Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s detailed report. It also notes the comments made by the New Zealand Council of Trade Unions (NZCTU) and the Government’s response thereto.

Article 3(d) and Article 4, paragraph 1, of the Convention. Hazardous work. The Committee had previously noted that, by virtue of section 54(d) of the Health and Safety in Employment Regulations of 1995 (HSE Regulations), “every employer shall take all practicable steps to ensure that no employee under the age of 15 works in any area at a place of work under the control of that employer ... at any time when any work is being carried out in that area that is likely to cause harm to the health and safety of a person under the age of 15 years”. It had observed that the prohibition did not extend to children under 18 years of age. The Committee had also noted the Government’s statement that the HSE Act addresses the health and safety of young persons over 15 years of age through a combination of duties imposed on the employer, including various requirements of training and supervision. It had further noted the Government’s indication that it intended to review the HSE Regulations in order to prohibit hazardous work for employees aged under 16 years of age (raising the prohibition from 15 years).

The Committee notes the NZCTU’s allegation that statistics on work-related injuries indicated that, in 2006, about 300 children under 15 years visited their local doctor for a work-related injury. Moreover, in the same year, accident compensation entitlements and rehabilitation assistance were provided to about ten children under the age of 9; 15 children between the ages of 10 and 14, and between 1,000–2,000 children between the ages of 15 and 19. According to the NZCTU, the common location of such fatalities is farm work. The NZCTU further contends that there is also widespread under-reporting of accident compensation claims and workplace accidents.

The Committee notes that, while the Government shares the concerns raised by the NZCTU with regard to the workplace injuries of children and young persons, which in some cases prove fatal, it believes that the existing legislative protections generally ensure that young people are not exposed to hazardous work. The Committee notes the Government’s statement that it is aware of the under-reporting of accident claims and workplace injuries. It nevertheless considers that several activities are in place to raise young people’s awareness of workplace health and safety and their rights at the workplace, such as the “Grim Harvest” campaign which alerts workers including young persons about seasonal fatalities during work on farms, and the Children’s Employment Work Programme. The Committee also notes the Government’s statement that, during the period from 2007 to 2009, it has analysed young people’s work patterns, where they sustain work-related harms and at what age young people mature physically and psychologically, in order to understand age as a risk factor. The Committee finally notes the Government’s indication that it has decided not to review the HSE Regulations in order to prohibit hazardous work for young employees, but to seek non-regulatory options for the protection of young people under the age of 16 years from hazardous work through developing practice guidelines and information. The Committee further notes the Government’s information on the prosecutions in 2007 and 2008 related to workplace injuries sustained by a 14-year-old child with partial amputation of three fingers on a snip saw; death of a 12-year-old who fell from a truck; and a 17-year-old who had his fingers and wrist crushed by a pastry machine. 

Finally, the Committee notes the Government’s statement that employees under 15 years of age are prohibited from working in a number of high-hazard workplaces such as construction, logging and tree-felling operations, work where goods are being manufactured and prepared for sale, working with any machinery, lifting heavy loads or performing other tasks likely to be injurious to the employee’s health, night work (prohibited for children under 16 years) and driving or riding any tractor or heavy vehicles (sections 54–58 of the HSE Regulations).

The Committee must express its serious concern over the fact that children between 15 and 18 years of age are allowed, in law and in practice, to perform the abovementioned types of work which are clearly hazardous, as acknowledged by the Government itself. It also expresses its serious concern at the number of injuries and fatalities, including death suffered by children under 18 years working in hazardous types of work as underlined by the NZCTU and not contested by the Government. The Committee, therefore, emphasizes that, by virtue of Article 3(d), work which, by its nature and the circumstances in which it is carried out, is likely to harm the health, safety or morals of children, constitutes one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. It reminds the Government that, while determining the types of work referred to under Article 3(d) of the Convention, in accordance with Article 4(1), the relevant international standards shall be taken into consideration, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), which enumerates activities to which the Government should give special consideration when determining types of hazardous work. It also recalls that Paragraph 4 of Recommendation No. 190 addresses the possibility of authorizing the employment or work of young persons as from the age of 16 under strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. Considering the significant number of injuries and fatalities suffered by children, it would appear that the conditions of protection and prior training, as set out in Paragraph 4 of Recommendation No. 190, are not fully met in all circumstances. The Committee accordingly urges the Government to take immediate and effective measures to comply with Article 1 of the Convention, read with Article 3(d), to prohibit children under 18 years of age from engaging in hazardous and dangerous work. However, where such work is performed by young persons between 16 and 18 years of age, the Committee urges the Government to take the necessary measures to ensure that such work is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that the health and safety of such young persons be protected and that they receive adequate specific instruction or vocational training in that activity. The Committee requests the Government to provide information on the progress made in this regard.

