Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

Further to its previous comments, the Committee notes the detailed information provided by the Government in its report. It also notes the comments by the New Zealand Employers' Federation (NZEF) and by the New Zealand Council of Trade Unions (NZCTU), as well as the Government's reply to these comments. The Committee has also taken note of the discussion in the Conference Committee on the Application of Standards in 1996.

Scope of the national system of labour inspection

1. The Committee notes the Government's indication that a system of labour inspection is maintained in respect of all workplaces, including industrial, commercial, non-commercial workplaces, and in all industries including in agricultural, transport and mining industries and consists of a Health and Safety Inspectorate and of a Labour Inspectorate.

2. Application to public sector undertakings. The Government states that no distinction is made in the Employment Contracts Act, 1991, the Health and Safety in Employment Act, 1992, and most other employment legislation between public and private sector workplaces; local government industrial undertakings are fully covered by the inspectorates, no industrial workplaces are core Crown agencies, as the Government has divested in recent years its industrial undertakings, and the remainder has been restructured as state-owned enterprises, which, according to a Crown law office opinion are not considered part of the Crown for minimum code jurisdictional purposes. The Committee also notes that in response to the NZCTU which considers that public organizations are treated differently from those in the private sector, the Government states that while the Crown cannot be prosecuted under the Health and Safety in Employment Act, an application can be made under section 3 of that legislation to the High Court. The Committee takes note of these explanations. It hopes that all the necessary measures have been taken or would be envisaged to fully apply the Convention in law and in practice to public sector industrial undertakings (Articles 1, 2 and 17, paragraph 1, of the Convention).

3. Extension to commercial undertakings. The Committee notes the Government's statement that although New Zealand's ratification of the Convention excluded Part II on labour inspection in commerce, the system of labour inspection applies equally to the commercial sector and no distinction is made in law or in administrative practice by the labour inspectorate between industry and commerce. The Committee notes that the Government is further examining national law and practice and how it relates to the possibility of ratifying the remaining Articles of the Convention. The Committee recalls that a Member who has made a declaration of exclusion of Part II may at any time cancel that declaration by a subsequent declaration. The Committee hopes that the Government will in its future reports provide information on any developments in this regard (Article 25, paragraph 2).

Enforcement

4. Adequacy of the number of inspectors. The Committee notes that the NZCTU questions whether the 19 inspectors in six offices of the Labour Inspectorate are capable of monitoring and effectively enforcing the minimum code, and why a large disparity exists with the number of inspectors in the Safety and Health Inspectorate (234 in 18 offices). The Committee notes the Government's statement to the Conference Committee and in its report that it believed that the first step in an efficient enforcement policy was to prevent abuse through active information, a key source being the Inspectorate's information centre opened in 1994 which provided information in reply to approximately 150,000 requests per year, of which one-quarter were from employers. The Government adds that there exists a separation of functions in the Labour Inspectorate which comprises labour inspectors responsible for the enforcement of the statutory employment conditions and information officers, thus allowing inspectors to concentrate on their enforcement roles.

The Committee notes that the number of inspectors in the Labour Inspectorate, which in the past was on the increase, has remained the same since the examination of the Government's previous report. It also notes that the NZCTU continues to allege that this number is inadequate. The Committee, referring also to paragraphs 211 and 215 of its 1985 General Survey on labour inspection, hopes that appropriate consideration is given to the factors to be taken into consideration in accordance with Article 10 of the Convention, so that workplaces can be inspected as often and as thoroughly as necessary and that the Government will provide information in this regard (Articles 10 and 16).

5. Regular versus complaint-based procedures. The Committee notes the Government's information on the national priority areas identified by the Occupational Safety and Health Service for the proactive workplace visits by the Health and Safety Inspectorate, and on the anticipated investigations following complaints and notified events. The Committee notes the comments by the NZEF on the onus placed on the employer by the 1992 Health and Safety Act to provide a safe and healthy working environment. Employers are required to have effective methods for detecting, assessing and eliminating hazards, or for minimizing their effects by protective equipment and clothing; they are also required to maintain safety and health facilities and to take all practicable steps to obtain the workers' consent to the monitoring of their health in relation to any hazard.

The Committee further notes the Government's indication that the inspection of workplaces in relation to the application of legislation administered and enforced by the Labour Inspectorate in the industrial relations service is normally undertaken in response to formal complaints; and that proactive enforcement is also carried out to achieve more widespread compliance with relevant employment obligations.

The Committee takes note of the comments by the NZCTU, alleging that the Government has adopted a "hands-off" policy in relation to enforcement of the minimum code of employment rights, while the CTU views the role of the Labour Inspectorate within the industrial relations service as pivotal to ensuring that the parties to employment contracts comply with their obligations under the minimum code through both the provision of information and investigation. According to the NZCTU the Government's report shows that it considers the most effective compliance with the minimum code is through the provision of information, accessibility to institutions and empowerment of employees and employers. No reference is made to enforcement through self-initiated labour inspection, while proactive investigation is essential to ensuring compliance with the minimum code.

