Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

Referring also to its observation under the Convention, the Committee requests the Government to provide further information on the following points:

1. Scope of the national system of labour inspection: public sector undertakings. In its previous comments the Committee expressed the hope that the necessary measures would be taken or envisaged to fully apply the Convention in law and practice to public sector industrial undertakings. The Committee notes the indication in the Government's report that the Government still faces legal difficulties in prosecuting Crown entities; however, all complaints on possible non-compliance are investigated in the same manner as the private sector. Furthermore, any breaches of the minimum code or the Health and Safety in Employment Act in the public sector entity can be dealt with by other appropriate means, at an administrative level or via the seeking of a declaratory court judgement. The Government also indicates that local government industrial undertakings are fully covered by the inspectorates and that there are no hindrances, in law or practice, to labour inspectors and health and safety inspectors applying the full ranges of their powers, including taking legal proceedings, against those bodies. The Committee asks the Government to describe the legal difficulties in prosecuting Crown entities and to indicate whether any specific measures have been undertaken or are envisaged to overcome them so that the full application of the Convention to public sector industrial undertakings is ensured (Articles 1, 2 and 17, paragraph 1, of the Convention).

2. Scope of the national system of labour inspection: extension to commercial undertakings. The Committee notes the Government's indication that although New Zealand has not ratified Part II of the Convention, the system of labour inspection applies equally to the commercial sector and that no distinction is made in New Zealand law or in administrative practice by the Labour Inspectorate between industry and commerce. The Government also has restated its previous indications that it is further examining the national law and practice and how it relates to the possibility of ratifying the remaining section of the Convention. The Committee asks the Government to continue to supply information on any developments in this respect (Article 25, paragraph 2).

3. Cooperation with private institutions engaged in similar activities. In its observations the NZEF acknowledges the work done by the Labour Inspectorate both in relation to accident prevention and in ensuring employees are made aware of their rights under New Zealand's statutory minimum code, and points out that a number of organizations, including the NZEF itself, are also involved in providing assistance of this nature. The NZEF indicates that it produces a wide range of booklets for employers on relevant legislation and related matters; that its regional organizations run seminars for employers on topics relevant to the employment relationship; and that they would conduct occupational health and safety audits of employers' premises and provide best practice advice. Noting these observations the Committee asks the Government to give particulars concerning the arrangements to promote effective cooperation between the inspection services and private institutions engaged in similar activities.

4. Adequacy of the number of inspectors. In its comments the NZCTU alleges that the actual number of inspectors employed is six less than at the time of the 1997 report. The NZCTU does not consider that the information officers are labour inspectors for the purposes of the Convention, because they only carry out the functions set forth in Article 3(1), paragraph 1(b), of the Convention and they do not hold either the qualifications or the statutory powers to carry out the enforcement or reporting duties of inspectors. The NZCTU also questions whether 19 staff members are sufficient for monitoring and enforcement of the minimum employment codes efficiently; and why a large disparity in staff resources exists between the Health and Safety Inspectorate (OSH) and the Labour Inspectorate. The Committee notes the Government's response that OSH inspectors are not a branch of, nor form part of, the Labour Inspectorate, but they are distinctly different from each other, operate independently and are governed by separate legislation. The Government has also indicated that when the 1997 report was written, not all the inspector positions were filled due to staff turnover, but the recruitment to fill these positions was under way and a further three inspectors have since been recruited. The Committee asks the Government to continue to supply information on any developments in this respect.

5. Regular versus complaint-based procedures. The Committee has previously noted the comments by the NZCTU alleging that the Government had adopted a "hands-off policy" in relation to enforcement of the minimum code of employment rights. The Committee requested the Government to provide its comments on these allegations by the NZCTU, in particular as to the imbalance 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.

The Committee notes the Government's response indicating that the most effective means of ensuring the minimum code are: to make information on employment rights and conditions available to all employees and employers via a special line (an information centre, widely distributed pamphlets, seminar activities, etc.); and to empower employees and employers to enforce terms and conditions themselves through accessible employment institutions (employment tribunal, employment court); and investigation and enforcement by labour inspectors.

The Committee further notes that according to the most recent allegations of the NZCTU the Government has never supplied any evidence to support the assertion that information services are sufficient to ensure compliance with the minimum code. The NZCTU also alleges that in the absence of systematic inspection of wage and time records there is no means of even estimating the actual levels of compliance; that the Government gives no indication of the extent to which the provision of information has influenced levels of compliance; and that the Government's model does not fit within the framework of the Convention, envisaging inspections as an integral part of enforcing statutory minimum protection for workers. In its response to these allegations the Government confirms that in its opinion ensuring widespread employee and employer knowledge of the minimum employment codes is the most effective way in which to ensure compliance, but that the Labour Inspectorate would, where public interest warrants, investigate any complaints brought to its attention through media exposure, anonymous letters, or in the course of other activities. The Government also indicated that according to a 1997 survey (the "Colmar Brunton Survey") the levels of awareness of minimum conditions set by government legislation among employees are the highest for the safety and health of workplaces (92 per cent) and public holidays (84 per cent), followed by annual holidays, minimum wage and sick leave (76 per cent each).

