectorate in agricultural undertakings and to send to the Office, in conformity with Article 26 of the Convention, the annual activity report drawn up under section R.711-1 of the Labour Code of New Caledonia containing the information and statistics required by Article 27 of the Convention.

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1. Articles 26 and 27 of the Convention. Impact of increasing labour inspection resources on its activities in agricultural undertakings. Further to its direct request on the application of Convention No. 81, in which it notes with interest the reorganization of the Directorate of Labour and Employment (Order No. 2005-2591 of 13 October 2005) and the reinforcement of the staff and of the material means available to the inspection service, the Committee trusts that prevention and monitoring activities will be stepped up in the agricultural sector so that as a result of these changes, it will finally be possible to publish and communicate to the Office relevant and specific information, either as a separate report or as part of a general activity report (Article 26). This information should focus in particular on the number of agricultural undertakings liable to inspection and of persons working therein, statistics on inspections in agricultural undertakings, statistics on violations and penalties imposed and statistics on occupational accidents and diseases and their causes (Article 27).

2. Article 17. Prevention of occupational risks. The Committee notes that the Occupational Safety and Health Plan for 2006–08 on the prevention of occupational risks does not contain any specific provisions for agricultural undertakings. Noting the Government’s statement to the effect that in 2005 there were 1,700 employees in the agricultural sector, the Committee asks it to indicate the preventive measures taken or envisaged to reduce the occupational hazards linked to the handling or use of chemical products and plant and machinery to which workers are exposed.

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1. Organization and operation of the labour inspection system in the agricultural sector. The Committee notes the Government’s brief report and the annual inspection report for 2002. It notes from the replies to its previous comments that the duties of the labour inspectorate in agricultural enterprises are performed by inspectors who are responsible for other sectors of activity as well. The Committee notes that the statistical data on inspection activities carried out by the two regional sections are too general in nature to be of any real use in evaluating how effective labour inspection is in the agricultural sector. For example, the number of inspection visits indicated for 2002 can be of use only if it is supplemented by data on the number and size of the agricultural enterprises subject to inspection, the number of workers covered or the results of inspections and their impact on compliance with the relevant legislation. Furthermore, the inspections mentioned appear to have been carried out solely for preventive purposes or in order to issue licences to master farmers. The Committee would remind the Government that the transfer of authority for labour inspection to New Caledonia implies amongst other things a transfer of the obligation to report, pursuant to article 22 of the ILO Constitution, on the measures taken to apply this Convention and Convention No. 81. In its previous comments the Committee accordingly requested the Government to report on any developments in the establishment or operation of the labour inspection system for the agricultural sector and to provide, in particular, information on the manner in which effect is given to the provisions of the Convention in answer to the questions set out in the relevant report form.

The Government is also requested to ensure that the central inspection authority discharged its obligation to publish and send to the Office an annual report containing up-to-date and separate information for each of the items set forth in Article 27(a) to (g) of this Convention.

Noting with interest that the inspectorate has been reinforced by the recruitment of two inspectors, the Committee hopes that it will be possible for the information to be sent in the requisite form.

2. Child labour and labour inspection. The Committee notes that, according to the Government, there have been no reports of any employment of children 14 and 15 years of age in agriculture, and points out to the Government that there may be hidden forms of child labour, particularly in agricultural enterprises. It requests the Government to ensure that labour inspectors have efficient means of checking, inter alia, the reliability of the data supplied by the employers, namely means of transport that enable them to inspect agricultural undertakings without warning and as often and as thoroughly as is necessary, as required by the Convention (Article 21). Specific data on investigations concerning child labour might also be included in a specific section of the annual report as a source of useful information for the implementation of a policy to combat child labour.

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The Committee would be grateful if the Government would indicate any development concerning the establishment and operation of the labour inspection system in agriculture and provide the information required by the report form under the provisions of the Convention.