Self-employed children. The Committee had previously noted that the HSE Regulations, which contain provisions for the employment of children in hazardous occupations, only apply to a “place of work under the control of that employer” (section 54). It had also noted the Government’s statement that the Minors Contracts Act of 1969 provides protection for minors (persons under the age of 18) entering a contract for service (self-employment). The Committee had noted the comments made by the NZCTU in 2007 that the Government’s action was long overdue on introducing an amendment to the HSE Regulations to extend their coverage to child workers who are contractors rather than employees. Noting the Government’s information that the Department of Labour would review the HSE Regulations in order to extend such Regulations to children working as independent contractors as well as self-employed children under 16 years of age, the Committee had hoped that the HSE Regulations would soon be reviewed in order to cover young self-employed persons.

The Committee notes the Government’s statement that the provisions restricting the employment of children in hazardous work (15 years) and night work (16 years) under the HSE Regulations have been amended in order to cover self-employed children working as independent contractors (sections 58A–58F of the Health and Safety in Employment Amendment Regulations of 2008). The Committee once again urges the Government to take immediate and effective measures to comply with Article 1 of the Convention, read with Article 3(d), to ensure that self-employed workers under the age of 18 years are protected from hazardous work. However, where such work is performed by young persons between 16 and 18 years of age, the Committee urges the Government to ensure that self-employed persons under 18 years of age enjoy the protection afforded by Paragraph 4 of Recommendation No. 190. It requests the Government to provide information on progress made in this regard. The Committee further requests the Government to provide a copy of sections 58A–58F of the Health and Safety in Employment Amendment Regulations of 2008.

Article 5. Monitoring mechanisms. Occupational safety and health service. In its previous comments, the Committee had noted the Government’s information that the Department of Labour (DoL) intended to begin investigating workplace practices relating to persons between 16 and 18 years of age engaged in hazardous work. In this regard, it had also noted the NZCTU’s recommendation, in its communication of 2007, that input be sought from experts in child and youth development in order to assess the physical and psychological limits of young persons in relation to hazardous work. The Committee notes the Government’s statement that, from March to May 2008, the DoL introduced certain communication methods to reinforce the application of the HSE Regulations under a “Know your Rights” theme. This included preparing a factsheet using a comic/graphic style, and running a radio song competition aimed at promoting the health and safety of young persons at work. The Government further states that the DoL is continuing to investigate workplace practices relating to persons between 16 and 18 years of age engaged in hazardous work which forms part of the review of the age threshold on hazardous work and their physical and psychological limits in relation to such work. Noting that children of 15 years and above are allowed to perform hazardous work, the Committee requests the Government to provide information on the results of the investigations carried out by the Department of Labour on workplace practices related to persons between 15 and 18 years engaged in hazardous work.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the NZCTU’s allegation that the 2009 Youth in the Labour Market Report does not include children aged less than 15 years of age, in spite of New Zealand having no minimum age for work, nor does it provide disaggregated information on a year-by-year basis for young people under 18 years of age. It notes the Government’s response that the Youth in the Labour Market Report is primarily based on the data from Statistics on New Zealand’s Household Labour Force Survey, which only collects information on persons of 15 years and above. Moreover, disaggregated information of young people between 15 and 18 was not included as the majority of stakeholders did not require it. The Committee further notes the Government’s indication that, during the period 2007–08, there were three prosecutions under the HSE Act and HSE Regulations regarding injuries sustained by young persons under 18 years at the place of employment. The Committee expresses its regret at the insufficient data on working children and young persons and it strongly urges the Government to take the necessary measures to ensure that sufficient data on the situation of working children in New Zealand, including children under 15 years of age is available. It requests the Government to supply statistics on the employment of children and young persons and extracts from the reports of inspection services as soon as this information becomes available. To the extent possible, all information provided should be disaggregated by age and sex.

The Committee is raising other points in a request addressed directly to the Government.