REPRESENTATION (article 24) - FRANCE - C081, C082 - 1996

World Federation of Trade Unions

Closed

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Report of the Committee set up to examine the representation alleging non-observance by France of the Labour Inspection Convention, 1947 (No. 81), and the Social Policy (Non-Metropolitain Territories) Convention, 1947 (No. 82), made under article 24 of the ILO Constitution by the World Federation of Trade Unions (WFTU).

Report of the Committee set up to examine the representation alleging non-observance by France of the Labour Inspection Convention, 1947 (No. 81), and the Social Policy (Non-Metropolitain Territories) Convention, 1947 (No. 82), made under article 24 of the ILO Constitution by the World Federation of Trade Unions (WFTU).

Decision

The Governing Body approved the final report (GB.265/12/7) (March 1996) and declared the procedure closed.

Complaint Procedure

I. Introduction
1. In a communication dated 7 November 1994, the World Federation of Trade Unions (WFTU) made a representation under article 24 of the Constitution of the International Labour Organization alleging non-observance by the Government of France of the Labour Inspection Convention, 1947 (No. 81) and the Social Policy (Non-Metropolitan Territories) Convention, 1947 (No. 82).. France ratified these Conventions on 16 December 1950 and 26 July 1954, respectively. The declaration of application of Convention No. 82 to French Polynesia was registered on 26 July 1954, with amendments to Articles 3 (paragraph 3), 4, 8 (subparagraph (b)) and 18.(Endnote_1) The declaration of application of Convention No. 81 to the same territory, without amendment, was registered on 27 November 1974.
2. The provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the Government against which it is made, and may invite that Government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the Government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and a statement, if any, made in reply to it.
3. The procedure to be followed in ease of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
4. In accordance with article 2, paragraph 1, of the Standing Orders, the Director-General transmitted the representation to the Officers of the Governing Body.
5. At its 261st Session the Governing Body decided on the basis of the report submitted by its Officers that the representation was receivable and set up a Committee to examine it, composed of Mr. Dietrich Willers (Government member, Germany, Chairman), Mrs. Lucia Sasso-Mazzufferi (Employer member, Italy) and Mr. Jean-Claude Parrot (Worker member, Canada). In accordance with article 4, paragraph l(a)(c) of the Standing Orders, the Committee invited the Government to make any observations it deemed useful to communicate on the representation before 28 February 1995. The Government sent its observations in a letter dated 6 June 1995.
6. The Committee met in Geneva on 22 March 1996 to examine the representation and the observations received.
II. Examination of the representation
1. Allegations made by the World Federation of Trade Unions (WFTU)
7. The WFTU alleges that France has failed to enforce Articles 3 (paragraph 1), 4 (paragraph 1), 5, 9, 12 (paragraph 1), 13, 14, 19 and 21 of the Labour Inspection Convention, 1947 (No. 81), and Articles 18 (paragraph 1) and 20 (paragraph 1) of the Social Policy (Non-Metropolitan Territories) Convention, 1947 (No. 82).
8. The facts referred to in the representation are as follows: in 1987 the authorities in French Polynesia adopted labour legislation on training, certification and safety regulations (diving schedules)(Endnote_2) that are applicable, inter alia, to underwater divers employed on pearl farms. According to the WFTU the legislation contains safety regulations which are taken from those applicable to recreational diving and which completely disregard the fact that professional divers have to spend long periods on the seabed and have to repeat this diving schedule day after day. The inadequacy of these regulations and poor training are the cause of many occupational accidents that have resulted in the permanent disability or death of divers working in pearl farms in French Polynesia.