The NZCTU adds that the complaint-based inspection in the Labour Inspectorate means that breaches of law are routinely unreported and undetected: anonymous complaints are not responded to; complainants fear retribution if identified; complaints are often only made in extreme circumstances, or when an employee is on the point of leaving the job. Referring in particular to the role of the Labour Inspectorate under the Equal Pay Act, 1972, the NZCTU alleges that the enforcement of this Act is consistently inadequate (Report on the Efficiency of the Equal Pay Act by the Ministry of Women's Affairs 1994); only four complaints have been filed since 1988, which is a sign not of the satisfactory application of the Act, but rather a consequence of the inactivity of the Labour Inspectorate, its policy being now to respond only to written complaints and not to make routine inspections, which are essential to enforcing the Equal Pay Act.

The Committee requests the Government to provide its comments on these allegations by the NZCTU, in particular as to the balance between complaint-based versus routine inspections by the Labour Inspectorate, and in general, on the measures taken or envisaged to ensure that workplaces are inspected as often and as thoroughly as necessary to ensure the effective application of the relevant legal provisions (Article 3, paragraph 1(a) and Article 16).

6. Confidentiality of complaints. The Committee notes the information provided by the Government that though the labour inspectors' intention is not to divulge the source of any complaint unless it is absolutely necessary, in many cases the source must be revealed in order to inquire about specific wage records and for the purpose of paying arrears. Referring also to its previous comments, the Committee again draws the Government's attention to existing alternative means of investigation by generalizing the inquiry and examination of the undertaking's records to permit dealing not only with the complaint but also to possibly uncovering other cases. The Committee hopes that the Government will provide information on any improvements made in this respect (Article 15(c)).

7. Power to enter the premises. In its previous comments the Committee noted that under the Employment Contracts Act (section 144(1)(A)) and the Health and Safety in Employment Act (sections 31(1) and 35) inspectors may enter the premises or workplace at any reasonable hour. It recalled the importance of the power of inspectors to enter establishments liable to inspection at any hour of the day or night. The Committee takes note of the statement by the Government to the Conference Committee that inspectors are empowered to enter workplaces during their operating hours whether daytime or night-time. It also notes the Government's statement in its report that in practice the difference between "any reasonable" and "any hours of the night or day", is a semantic distinction. The Committee refers to paragraphs 163 and 164 of its 1985 General Survey on labour inspection where it indicated that such a clause would not appear contrary to the spirit of the Convention, in so far as it is up to the inspector to decide whether or not a night visit is "reasonable" and in so far as this right is clearly recognized in the country's administrative or legal practice. The Committee hopes that the Government will provide information as to the practice (Article 12, paragraph 1(a)).

8. Prosecution and sanctions. The Committee notes that the NZCTU alleges that, as concerns in particular a range of statutes such as the Minimum Wage Act and the Holidays with Pay Act, the Labour Inspectorate does not prosecute offending employers with a view to having criminal penalties imposed on them. The Committee notes the Government's reply to the effect that the Labour Inspectorate's priority is to ensure that a breach is rectified, this being generally accomplished without the need for formal action in court; however, penalties are sought in cases of serious breach warranting this action. The Committee requests the Government to provide information on the cases in which action was initiated including copies of court decisions. As concerns the Safety and Health Inspectorate the Committee notes that the NZCTU alleges that breaches of the legislation are only prosecuted selectively, based in part on the availability of resources, which has the effect that certain types of breaches are unlikely to be penalized. The Committee notes the Government's reply that all cases of possible non-compliance are considered in accordance with OSH's prosecution guidelines, which have recently been revised. The Committee hopes that the Government will provide information on the results achieved in the application of safety and health provisions through the revised prosecution guidelines (Article 17, paragraph 1).

Supervision and control of a central authority; independence and stability

9. The Committee notes the NZCTU's comment that there is some evidence that the Safety and Health Inspectorate is looking to contract out some of its responsibilities to third-party providers, some of whom are likely to be employers allowed to assess themselves or to audit their own workplace. The Committee takes note of the Government's reply that the Safety and Health Inspectorate is currently in the process of examining various options to increase its effectiveness, including the use of third-parties to promote safety and health. The Government adds that responsibility for enforcement cannot be contracted out and that any third-party approach would by definition not include an approach where employers would self-audit their workplaces without independent validation to ensure that there would be no abuse. The Committee requests the Government to provide information on further developments in this matter. Recalling in particular the obligations under Articles 4 and 6 of the Convention, the Committee hopes that any action taken will respect the provisions of these Articles of the Convention.

Cooperation: Notification of occupational accidents and diseases

10. The Committee has previously noted the comments by NZCTU of a lack of cooperation between the Safety and Health Inspectorate and the Accident Rehabilitation and Compensation Insurance Corporation (ARCIC). The Committee notes the Government's indication that in 1996 these two agencies signed joint work collaboration protocols to improve the coordination and effectiveness of the workplace injury prevention activities (Article 5(a)).

The Committee also notes the information provided by the Government on measures taken to ensure that occupational accidents and diseases be notified, failure to notify being considered as a serious offence. The Committee notes however the indication by the NZCTU that the ability of the Health and Safety Inspectorate to investigate serious accidents may be reduced by the proposed introduction of a time-activated standard for the definition of serious harm and that this is likely to reduce the number of temporary severe cases of serious harm that are reported, thereby reducing the inspection awareness of severe injury cases, and their ability to inspect the circumstances leading up to the injury. The Committee also notes the Government's reply that no decision has yet been taken to change the definition of serious harm and that one of the reasons for the present low level of notification is lack of understanding of the requirements by employers. Notification being an important factor for inspection and prevention targets, the Committee hopes that the Government will continue to provide information on measures taken for the improvement of notification of occupational accidents and diseases (Article 14).