With reference also to its general observation of 1999 concerning the role of labour inspection in combating the abuse of child labour, the Committee notes with interest that, under the terms of section 5 of Deliberation No. 266-CP of 17 April 1998, issuing various social provisions, the authorization of the labour inspector is required for the engagement of young workers aged between 14 and 16 years; the inspector has the authority, within a specified time limit, to oppose or to propose changes to the terms and conditions of employment, or at any moment to withdraw his authorization where it is established that the conditions are no longer in conformity with those required by the authorization. The Committee hopes that the Government will be able to ensure that an annual report on the activities of the inspection services in the agricultural sector is published and transmitted to the ILO in accordance with Article 26 of the Convention and that it will contain detailed information on the matters set out in Article 27, including inspection activities relating to child labour.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following points raised in its previous direct request:

The Committee notes the Government’s report and the attached documents. It notes in particular the information concerning the institutional changes in the status of the territory, particularly with regard to the obligations deriving from the ratification of the Convention, and the relevant texts. The Committee would be grateful if the Government would indicate any development concerning the establishment and operation of the labour inspection system in agriculture and provide the information required by the report form under the provisions of the Convention.

With reference also to its general observation of 1999 concerning the role of labour inspection in combating the abuse of child labour, the Committee notes with interest that, under the terms of section 5 of Deliberation No. 266-CP of 17 April 1998, issuing various social provisions, the authorization of the labour inspector is required for the engagement of young workers aged between 14 and 16 years; the inspector has the authority, within a specified time limit, to oppose or to propose changes to the terms and conditions of employment, or at any moment to withdraw his authorization where it is established that the conditions are no longer in conformity with those required by the authorization. The Committee hopes that the Government will be able to ensure that an annual report on the activities of the inspection services in the agricultural sector is published and transmitted to the ILO in accordance with Article 26 of the Convention and that it will contain detailed information on the matters set out in Article 27, including inspection activities relating to child labour.

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The Committee notes the Government’s report and the attached documents. It notes in particular the information concerning the institutional changes in the status of the territory, particularly with regard to the obligations deriving from the ratification of the Convention, and the relevant texts. The Committee would be grateful if the Government would indicate any development concerning the establishment and operation of the labour inspection system in agriculture and provide the information required by the report form under the provisions of the Convention.

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The Committee notes that, for a number of years, the ILO has not been given any information on the manner in which labour inspection is carried out in the agricultural sector. Successive references to previous reports under this Convention or Convention No. 81 are of no relevance in this respect. The confusion of legal instruments and the human and material resources intended for labour inspection in the industrial, commercial and agricultural sectors should not be an obstacle to the fulfilment of obligations arising from ratification of each of the relevant Conventions.

The Committee recalls in this regard that reports on the application of a Convention communicated to the ILO under articles 35 and 22 of the ILO Constitution must contain: information on legislative provisions or measures and any other measures which affect the application of the Convention in question; replies to questions in the report form on the practical application of the Convention; and replies to any comments by the Committee concerning the application of the Convention. The Government is requested to provide such information in its next report, including information on the manner in which effect is given to Article 6, paragraph 3, and Articles 14 and 21 of the Convention.

The Committee notes that the ILO has not received any annual report on the activities of labour inspection in agriculture. The Committee recalls that the declaration of application of an international labour Convention to a non-metropolitan territory shall be applied implies a commitment to fulfil the obligations laid down in that Convention. The Committee therefore requests the Government to take the necessary measures without delay to apply the provisions of this Convention, both in law and in practice, and to provide information on specific measures taken to that end in its next report. The Committee furthermore trusts that annual inspection reports will be published and transmitted to the ILO in the near future, in accordance with Article 26 of the Convention, and that they will contain the information requested on all the subjects listed in Article 27.

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1. Article 6, paragraph 3, and Articles 14 and 21 of the Convention. This question is dealt with under Article 3, paragraph (3), and Articles 10 and 16 of Convention No. 81, as follows:

Article 3, paragraph 2, and Articles 10 and 16 of the Convention. The Committee notes the Government's report does not provide information on the manner in which the Convention is applied. The Committee recalls that the number of inspectors should be sufficient for the effective discharge of their duties so that workplaces are inspected as often and as thoroughly as is necessary (Articles 10 and 16). Please provide full particulars in this regard and include information on any additional duties entrusted to inspectors and whether such further duties interfere in any way with the effective discharge of their primary duties (Article 3, paragraph 2).

2. Articles 26 and 27. This question is dealt with under Articles 20 and 21 of Convention No. 81, as follows:

Articles 20 and 21. The Committee notes that since 1979 no labour inspection report for New Caledonia has been received. The Committee wishes to underline the importance it attaches to the preparation of these reports containing information on all the subjects enumerated in Article 21 and to their publication and communication within the time-limits set by Article 20 of the Convention, to enable it to determine whether the Convention is fully applied by the Government. Please provide full details.