Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative stated that his Government was fully committed to the principles of Convention No. 81 and believed that it complied with the Convention in all significant respects. In New Zealand, both the Labour Inspectorate and Health and Safety Inspectorate enforced and promoted a minimum code of employment rights and obligations. However, it was important to remember that these bodies did not work in isolation. Workers, employers, and their representatives, were also able to enforce general employment terms and conditions themselves, through inexpensive, accessible, and widely used, employment institutions. The Government considered many of the Committee of Experts' concerns to be unfounded, and would make a detailed response to all requests for information when its report was presented next year.

In relation to Articles 10 and 16 on the size of inspectorates, the speaker noted that the Committee of Experts had suggested that the staff of the Labour Inspectorate was too low for the number of workplaces involved. New Zealand had over 220,000 workplaces. It did not, however, automatically follow that there were this number of employers who must be investigated for exploiting their workers. Enforcement of the minimum code of employment conditions was most effectively accomplished by a combination of pro-active enforcement: responding to complaints, and providing information ensuring workers and employers were aware of their rights and obligations.

The speaker noted that the Government believed that the first step in an efficient enforcement policy was to prevent exploitation. To this end, the Inspectorate actively distributed information through a variety of sources. A key source of this information was the Inspectorate's information centre, which opened in 1994 and dispensed employment information to approximately 150,000 callers per year; one-quarter of whom were employers. Other outlets for information included government departments, citizens advice bureaux, and employees' and employers' organizations.

While the provision of information helped prevent breaches of the minimum code, the Government was committed to the maintenance of an efficient labour inspectorate to act if breaches occurred. This commitment was demonstrated by the progressive increase in the resources allocated to the inspectorate. The size of the Inspectorate had been progressively increased to deal with demand, and was now treble what it was in 1990. This increase in the number of inspectors resulted from constant monitoring of the workload of the inspectorate and allocation of resources accordingly.

The Labour Inspectorate investigated all complaints made to it, and any possible breaches which came to its attention through media exposure, anonymous letters, or in the course of other activities. Inspectors were empowered: to enter workplaces during their operating hours, whether daytime or night-time; to interview any person on the premises; to require the production of, and to inspect and make copies of, any document relating to the remuneration, holidays, and time worked by any workers; and to question the employer about compliance with the minimum code of employment conditions. This power of entry could be used in response to a complaint, as well as at the inspector's own initiative.

The speaker noted that the Committee of Experts had also suggested that labour inspectors did not respect the confidentiality of complainants, as required under Article 15. Information provided to the inspectorates was kept confidential, wherever that was possible. The particulars of complaints to the Health and Safety Inspectorate were usually able to be kept confidential, as health safety breaches generally applied to groups of workers, and could be observed when inspectors visited workplaces. However, when complainants alleged breaches of the minimum code legislation relating to individual conditions of employment, it was often necessary to disclose some information in order to undertake enforcement action. This struck a balance between the rights of workers to privacy, and the fundamental principle of natural justice which required employers to be informed of the particulars of any allegations made against them. Individuals who made complaints to the inspectorate generally agreed to the inspectorate taking action on their behalf, with the knowledge that their details could be disclosed. A number of complaints to the inspectorate were made by the workers who had left their jobs and wished to recover holiday pay owed to them. Nevertheless, workers who were still in employment were protected from any unjustified retribution by their employer, under the personal grievance provisions of the Employment Contracts Act.

The speaker also noted that the Committee of Experts had observed that there was a lack of cooperation between the Safety and Health Inspectorate and the Accident Rehabilitation and Compensation Insurance Corporation in that the corporation refused to share information regarding accidents reported to it. In terms of the Health and Safety Inspectorate, a system of cooperative agreement did exist with other institutions in the same field. When such agencies became aware of industrial accidents or cases of occupational disease, the agreements provided for information to be passed to the inspectorate. Such an agreement had recently been finalized with the Accident Rehabilitation and Compensation Insurance Corporation.