9. The training and safety regulations are different from the professional diving regulations that have been drawn up by the National Institute of Professional Diving (INPP). The INPP, whose participation is provided for under the said regulations, was invited by the director of the Employment and Vocational Training Agency for French Polynesia, in a letter dated 9 June 1987, to take part in a number of training courses. The Institute refused on the grounds that the basic training was not up to professional standards. The INPP states that the Order of 2 June 1987 raises several problems and that it is unfortunate that the text was not first submitted to the INPP which has a public service mandate from the French Government to harmonize the various professional diving training schemes. The INPP emphasizes that the text needs to be entirely re-examined to adapt it to international standards and that Polynesian divers whose training and classification have to be adapted to the requirements of French Polynesia and meet the standards adopted by the International Commission on which the INPP represents the French Government, are liable to be penalized. In a subsequent letter the INPP observes that the Order of 2 June 1987 was not endorsed by the INPP, although it was involved in its drafting, owing to the lack of consultation among the partners concerned and because some provisions were contrary to the regulations applied in France and abroad.
10. The WFTU also points out that the provisions of the aforementioned Order are not applied, and submits several documents (a copy of the agreement on straining for professional diving and a temporary professional diver's certificate) showing that, with one exception, the category A training courses (autonomous diving down to 12 metres) last nine to 12 days whereas article 5(a) of Order No. 0686/CM of 2 June 1987 provides for two to three weeks. It further alleges that the necessary inspection visits to enforce the regulations have not been carried out properly in the pearl farms.
11. The WFTU believes that the labour inspectorate should have notified the authorities of the risks involved and prevented people from continuing to engage in dangerous practices that have caused numerous diving accidents, some of them resulting in permanent disability or death. The labour inspectorate should have encouraged the use of professional diving tables instead of recreational diving tables and should have ruled that "temporary certificates" and short (courses that did not comply with local regulations, let alone those applicable in metropolitan France, were not valid for professional divers. It feels that this is a very serious shortcoming in services that are there to protect the health and safety of workers, a particularly important aspect of underwater work.
12. Since most of the divers concerned are Tahitians from the Tuamotou Islands, the WFTU considers that the existence of different safety and vocational training rules for divers operating in Tahiti and those operating in metropolitan France constitutes discrimination within the meaning of Article 18 of Convention No. 82. In professional diving safety regulations need to be applied that relate specifically to working conditions under water: the depth at which the work is carried out, the number and duration of daily dives, etc. The WFTU considers that non-observance of these rules is a violation of the right to life and to health, which is a fundamental human right.
2. Observations submitted by the Government of France
13. In its observations the Government recalls the rapid development of pearl farms in the Tuamotou Islands over the past 20 years. The sector is thought to employ some 2,000 people, of which 650 are registered wage-earners and probably about the same number are not registered, spread over 26 cooperatives, 283 family enterprises, 50 to 60 pearl farms and around 15 private companies.
14. Regarding working conditions, the Government states that the divers, who come from the atolls but also from Tahiti and metropolitan France, work at depths of 3 to 15 metres and, depending on the size of the pearl farm, spend between two and four hours a day under water in the course of several dives. The Government emphasizes the risks involved in this type of work, due to the use of equipment (compressors, air tanks), the presence of natural-phenomena (marine currents) and the proximity of marine fauna. According to the Government it is these factors as much as non-observance of the regulations that are at the origin of a number of occupational accidents. An analysis of past accidents shows that 60 per cent were due to failure to observe the surfacing speeds or decompression stops stipulated in the regulations in force (see table 1).
Table 1. Occupational accidents in pearl farms
Year / Number of accidents
1989 1 without permanent disability
1990 2 without permanent disability
1991 3: 2 fatal and 1 without permanent disability
1992 1 without permanent disability
1993 4: 1 fatal, 1 with permanent disability and 2 without permanent disability
1994 1 without permanent disability
15. The Government provides detailed information on how the competence, Q) in matters of labour legislation is shared between the State and the territory, the former being competent to establish the general principles of labour law and the latter to apply those principles by means of resolutions having the force of regulations. This is how the contested regulations came about: they include a number of the provisions of Decree No. 74-725 of 11 July 1974 concerning specific protection measures that apply to sites or establishments where work is carried out by divers operating at more than atmospheric pressure; these measures were in force in metropolitan France up to 1990. The Government recognizes that the territorial regulations reflect an approach to risk prevention for underwater activities that is 20 years old and that they could well be improved so as to offer guarantees equivalent to those afforded by Decree No. 90-277 of 28 March 1990 concerning the protection of workers operating in a hyperbaric environment, which is applicable in metropolitan France.
