Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

Further to its previous comments on the need to set out in specific legislation the principles laid down in several Articles of the Convention, the Committee notes the Government’s statement in its report that the Convention is fully applied and its reference in this respect to territorial Act No. 2002-021 of 20 September 2002, respecting the rules applicable to enterprises established outside New Caledonia and engaged in the provision of services with salaried employees, which amends Ordinance No. 85-1181 of 13 November 1985, as amended, respecting the guiding principles of labour law and the organization and operation of the labour inspectorate and the labour tribunal in New Caledonia, as well as Congress resolution No. 302 of 27 August 2002 giving effect to the above territorial Act (hereinafter, “resolution No. 302”). However, the Committee is bound to note that this Act, as indicated by its title, does not apply to workers employed by enterprises established on the territory of New Caledonia and that its provisions may therefore only be deemed to give effect to the Convention for a strictly limited number of workers (namely, detached workers, for a maximum period of between one and three years). The Committee therefore once again requests the Government to provide all relevant information on the application of the following provisions of the Convention.

Article 1 of the Convention. Definition of wages. The Committee notes that only section 23 of resolution No. 284 of 24 February 1988 respecting wages contains a definition of wages, namely the “amounts due in respect of remuneration to all persons employed or working, in whatever capacity or location, for one or more employers, irrespective of the amount and nature of their remuneration, the form and nature of their contract”. However, the Committee notes that this definition is only valid for the application of the provisions of the resolution relating to the attachment by order or the assignment of remuneration owed by an employer, and not for the application of the resolution as a whole. The Committee therefore requests the Government to indicate whether other provisions of laws or regulations contain a definition of wages.

Article 2. Scope of application. The Committee notes that under the terms of section 1, Ordinance No. 85-1181 of 13 November 1985 respecting the guiding principles of labour law and the organization and operation of the labour inspectorate and the labour tribunal in New Caledonia and its dependent territories (hereinafter, Ordinance No. 85-1181) is not applicable, unless otherwise provided, to persons covered by the conditions of service of public employees or by public law. The Committee requests the Government to indicate the provisions which guarantee the protection of wages for workers who are thus excluded from the scope of application of this Ordinance.

Article 4. Partial payment of wages in kind. The Committee notes sections 6 to 9 of resolution No. 302, which are in conformity with Article 4 of the Convention, but only apply to enterprises established outside New Caledonia and engaged in the provision of services with employed staff. The Committee hopes that the Government will adopt provisions in the near future which are of general application in order to give effect to this provision of the Convention, for example modelled on those contained in resolution No. 302.

Article 5. Payment of wages directly to the worker concerned. The Committee notes that under the terms of section 24 of Ordinance No. 85-1181, wages must be paid in legal tender, but that there is no provision establishing that wages must be paid directly to the worker, to the exclusion of any other person, as required by the Convention. The Committee requests the Government to indicate the manner in which compliance with this rule is ensured.

Article 6. Freedom of workers to dispose of their wages. The Committee recalls that the requirements set out in Article 6 of the Convention are intended to protect the full discretion of workers as to the use they wish to make of their wages against any kind of constraint that an employer might exert in this regard (for example, the obligation to place part of their earnings in a works savings fund). The Committee requests the Government to provide information on the measures adopted or envisaged to give effect to this provision of the Convention.

Article 7. Works stores. The Committee notes section 13 of resolution No. 302, which is in conformity with Article 7 of the Convention, but only applies to enterprises established outside New Caledonia which are engaged in the provision of services through salaried staff. The Committee hopes that the Government will adopt provisions in the near future that are of general application giving effect to this provision of the Convention, based for example on those contained in resolution No. 302.

Article 9. Payment by a worker for the purpose of obtaining or retaining employment. The Committee notes that, by virtue of section 22 of resolution No. 284 of 24 February 1988 respecting wages, it is prohibited in hotels, cafés, restaurants and similar undertakings, in artistic performance enterprises, as well as in those engaged in navigation and transport, to require workers to make payments of money or to make deductions at the time of recruitment or dismissal, or during the normal performance of work by such employed persons. However, the Committee emphasizes that the prohibition laid down in Article 9 of the Convention is general in its scope and is not therefore intended solely to protect workers in certain sectors of activity. The Committee accordingly requests the Government to indicate the provisions which prohibit, in sectors not covered by section 22 of resolution No. 284, any deduction from wages with a view to obtaining or retaining employment.

Article 10. Attachment and assignment of wages. The Committee notes that Ordinance No. 98-522 of 24 June 1998 updating and adapting labour law in the overseas territories, communities and departments introduced section 28(2) into Ordinance No. 85-1181, under the terms of which the amounts due in respect of remuneration may only be attached or assigned to the extent and within the remuneration thresholds determined by Congress resolution. The Committee requests the Government to indicate whether the Congress has adopted a resolution under this Ordinance determining the extent to which wages may be attached or assigned and, if so, to provide a copy.

Article 13. Place and date of the payment of wages. The Committee notes section 12 of resolution No. 302, which is in accordance with Article 13 of the Convention, but only applies to enterprises established outside New Caledonia which are engaged in the provision of services through salaried staff. The Committee hopes that the Government will adopt provisions in the near future that are general in scope in order to give effect to this provision of the Convention, based for example on those contained in resolution No. 302.

[The Government is asked to reply in detail to the present comments in 2008.]