The Government representative observed that the Committee of Experts also noted that the Government's previous report was technically incorrect in stating that the ratification of Part I of the Convention did not apply to the public sector. The Government representative acknowledged this error but noted that, in practice, the Convention was fully applied to the public sector. The Crown was required by legislation to be a "good employer" and, accordingly, there was no distinction made in most employment legislation between public and private sector workplaces. All complaints, or instances of possible non-compliance, were investigated in the same manner, no matter where they originated. Any breaches of the minimum employment conditions in a public sector workplace could be dealt with currently, at an administrative level, or by inspectors seeking a declaratory court judgment.

The speaker further noted that while New Zealand had not ratified Part II of the Convention, there were no distinctions made, in legislation or in practice, between industrial, commercial and non-commercial workplaces. As part of its consideration of the 1995 Protocol to Convention No. 81, which extended coverage to the non-commercial sector, the Government intended to further examine the national law and practice, and consider how these related to the possibility of ratifying Part II of the Convention, in the manner prescribed in section 2 of Article 25.

The speaker referred to comments made by the Committee of Experts on the presentation of annual reports on the activities of the inspectorates under Article 21, and indicated that these comments would be taken into account and reflected in the preparation of future reports.

Lastly, the Government representative reiterated his Government's commitment to the Convention, and its belief that it complied with this Convention in all meaningful and substantive ways. While there were some areas which could be improved, the Government was closely examining these areas. Any necessary improvements would be made, and the Government would report on them in more detail in its report in 1997.

The Employers' members noted that Convention No. 81 was an important Convention because of its ultimate aim of labour inspection, which was often the key to the application of other Conventions, since the facts and figures obtained by the activities of labour inspectors could be used to evaluate the situation of other Conventions.

The Employers' members noted the comments of the Committee of Experts on Articles 10 and 16, where reference was made to the ratio of the number of operational staff to the number of worksites which needed to be inspected. In this respect, they noted that the Council of Trade Unions (CTU) had complained that there were too few operational staff doing the inspection; that the overwhelming majority of operational staff inspected the traditional areas of health and safety enforcement such as factories, construction and forestry; that there was a very slow response to complaints; and that no action was taken on anonymous complaints. The Employers' members noted that the Committee of Experts would deal with these complaints and would certainly comment on them. The Employers' members referred specifically to Article 10 of the Convention, noting that it provided that the scope of labour inspection would depend on the six factors listed, such as the size of the country, the structure of the economy, or the sector, etc.; and that appropriate consideration should be given to these factors when determining the scale of inspection. Under those circumstances, the Employers' members were surprised that the comments of the Committee of Experts indicated that the number of operational staff was inadequate, without further explanation or justification. The Committee of Experts could have come up with the right number of operational staff but, wisely, they did not because there had to be latitude and some discretion left to the country to decide how many people they needed to do their labour inspection.

The Employers' members referred to the Government representative's comments that the workers and workers' representatives were also in a position to enforce their own rights. The Employers' members also recalled that there were countries where the labour inspectorate was very small and did very little work because there was a judicial system which worked very well, providing a means where people could enforce their rights. In such cases, a very large labour inspectorate, with a large staff, was not necessary.

The Employers' members referred to the question as to whether the confidentiality of complaints was respected, as required under the Convention. They noted that the source of a complaint must be kept confidential and that inspectors were not allowed to inform the employer as to who had filed a complaint. Sometimes it was possible to trace the source of a complaint and the question was whether this was unavoidable. If the labour inspectorate acted promptly, then it was almost unavoidable that the source of the complaint would be traced. The Employers' members noted that the Convention stated quite rightly and appropriately, that the inspectors may not provide the employer with any information. However, the Convention did not prescribe that it should be impossible to trace the source of a complaint.

The Employers' members noted that Article 21 dealt with the absence of annual inspection reports. They were not sure whether there were no annual inspection reports at all or whether there were simply certain parts missing in these inspection reports. They observed that the Government could be requested to provide some further information on this in their written report, as well as on Article 25. With respect to Article 25, they noted that it was a question as to whether the Convention should apply to the entire commercial sector or only part of this sector and whether there should be further ratification. However, the report of the Committee of Experts had already indicated that there was no law or administrative practice that distinguished industrial undertakings from commercial undertakings for the purposes of labour inspection.