16. The Government states that the territorial authorities have prepared two resolutions that conform to recent national standards of occupational safety and training for underwater workers. The resolutions have been submitted to the INPP for a technical opinion. A Bill has also been put forward to update the definition of clandestine work which the Government believes is the prime cause of the accidents that have occurred. Finally, these measures are to be accompanied by a revision of the general principles of occupational safety and health.
17. In addition to this projected revision of the relevant laws and regulations, the State has taken action on the labour inspection front. The inspection services in the territory visited the pearl farms much more often in 1993 and 1994 than in the past: 19 atolls and 97 pearl farms (a third of which were family businesses) employing 500 workers (a third of whom were professional divers) were inspected. More than 20 per cent of the divers had no professional qualifications whatsoever. In 1994, 36 criminal cases were brought before the public prosecutor for 734. infringements (see table 2). The most common infringements were failure to register with the territory's Social Welfare Fund, failure to keep the special medical logbook, absence of diving records, employment of unqualified divers, failure to conduct preventive equipment tests, failure to undergo special medical visits, non-observance of decompression stops, and inadequate first-aid facilities. The Government believes that the action taken by the labour inspection services resulted in an immediate and substantial drop in the number of occupational accidents and concludes that strict enforcement of the territorial regulations could considerably reduce the risks to professional divers.
Table 2. Labour inspection visits to pearl farms
Year / No. of visits / No. of repeat visits / Observations / Warnings / Criminal procedures
1990 / 0 / 0 / 0 / 0 / 0
1991 / 4 for 71 salaries / 0 / 25 / 0 / 0
1992 / 7 for 82 salaries / 0 / 32 / 0 / 0
1993 / 10 for 51 salaries / 0 / 32 / 0 / 0
1994 / 36 for 391 salaries / 0 / 734 / 0 / 36
Total / 57 for 595 salaries / 0 / 877 / 0 / 44
18. The Government also provides training figures for divers (see table 3). The training courses, which are going to be improved further, currently use the professional diving tables applied in metropolitan France.
Table 3. Enrolment and admission of divers for occupational training
Year / No. of persons enrolled / No. of persons admitted
1992 /323 / 277
1993 /327 / 291
1994 / 254 / 164
19. Finally, the Government states that the diving accidents are attributable to: the rapid development of the pearl industry in isolated geographical regions; the large number of family or commercial enterprises, many of^which operating in the informal sector; the poor representativeness of occupational organizations; and the mainly financial difficulty of supervising operations that are located hundreds of kilometres from the labour inspection services. The Government considers that, compared with these fundamental considerations, the fact that the territorial regulations partly reproduced regulations that were abandoned five years ago in metropolitan France is of marginal significance and that their systematic enforcement is sufficient to reduce the safety and health risks to professional divers. The regulations do need to be improved but this must be done in a way that respects territorial competence in terms of labour law, which would be frustrated by extending metropolitan standards systematically to the territory.
20. The Government believes that the fact that the territorial regulations are not as stringent as those of metropolitan France is in no way discriminatory, since all divers operating within the territory whether local, metropolitan or foreign have to abide by the same regulations.
21. Finally, the Government lists the efforts that have been made by the State and by the territory to correct the present situation: revision of the laws on the general principles of safety and health and on the banning of clandestine work; preparation of new draft resolutions that take better into account the risks faced by divers; more regular visits by labour inspection services whose resources, especially their financial resources, have been increased; improved vocational training facilities; campaigns to make divers more aware of the risks they face; imposition of conditions on maritime concession-holders as regards the qualifications of employees and first-aid equipment; and instructions to the State's representative in the territory to make sure that inspection visits are conducted. Taken together these measures, which either already have been or shortly will be introduced, will make it possible to protect the safety and health of professional divers as much as possible in the territory of French Polynesia.
