Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Terres australes et antarctiques françaises

Autre commentaire sur C111

Observation

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The Committee notes the observations of the General Confederation of Labour – Force ouvrière (CGT-FO) dated 15 November 2022.

Articles 1–3 of the Convention. Protection of seafarers against discrimination on all the grounds set forth in the Convention. The Committee notes the Government’s repeated indication that: (1) since May 2007, Act No. 2005-412 of 3 May 2005 on the establishment of the French International Register (RIF) has prohibited the registration of commercial vessels in the register of the French Southern and Antarctic Territories (TAAF); (2) the fleet registered in the TAAF now only consists of a few fishing vessels; (3) the publication of the legislative part of the Transport Code (applicable since 1 December 2010), codifying maritime labour law, has clarified the labour regulations applicable to the residual fleet registered in these territories; and (4) the provisions giving effect to the Convention are contained in sections 225-1 and 225-2 to 225-4 of the Penal Code. The Government explains that the penal laws and regulations are automatically fully applicable to the TAAF pursuant to section 1-1 of the Act of 6 August 1955 as amended by section 18 of Act No. 2011-334 of 29 March 2011.

The Committee notes that section 225-1 of the Penal Code provides as follows: “Discrimination comprises any distinction applied between natural persons by reason of their origin, sex, family situation, pregnancy, physical appearance, family name, place of residence, state of health, disability, genetic characteristics, morals, sexual orientation or identity, age, political opinions, trade union activities, or their membership or non-membership, actual or presumed, of a given ethnic group, nation, race or religion.” Discrimination also comprises any distinction applied between legal persons on the same grounds. The Committee also notes that section 225-2(2), (3) and (5) of the Penal Code provides as follows: “Discrimination committed against a natural or legal person shall be punished by three years’ imprisonment and a fine of 45,000 euros (€) where it consists of: […] (2) obstructing the normal exercise of any economic activity; (3) refusing to hire, to sanction or to dismiss a person; (5) subjecting an offer of employment, an application for a work placement or a training period in an enterprise to a condition based on one of the factors referred to under section 225-1 or 225-1-1”. The Committee requests the Government to provide information on the application in practice of sections 225-1 and 225-2 of the Penal Code, including on appeals relating to discrimination lodged against the owners of ships registered in the TAAF and on the measures taken in cooperation with the social partners to inform seafarers of their rights under the Convention. The Committee also requests the Government to clarify whether direct and indirect discrimination are covered by these provisions.

The Committee notes that, according to the observations of the CGT-FO, even though the Act of 6 August 1955 transposed the penal regulations relating to discrimination in the TAAF, the whole of the documentation provided does not make the status of contractual employees entirely clear. The CGT-FO indicates that contractual employees seem to be subject both to the regime established by the Act of 15 December 1952 – establishing a Labour Code in the French Southern and Antarctic Territories, providing for a derogation from statutory labour legislation – but also to that of the Act of 6 August 1955 (referring to the transposition of the rules relating to the status of public employees in the TAAF). Given that contractual employees are subject to an appointment process, the CGT-FO suggests that this confusion over the applicable legal basis regarding rules on non-discrimination constitutes a lack of legal certainty that may have an impact on the effectiveness of action against discrimination at the time of recruitment. The Committee requests the Government to clarify the legislation applicable to contractual employees, specifying in more detail the provisions prohibiting discrimination and aimed at ensuring equal opportunities and treatment for the latter.

Article 1(2). Inherent requirements of a particular job. The Committee notes that, under section 225-3 of the Penal Code, the prohibition on discrimination does not apply to: “(1) discrimination based on state of health, when it consists of operations aimed at prevention and coverage of the risk of death, risks to the physical integrity of the person, or the risk of incapacity to work or invalidity. However, when discrimination is based on the consideration of predictive genetic tests relating to an illness that has not yet been diagnosed or genetic predisposition towards an illness, such discrimination shall be punished […]; (2) discrimination based on state of health or disability, if it consists of a refusal to hire or dismiss based on a medically established incapacity, according to the provisions either of title IV of book II of the Labour Code or of the laws issuing statutory provisions relating to the civil service; (3) recruitment discrimination based on sex, age or physical appearance, where such a ground of discrimination constitutes an essential and determining factor in occupational terms and provided that the objective is legitimate and the requirement is proportional; (5) refusal to hire on the grounds of nationality when this results from the application of statutory provisions relating to the civil service; (6) discrimination linked to place of residence when the person responsible for supplying a good or service is in a situation of manifest danger. Measures taken in favour of persons residing in certain geographical areas and intended to promote equal treatment shall not constitute discrimination". The Committee requests the Government to provide information on the manner in which section 225-3 of the Penal Code is applied in practice, giving specific examples of authorized exceptions.

Application of the principle of equality of opportunity and treatment by collective agreements.The Committee requests the Government to send copies of collective agreements concluded regarding employment regulations for seafarers and working conditions on ships registered in the TAAF so that it can assess whether the Convention is applied.

Statistics. The Committee requests the Government to provide: (i) statistics disaggregated by sex, origin and function relating to crew members of ships registered in the TAAF, including the number of contractual employees; and (ii) information on inspections carried out on the aforementioned ships and, if applicable, on violations recorded by labour inspectors and penalties actually imposed.