The Employers' members noted that this case was a matter of labour legislation and that this Committee should simply wait for an exhaustive report from the Government, which the Committee of Experts would first examine very carefully at the appropriate time. It was very important, not just in New Zealand, but in all countries, that employers' associations and trade unions should keep their members informed, so that both sides, employers and workers, were always kept fully abreast of their rights and entitlements. The Employers' members were quite convinced that New Zealand was a country where this occurred, providing great assistance to labour inspection, helping to ensure that the provisions of labour legislation were actually complied with.

The Workers' members stressed the importance of this Convention for the practical application of other Conventions. They recalled that it was one of the ten Conventions which required a detailed report every two years, and insisted on the need to promote as a priority, its ratification and application. The growing importance of employment for the service sectors and the regular increase in small and medium-sized enterprises necessarily had repercussions for the functioning and organization of the inspection services. The governments should take this completely into account. Governments should evaluate regularly, in consultation with workers' and employers' organizations, labour inspection services and should adapt them continually in order to guarantee efficient and adequate inspection. Labour inspection was particularly important for workers of small and medium-sized enterprises which could not count on the presence of a trade union to supervise work conditions, payment of wages, and occupational safety and health measures. The Workers' members also commented on the following five points raised by the Committee of Experts:

1. With respect to Article 10, the Committee of Experts had noted the Government's detailed report sent to the Office, and the observations of the New Zealand Council of Trade Unions (CTU), which criticized the insufficient number of inspectors (19) who were in charge of controlling the application of work conditions in 207,000 establishments. Under these conditions, the reaction time of the inspection services was necessarily long, negatively impacting the complaints procedure. The new information centre referred to by the Government, whose mission was to improve the situation in this area, was insufficient and could not compensate the scarce number of inspectors. The Workers' members strongly supported the comments made by the Committee of Experts requesting the Government to increase rapidly, in a substantial manner, the number of inspectors and to send additional information on the reduction of the reaction time referred to by the Government, which it attributed to the efficiency of the new information centre.

2. With respect to Article 16, the insufficient number of labour inspectors could only intervene if complaints were filed. In this respect, the Workers' members supported the opinion of the Committee of Experts, noting the preventive purpose of labour inspection and that inspectors should intervene on their own initiative, especially with a view to the protection of workers in small and medium-sized enterprises.

3. With respect to Article 15(c), on the confidentiality of complaints, the Workers' members stressed that this was an essential condition to guarantee an efficient inspection system. They also considered unsatisfactory the Government's response that the complainant's anonymity was not preserved in order to conduct a complete investigation. They supported the suggestion of the Committee of Experts advocating other methods of investigation which, simultaneously, permitted a full inquiry and guaranteed confidentiality of complaints.

4. As to Article 21, the Government recognized that it did not comply with its obligation to communicate annual reports on inspection activities. This non-compliance demonstrated the insufficient number of inspection staff.

5. As to Article 25(2), the Workers' members noted that the Convention did not apply to commercial undertakings in New Zealand. They indicated that neither the law nor administrative practice distinguished between industrial and commercial undertakings. As a result, numerous enterprises, particularly in the service sector, were not subject to inspection.

Lastly, the Workers' members insisted that the Government take measures to strengthen in a significant manner the inspection system, taking into account the suggestions, observations and criticisms of the Committee of Experts. They emphasized that New Zealand had the necessary technical and financial means to bring its national legislation and practice into conformity with the requirements of this priority Convention. They also proposed, as had the Committee of Experts, that the Government seek technical assistance from the ILO in order to accelerate the process.