III. The Committee's conclusions
22. The Committee recalls that its competence is restricted to the examination of the application of Conventions Nos. 81 and 82 by France in the territory of French Polynesia, de jure and de facto, at the date the representation was received (7 November 1994). Consequently, the examination it is called upon to make of the regulations must be seen with this context. In the light of the information sent by the WFTU in its representation and by the Government in its observations, the Committee decided to consider the following points: Did the labour inspectorate fail to enforce existing regulations in establishments employing divers? Did the labour inspectorate fail to draw attention to the shortcomings of the regulations in force? Do any differences between the regulations in the territory and those applicable in metropolitan France constitute discrimination against Tahitian divers within the meaning of Article 18, paragraph 1, of Convention No. 82? Does the training of divers, as set out in the regulations and as implemented in practice, meet the requirements of Article 20 of Convention No. 82?
1. Enforcement of the regulations in force
23. The Committee wishes to draw attention to the fact that the WFTU and the Government of France express a similar viewpoint on the question of the enforcement of the regulations in force during the relevant period. The table communicated by the Government shows that the number of mspection visits to pearl farms, which were virtually non-existent from 1990 to 1993, was stepped up in 1994. Almost two-thirds of the visits and of the employers covered (63 and 65 per cent, respectively) appear in the figures for 1994. Moreover, more than 80 per cent of the observations and legal procedures initiated or undertaken between 1990 and 1994 following an inspection visit correspond to 1994 alone. The Committee notes the conclusion of the labour inspection service's annual report for 1992 which states that high-risk sectors (in terms of occupational accidents) such as professional diving cannot currently be taken into account by the labour inspectorate as regards safety and health, and this is very detrimental for the enterprises and employees concerned. Apart from Tahiti, the islands of the other archipelagoes are virtually ignored by the inspectorate which, because of the distances involved and the high cost of transport, conducts only sporadic visits. The Committee concludes that the application of Article 3, paragraph l(a) and (b), and Articles 12 and 13 of Convention No. 81 needs to be improved. On this point the Committee hopes that, as stated by the Government in its observations on budgetary resources inter alia, the labour inspection services in this sector will continue to conduct more regular visits, especially considering that only one-third of the professional divers had been inspected by 1994.
24. The Committee may note the Government's declaration that the action taken by the inspection services resulted immediately in a substantial drop in the number of occupational accidents. In the absence of information other than the data on fatal accidents and accidents that have caused permanent disability, the Committee is not in a position to appreciate the influence of inspection visits on enterprises in the sector. It trusts that detailed data on occupational accidents will be communicated to the labour inspectorate, in accordance with Article 14 of Convention No. 81, so that it can evaluate the impact of its mspection visits on the safety and health of workers.
2. Possible shortcomings in the regulations in force
25. The Committee notes that the adoption of the 1987 regulations by the authorities of the territory of French Polynesia was to cover a legal loophole by drawing in certain respects from the metropolitan regulations in force at the time. It points out that some of the divergences between the territorial regulations and the former metropolitan regulations concern technical matters that are closely bound up with the safety conditions in which underwater work has to be carried out, regardless of where this is. Comparing resolution 87/79 AT of 12 June 1987, which is applicable in French Polynesia, with Order No. 74-725 of 11 July 1974 shows that the former diverges from the latter in the following respects: (i) access to the diving profession may exceptionally be authorized by the labour inspector for adolescents between the ages of 16 and 18 (Section 4 of the resolution); (ii) the time spent working under water may be up to four hours (Section 12) whereas the metropolitan Order stipulates three hours of work; (iii) where percussion tools are used, the resolution does not provide for any reduction in the hours of work, whereas the metropolitan order stipulates that this should not exceed one and a half hours; (iv) the diving tables attached to the resolution (Section 12) are those used for recreational diving; (v) the levels of qualification of divers are not the same: level A (working at less than 12 metres depth) and level B (working at less than 50 metres depth) of the territorial regulations do not correspond class I (working at up to four bars) and class II (worlcing at up to six bars) of the metropolitan regulations. Consequently the qualifications of divers from the territory are not recognized elsewhere. Finally, there is no reference in the resolution to decompression chambers or to the technical specifications of the respiratory equipment.
