The Labor Code of New Caledonia and the Constitution: about the 2011-205 decision QPC of December 9, 2011- M. PATELISE

The New Caledonia labor code and the Constitution: about the 2011-205 decision QPC of December 9, 2011- M. PATELISE.


New Caledonia is the most successful example of normative territorialization within the French unitary state. The Matignon agreements of June 26, 1988 followed, on August 20, 1988, by the Oudinot agreement, signed by France and the representatives of New Caledonian political parties, were implemented by the Referendum Act of November 9, 1988, laying down the provisions statutory and preparatory to the self-determination of New Caledonia in 1998 [1] . The Noumea Accord of 5 May 1998 [2] , constitutionalized, postponed the self-determination vote between 2014 and 2018. Voted on the basis of Article 77 of the Constitution, the Statutory Law of 19 March 1999 [3]created new institutions (congress, government, customary senate, economic and social council), established customary civil status and rules on customary property, made a transfer of powers from the French state to the new Caledonia (Article 21) and framed the autonomous and exclusive legislative power of the Congress in certain matters (Article 99). This almost perfect transfer of power enjoyed by New Caledonia has led some authors to question the compatibility of the territorial organization of institutionalized powers and the particular autonomy that derives from them in view of the unitary principle of the French Republic [4]  !

However, Article LP 311-2 of the Labor Code provides an ambiguous interpretation of the exercise of certain rights and freedoms guaranteed by the Constitution. It is in this context that the Social Chamber of the Court of Cassation seized, in a judgment 2231 of October 12, 2011, the Constitutional Council of a priority question of constitutionality “QPC”. M. PATELISE was concerned as to whether the provisions of Article Lp. 311-2 of the Labor Code of New Caledonia in its wording resulting from the law of the country 2008-2 of 13 February 2008 did not infringe the rights and freedoms guaranteed by the Constitution.

In its decision of 9 December 2011 [5] , the Constitutional Council after recalling that the legislature can treat employees differently, confirmed the principle of the division of powers between the State and New Caledonia, declared the non conformity of Article LP 311-2 to the Constitution. In fact, after having exempted “employees” from the benefit of trade union protection, this text has not implemented any other measure of such a nature as to ensure to these workers the exercise of freedom of association and the principle of participation of workers who are constitutional requirements resulting from the Preamble to the 1946 Constitution.

If a country’s law can accommodate the exercise of the collective participation of the country, it can not deprive employees of constitutionally guaranteed protection.

[1] AGNIEL G. “the statutory experience of New Caledonia or the study of yo-yo at the service of the institutional evolution of an overseas territory” in FABERON JY (dir.)The future Statutory Order of New Caledonia,NED No. 5053-54, 1997 p. 41 s.

[2] Organic Law of 20 July 1998 – Official Journal of 20 and 21 July 1998. A Title XIII, composed of Articles 76 and 77, reserved for the transitional situation in New Caledonia, has been included in the Constitution.

[3] OJ 99-209 (OJ of 21 March 1999, page 4197), Decision 99-410 DC of 15 March 1999 (OJ pp. 4234).

[4] FABRE MH. “The unity and indivisibility of the Republic: reality, fiction ? RDP, 1982, p. 607f.


Author: Avocat

Leave a Reply

Your email address will not be published. Required fields are marked *