The Workers' member of New Zealand reiterated the importance of Convention No. 81 and expressed her appreciation for the thoroughness and care with which the Committee of Experts had examined this case. The position of the labour inspection service of New Zealand provided a very clear illustration of the compounding effects of economic restructuring, the industrial relations framework established by the Employment Contracts Act, and the Government's ideological drive to reduce the role of the State everywhere. The Employment Contracts Act, coupled with high levels of unemployment, had succeeded in significantly reducing union membership and collective bargaining and in promoting individual contracts, particularly in small workplaces which predominate in New Zealand. The Employment Contracts Act was based on the false presumption of equality between an employer and an individual employee and had created a legal framework which favoured employers. This was reflected in the health and safety legislation which favoured self-management by the individual employer, with minimal involvement from the competent authorities, workers or their organizations. In that sort of environment an effective labour inspection service was a crucially important source of protection for workers. However, the Government's determination to reduce state spending had resulted in: a modest and basically hands-off approach to health and safety inspection; a minimalist approach to general labour inspection; and enforcement which was severely hampered by lack of resources. As the Committee of Experts had observed, the Health and Safety Inspectorate lacked sufficient numbers to operate effectively; its approach was passive, reactive and complaint-based instead of active and vigorous; and it focused primarily on the traditional areas of health and safety enforcement, such as factories, construction and forestry. However, according to the 1995 Accident Compensation Corporation figures, out of a total workforce of just over 1.5 million, each week in New Zealand, on average, almost two workers were killed at work and 724 injured. These statistics represented only the tip of the iceberg, and workers continued to suffer injuries as a result of the inspectorate's tardy response to the epidemic of musculo-skeletal disorders, and reluctance to recognize psycho-social hazards associated with work organization.

With respect to the general labour inspectorate, the speaker welcomed the Committee of Experts' statement that the number of staff was too low for the number of workers involved and that the Government's inspection policy should not be limited only to responding to complaints. She urged the Committee to support the Committee of Experts' request that the Government increase the number of operative staff sufficiently so that places were inspected as often and as thoroughly as was necessary, as specifically required under the Convention, and that it provide further information in this respect. She regretted that under New Zealand legislation, the workers' rights which the inspectorate may enforce were extremely limited.

On additional matters, the speaker noted that the Government representative had not said that the Government could not stop employers finding out the identity of the source by various means themselves, but rather that the inspectors actually revealed the identity as a matter of principle, contrary to Article 15(c) of the Convention, which required confidentiality in complaints. She stated that the Government's unwillingness to extend ratification of Convention No. 81 to the commercial sector reflected its contempt for international labour standards. Furthermore, she mentioned that while the public sector employers were theoretically bound by the Health and Safety in Employment Act, real enforcement had been problematic because these employers could not be prosecuted. Lastly, the speaker urged the Committee to endorse the recommendations and requests of the Committee of Experts and to encourage the Government, with ILO technical assistance, to fully ratify and apply the Convention.

The Workers' member of Fiji stated that apparently the New Zealand Government was not meeting fully its obligations in relation to Articles 10 and 16 of Convention No. 81, as it depended too much on self-management concerning occupational safety and health. With the introduction of the Employment Contracts Act, the voice of the workers had been weakened at workplaces, due to the increase in individual contracts, and the Government therefore had an increased responsibility and required vigorous and strong supervisory machinery. However, New Zealand had more than 200,000 worksites but only some 200 health and safety inspectors and fewer than 20 general inspectors. The fact that 10,000 to 12,000 enquiries were received each month on health and safety matters was not a credit to the system but, in fact, revealed its inadequacy due to a lack of information and to confusion. This was compounded by the non-respect of confidentiality of the complaints. The current practices, observed by the Committee in respect of Article 15(c) of the Convention, needed to be improved urgently. Additionally, as regards Articles 20 and 21, the speaker considered it distressing that the Department of Labour had not provided statistics on the workplaces liable to inspection or the number of workers employed therein, or given disaggregated data on the type and number of prosecutions, convictions, and violations. Lastly, he hoped that the Government would take account of the comments of the Committee of Experts and take the appropriate remedial measures.