26. There is no evidence that the labour inspectorate failed to draw the competent authority's attention to the defects not specifically covered by the existing provisions, as required by Article 3, paragraph (c), of Convention No. 81. On the contrary, the annual report of the labour inspectorate of the territory shows that it did in fact point to the risks in this sector in 1992. Moreover, the labour inspectorate was closely involved with a working party on professional diving that was set up to prepare new regulations, one of whose three committees that was set up on 23 July 1993 to look into the existing regulations and make any desirable improvements based on the findings of inspection visits to pearl farms and the analysis of occupational accidents, was chaired by the department head of the labour inspectorate. This committee met on 14 occasions between November 1993 and June 1994 and drafted a resolution amending the existing regulations on a number of points.
27. The Government states that this draft resolution has been submitted to the INPP for an opinion.
3. The discriminatory nature of the territorial regulations
28. The relevant provisions of Article 18, paragraph 1, of Convention No. 82 are as follows:
1. It shall be an aim of policy to abolish all discrimination among workers on grounds of race, colour, sex, belief, tribal association or trade union affiliation in respect of:
(a) labour legislation and agreements which shall afford equitable economic treatment to all those lawfully resident or working in the territory;
(b) admission to public or private employment;
(c) conditions or engagement and promotion;
(d) opportunities for vocational training;
(e) conditions of work;
(f) health, safety and welfare measures.
This provision means that it is the authority's responsibility to eliminate any discrimination based on any one of the recognized criteria (race, colour, etc.) between people working in the territory.
29. The Committee notes that there are no international standards on the qualifications, training, safety and health protection of people working in a hyperbaric environment. In some countries, however (Australia, France, Norway, Singapore, United Kingdom), divers' qualifications and safety rules have been brought into line. It notes further that the differences between professional divers who have acquired their skills in the territory of French Polynesia and those who have done so in metropolitan France relate to the classes of qualifications, on the one hand, and certain aspects of working and safety conditions, on the other. The metropolitan regulations (Endnote_3) define three classes of qualifications: class I (divers qualified to work at up to four bars relative pressure (40 metres)); class II (up to six bars relative pressure (60 metres)); and class III (over six bars relative pressure). The 1987 territorial regulations define two classes: class A (qualification to work at less than 12 metres depth) and class B (qualification to work at up to 50 metres depth). The two classifications are not the same. Metropolitan underwater enterprises conducting part of their operations in the territory are required to abide by the metropolitan regulations and to employ only divers who have the corresponding qualifications (classes I, II or III). This means that divers who have acquired their qualifications under the territorial regulations (classes A or B) cannot be recruited by metropolitan enterprises engaged in underwater work in the territory of French Polynesia. This point was made by the director of the INPP in his letter of 6 June 1991 to the authorities of the territory and by a TEXMAR engineer specializing in underwater engineering and safety in a note on diving accidents in Polynesia.
30. The Committee notes that Article 18, paragraph 1, of Convention No. 82 relates to workers exercising their activities within the jurisdictional limits of the territory. It therefore does not apply to discrimination between workers operating in French Polynesia and workers operating in metropolitan France. However, the Committee observes that professional divers of metropolitan enterprises operating in the territory of French Polynesia are covered by metropolitan standards and are recruited on the basis of criteria laid down in metropolitan regulations. By establishing a different classification from that adopted in metropolitan France and a number of other countries, the territorial regulations introduce a discrimination which prevents divers from obtaining employment in enterprises governed by the metropolitan regulations.
31. The Committee notes that, although the territorial regulations apply to all divers employed by enterprises not bound by regulations offering greater protection, this way of applying the regulations entails disproportionately unfavourable consequences for a majority of persons who are characterized by their race, colour or membership of a traditional group, since most if not all divers who acquire their qualifications under the territorial regulations are from the Tuamotou Islands. The Committee therefore notes that the substantial discrepancies between the metropolitan and territorial regulations do entail discrimination within the meaning of Article 18, paragraph 1, of Convention No. 82. The Committee also notes that the draft resolutions that the Government has communicated maintain the differences in class of qualification established by the regulations of 1987. It trusts that the opinions of the INPP, in so far as they seek to eliminate indirect causes of discrimination, will be taken into account before the final texts are adopted.