Recalling that a successful advisory function can achieve more than mere reliance upon enforcement, the Committee, nevertheless, wishes to stress again that a correct balance must be struck between the two approaches to obtain the greatest success of the inspectorate's work. Furthermore, in the context of Article 3 of the Convention the raising of levels of awareness of the existing legal provisions should be considered not as a goal by itself, but rather as one of the tools for ensuring an effective enforcement of the respective legal provisions. Since the annual report on the inspection services was not transmitted, the Committee is unable to evaluate the efficiency of the approach taken by the Government. It therefore hopes that the Government will transmit such annual report within the time limits set forth by Article 20.

6. Confidentiality of complaints. In its observations the NZCTU alleges that the manner of investigation carried out by the Labour Inspectorate continues to relate largely to individual cases and therefore frequently involves disclosure of the identity of the original complainant. The Committee notes the reply of the Government that the Labour Inspectorate seeks written confirmation of breaches to ensure complaints are being made in good faith, and the inspectorate aims to preserve the anonymity of complaints in appropriate cases, but sometimes anonymity is not possible, for example, where specific employee records are being sought or legal action is being commenced. Recalling that it is absolutely necessary for the obligation of inspectors to preserve secrecy to be established in a legal provision or, failing that, in a regulation or administrative text such as a circular, directive or instructions sent to the labour inspectors, the Committee asks the Government to indicate the respective provisions in national legislation establishing such duty and imposing penalties for its breach.

7. Power to enter the premises. In its previous comments the Committee asked the Government to provide information as to how the right of labour inspectors to enter premises or workplaces at any reasonable hour was exercised in practice. The Committee notes the Government's response that current law and practice adequately cover such eventualities and that it will provide examples for the Committee as they arise. The Committee requests the Government to provide information on any further developments in this respect.

8. Prosecution and sanctions. In its previous comments the Committee asked the Government to provide information on the cases in which action was initiated including copies of court decisions and on the results achieved in the application of safety and health provisions through the revised occupational safety and health prosecution guidelines. The Committee notes the Government's response that during the reporting period there were 35 cases initiated by the Labour Inspectorate where remedies were sought and that in nine cases penalties were imposed for a total of $17,854. As concerns the Health and Safety Inspectorate, the Government indicates that since the revised prosecution guidelines were issued in August 1997, the number of prosecutions initiated has increased from 1997 to 1999 by more than 36 per cent.

In its most recent observations the NZCTU expresses concern over the small number of prosecutions resulting in the imposition of penalties and at the lack of information from the Government about how decisions to prosecute are made. In its response to these comments the Government indicates that the emphasis of the legislation governing labour inspectors is on mediation and while prosecutions are taken in appropriate cases, the Labour Inspectorate working policy endorses the aim of the legislation. According to the Government, when a breach of the minimum code has occurred, the Labour Inspectorate's key priority is to ensure that the breach is rectified, the law is complied with, and the employees receive what they are owed as soon as possible. The Government indicates that this is generally accomplished without the need for formal legal action in the employment tribunal or employment court; however, when such action is required, penalties are sought in cases where the breach is considered serious enough to warrant this action. The Committee hopes that the Government will continue to supply information in this respect, including the statistics of violations and penalties imposed, required under Article 21, paragraph (f), of the Convention.

9. Supervision and control by a central authority: independence and stability. In its previous comments the Committee noted the information provided by the Government that the safety and health inspectorate was in the process of examining various options to increase its effectiveness, including the use of third parties to promote safety and health, and asked the Government to provide information on further developments in this matter. The Committee notes the Government's response that it has recently been decided that regulatory and enforcement services will not be contracted; that further work is being undertaken to develop specific conditions necessary for contracting services; and that contracting may be considered as an option for individual services in the future. The Committee asks the Government to continue to provide information on any further developments in this respect.

10. Notification of occupational accidents and diseases. With reference to its earlier comments regarding the concern expressed by the NZCTU on the adoption of a criterion based on length of incapacity in defining the notion of serious injury, the Committee notes the Government's decision to abandon the adoption of this criterion. It also notes that the system of notification of occupational accidents and diseases has been improved by providing employers with fuller information thereon, and by the initiation of legal proceedings against those failing to discharge their obligation of notification. The Committee would be grateful if the Government would continue to supply information on the result of these measures.