The Employers' member of New Zealand pointed out that the Committee of Experts appeared to have overlooked the fact that Article 15(c) of the Convention was qualified by an exception as may be made by national laws and regulations. While the Convention required that complaints be treated with absolute confidentially, this was not always possible under the New Zealand legal system which contained a very high burden of proof (beyond reasonable doubt) in cases concerning health and safety requirements, and because of the requirements of natural justice whereby an accused person was entitled to know not only the facts against him but also the complainant, and, in many cases it would simply be obvious from the facts who the complainant had been. However, the legislation contained safeguards under the personal grievance procedures for the worker in this respect. Furthermore, the Labour Department handled its duties in this area in an extremely professional manner.

Regarding Article 10, the speaker believed that the existing provisioning and operation of the inspectorate were quite adequate for the size and type of work place environment which existed in New Zealand, and that to characterize the approach of the inspectorate as passive and reactive was misleading and did not take into account its educative and information initiatives. He considered that seven months was a reasonable length of time between receipt of a complaint and the final disposal of a contested case. Lastly, he clarified that when a worker required medical treatment for an injury, there was an automatic referral to the Accident Compensation Corporation with employer confirmation, and consequently the statistical information available to the Labour Department was reliable.

The Government representative of New Zealand stated that the Government would provide a full report on the issues discussed. Concerning the issue of response time, the inspectorate's response time from receipt of a complaint to commencement of an investigation averaged ten days in five of the offices and 20 days in the sixth. Approximately 95 per cent of all cases were resolved without going to an industrial tribunal. Of the 5 per cent which did go to an industrial tribunal, 80 per cent were resolved by mediation and required about three months for disposal. The remaining cases which were adjudicated required on average seven months for disposal.

As to the reference to the need for a vigorous inspection campaign because of high unemployment in New Zealand, the unemployment rate in New Zealand was 6.2 per cent. On the reference to the rather soft and passive self-management approach taken by the occupational safety and health inspectors, the speaker stated that in the year ending 30 June 1995, the inspectors had conducted: 25,097 inspections under the high hazard and surveillance programmes; 33,166 workplace inspections; 14,953 investigations of complaints or serious accidents; 3,177 visits concerning education and information services; 2,260 visits to promote employer self-management; and, furthermore, that they had issued 38,605 notices and conducted 412 prosecutions. Lastly, he acknowledged that the department's annual report was deficient and did not comply with the requirements of Article 21 of the Convention. However, the information contemplated by Article 21 was available both generally and pursuant to the Official Information Act.

The Employers' members stated that on the question of the number of inspectorate units, they had not wanted to imply that the Committee of Experts was wrong. They stated that two numbers existed which had to be taken into consideration in making an evaluation - the number of enterprises subject to inspection and the number of inspectors. According to the Committee of Experts, the number of agents of the Labour Inspectorate was not sufficient and did not comply with the provisions of Article 10 of the Convention. Clearly, this was a question of numbers and, therefore, if the Committee of Experts had come to the conclusion that there was not an adequate number in this case, it would be sensible to indicate the major reasons for any position taken by the Committee. Otherwise, the Committee would merely be repeating what had been said in the report of the Committee of Experts, without having any idea why there were not enough agents and what constituted a clear violation of the Convention. They stated that it would be interesting to know how the Committee of Experts had arrived at their conclusion in this respect.

The Workers' members pointed out that both the Government representative and the Employers' members had focused only on the reactive function of the occupational health and safety inspectors and had not dealt at all with either the Committee of Experts' remarks concerning the proactive role also required under the Convention or the ability of the general labour inspectorates, of whom there were only 19, to enforce general employment rights. With respect to the issue of confidentiality, in most cases prosecution would require that a complainant be identified. However, prosecution was not the only course of action and was not always the preferred course and the Committee of Experts had given an example where prosecution was not necessarily required but where a confidential inspection could be used to identify and rectify a problem which affected a group within a workplace. The important point was that it was routine for the inspectorate to require the complainant to be identified rather than an exceptional measure resulting only from a prosecution.