4. Conformity of vocational training with the requirements of Article 20 of Convention No. 82
32. Paragraph 1 of Article 20 of Convention No. 82 reads as follows:
1. In order to secure high productivity through the development of skilled labour in non-metropolitan territories, training and new techniques of production shall be provided in suitable cases in local, regional or metropolitan centres.
33. The Committee may note that training in new production techniques should accordingly take into account the latest scientific and technical developments. Consequently, though it is legitimate for the territorial authorities to adapt their training regulations to local conditions, their doing so should not run counter to the basic rules of safety and health for divers. More specifically, the training should not provide skills that are recognized only within the territory and only for activities that are not covered by stricter regulations governing qualifications and safety. The Committee stresses the point that entrusting the training of professional divers to bodies whose vocation is to train recreational divers and whose staff are not necessarily qualified to teach professional diving as defined by the INPP, which is the competent authority in this field, does not seem to be conducive to ensuring compliance with the provisions of paragraph 1 of Article 2 of the Convention. The Committee recalls that the vocational traimlog courses that have actually been conducted do not last as long as is .stipulated in the territorial regulations, let alone the metropolitan regulations, and that this casts some doubt on the usefulness of the training provided. Finally, the Committee notes that the draft resolution laying down the conditions for organizing and financing professional diving trailing does not provide any satisfactory solution in this respect.
IV. The Committee's recommendations
34. In the light of the foregoing conclusions, the Committee recommends that the Governing Body:
(a) approve this report and, specifically, the conclusions set out in paragraphs 23, 31 and 33 concerning the application of Articles 3 (paragraph 1(a) and (b)), 12 and 13 of the Labour Inspection Convention, 1947 (No. 81), and of Articles 18 (paragraph 1) and 20 (paragraph 1) of the Social Policy (Non-Metropolitan Territories) Convention, 1947 (No. 82);
(b) invite the Government, in the light of the conclusions set out in paragraphs 23 and 24, to take the necessary measures:
(i) to ensure the effective application of the provisions of Articles 3, 12 and 13 of Convention No. 81 in activities employing professional divers and, specifically, that the labour inspectorate of the territory of French Polynesia be given the human, material and technical resources to carry out the necessary inspection visits;
(ii) to continue to provide labour inspectorate data on occupational accidents involving professional divers;
(c) invite the Government, in the light of the conclusions set out in paragraphs 31 and 33, to take steps to ensure that the territorial regulations, the need for whose revision has been recognized, be brought into line with the requirements of Convention No. 82, inter alia, by eliminating provisions that can result in indirect discrimination and by adapting the training to the rules of the art of professional diving;
(d) invite the Government of France to provide, in the reports on the application of Conventions Nos. 81 and 82 that it is required submit under Article 22 of the Constitution of the ILO, detailed information, inter alia, on the adoption of the laws and regulations to which it has referred, on the inspection visits to enterprises employing professional divers, on the observations and reports that the visits give rise to, on the nature of infringements noted and on accidents that have occurred in those enterprises, so that the Committee of Experts on the Application of Conventions and Recommendations can pursue its examination of this question;
(e) declare closed the procedure initiated in connection with this representation.
Geneva, 22 March 1996.
(Signed) D. Willers,
Chairman.
L. Sasso-Mazzuferi.
J.-C. Parrot.
Point for decision: Paragraph 34.
Endnote 1
Under the declaration of application, the second paragraph of Article 18 is not applicable to the territories listed in the declaration.
Endnote 2
Order No. 0686/GM of 2 June 1987 laying down the conditions for organizing and financing training for professional diving, and resolution No. 87-79 AT of 12 June 1987 laying down specific protection measures for underwater divers.
Endote 3
Confirmed on this point by Order No. 90-277 of 28 March 1990 concerning the protection of workers operating at more than atmospheric pressure.