The Committee took note of the oral information supplied by the Government representative. The Committee noted that on a number of points there were differences between national law and practice under provisions of the Convention, in particular concerning the number of inspectors, the confidentiality of complainants and the provision of annual inspection reports. The Committee underlined the great importance of this Convention and recalled that the existence of an effective labour inspection system was the best guarantee that national and international labour standards were respected not only in law but also in practice. The Committee urged the Government to provide in its next report detailed information regarding the measures taken or envisaged to apply the Convention in law and practice with respect to all of the points mentioned in the observations of the Committee of Experts, in particular those points that were discussed in the Committee. Lastly, the Committee recalled that the Government could request technical assistance from the Office which has various services to offer in respect of labour inspection.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the Government’s report, as well as the comments of the New Zealand Council of Trade Unions (NZCTU), received on 28 August 2009, and the Government’s reply received on 30 August 2009. It also notes the comments of Business New Zealand, received on 30 August 2009.

Articles 5(a) and 21(e) of the Convention. Effective cooperation between the labour inspection services and the justice system. Referring to its 2007 general observation, the Committee notes with interest that, according to the Labour Department’s policy “Keeping Work Safe”, the Department provides guidance to judges on sentencing according to its enforcement principles after a decision is taken to prosecute a case. However, as the Government has not provided any further information on measures aimed at promoting effective cooperation between the labour inspection services and the justice system, the Committee invites the Government to refer to paragraph 158 of its General Survey of 2006 and to its general observation of 2007, to take appropriate measures and to provide relevant information to the ILO.

Articles 10 and 16 of the Convention. Number of labour inspectors and inspections. The Committee notes the NZCTU’s allegations concerning the reduction in the number of inspections of workplaces in general, and particularly of random inspections, in recent years. It refers to reports to the Australasian Workplace Relations Ministers’ Council, which indicate a decrease in the number of active field inspectors in occupational health and safety from 1.2 inspectors per 10,000 employees in 2001 to 0.8 inspectors per 10,000 employees in 2004 and a decrease of inspections by health and safety inspectors from 26,405 in 1995 to less than 5,000 by 2005–06. Despite the slightly increased level of inspections since 2006, the NZCTU still considers them insufficient as an effective deterrent to violations of provisions respecting labour conditions. The Committee notes in this regard the Government’s indication that the number of health and safety inspections has increased from 5,717 in 2005–06 to 8,196 visits in 2008–09 and that the number of safety and health inspectors has increased slightly from 166 in 2004 to 172 in 2008 (156 safety and health inspectors, 12 specialist positions and four professional leadership positions). The Committee also notes that the total number of labour inspectors responsible for the enforcement of general conditions of work is only 33, of whom five are assigned to the Recognized Seasonal Employer (RSE) scheme, which targets the horticulture/viticulture sector. The Committee requests the Government to take appropriate measures in the near future to ensure that the number of labour inspectors (general labour inspectors and safety and health labour inspectors) is sufficient for the effective enforcement of laws and regulations respecting labour conditions in industrial and commercial workplaces liable to inspection.

Articles 3, paragraphs 1 and 2, 5, paragraph 1, 6, 12, 15(c) and 17. Additional duties entrusted to labour inspectors. Mobilization of resources and incompatibility in the light of the objectives pursued. The Government’s reply to a comment by the NZCTU indicates that labour inspectors and immigration officers carry out joint inspections. According to the Government, this is the case in the RSE programme, as well as in so-called crisis situations under the Decent Work Taskforce. The Government indicates that other areas for such cooperation are under consideration. The Committee refers in this regard to paragraphs 75 to 78 and 161 of its General Survey of 2006 on labour inspection in which where it recalls that the principal function of labour inspection is not to enforce immigration law and that, given that the human and other resources available to inspection services are not unlimited, the volume of inspection activities devoted to conditions of work is likely to be diminished in relation to those concerning the legal status of workers under immigration law. It also emphasized that neither Convention No. 81 nor the Labour Inspection (Agriculture) Convention, 1969 (No. 129), contain provisions suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. The Committee further emphasized that, to be compatible with the objective of labour inspection, the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all workers. It therefore advocated caution in any collaboration between the labour inspectorate and the immigration authorities, since such objective can only be met if workers are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers. To ensure effective and efficient collaboration by all workers with labour inspectors, foreign nationals residing illegally in the country, who are among those who presumably suffer most from abusive conditions of work, should not fear the double penalty of losing their jobs and being expelled. The Committee therefore urges the Government to take measures to ensure that the powers of inspectors to enter workplaces liable to inspection are not misused for the implementation of joint operations to combat illegal immigration. It requests the Government to take measures to promote collaboration by the services responsible for combating illegal immigration with the labour inspection services, in such a manner that these services notify the labour inspectorate of cases of illegal immigrants apprehended outside a workplace who are engaged in a labour relationship covered by the Convention. Labour inspectors should accordingly be in a position to ensure their protection in accordance with the powers conferred upon them under the terms of the Convention and national labour legislation.

Articles 17 and 21(e). Consistency of decision-making by labour inspectors. Development of a coherent prosecution policy and statistics on enforcement actions. The Committee notes with interest that the Labour Department has completed a range of work to improve the consistency and transparency of enforcement (of health and safety legislation in particular). In this regard, it notes that the prosecution panel which was set up as a means of learning about consistency in decision-making and enforcement processes has completed its evaluation and a Labour Department enforcement policy, “Keeping Work Safe” (which can be accessed through the link: http://www.dol.govt.nz/publications/
research/keeping-work-safe/index.asp), has been developed and was officially released in 2009 following public consultation in 2008. The policy explains the various enforcement tools available to the Department and provides specific guidance relating to enforcement. The policy is supported by the development of internal policy guidelines and various improvements in practice to assist staff in its application. The Committee welcomes the fact that the government policy provides for the publishing of details of cases where this is considered appropriate, which might have a dissuasive effect, and it asks the Government to provide details of cases in which the labour inspectorate has made use of this possibility.

Noting that the Labour Department adheres to the principle of the use of the minimum enforcement necessary, it requests the Government to ensure that, with a view to the credibility of the labour inspectorate and as requested by the NZCTU, labour inspectors do not fail to apply sanctions where appropriate with a view to ensuring that the system is dissuasive in practice.

Noting that, based on the evaluation of the prosecution panel, it is envisaged to develop new methods to improve the consistency of decision-making and investigation practice, the Committee asks the Government to keep the ILO informed in this regard and to provide copies of any relevant documents.

Articles 20 and 21. Publication and content of the annual inspection report. The Committee notes that the annual report of the Labour Department (available on the government web site at www.dol.govt.nz) does not contain all the statistics needed by the Committee to make an evaluation of the operation of the labour inspection system. The Government is requested to ensure that an annual inspection report in accordance with the requirements of Article 21 is published and made available to the ILO.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s detailed report, the comments of Business New Zealand and of the New Zealand Council of Trade Unions (NZCTU), according to which the reorganization of the Department of Labour has had positive effects, notably by facilitating access to information and advice on labour legislation, but nevertheless raise a number of points, in particular with regard to high-risk industries.

Articles 3, 13, 16, 17 and 18 of the Convention. Prevention and monitoring activities of labour inspectors, in particular with regard to occupational safety and health. According to the NZCTU, some of its affiliates in high-risk industries have condemned the lack of responsiveness of the inspection services in charge of occupational health and safety and, in particular, their failure to respond to accident complaints in some regions and to requests for inspections. In this sector, less monitoring activities have been performed by inspectors since the recent restructuring of the inspection services and staffing changes therein. In fact, it appears that the most experienced health and safety inspectors were not kept in their posts. While stating that it is aware of the apparently transitory nature of these difficulties, the organization is nevertheless concerned about this loss of expertise and the reduction in monitoring activities, notably during the period in which new inspectors are being trained. It also fears that by putting more and more emphasis on the responsibility of the enterprise, the inspection services are abandoning, to a certain extent, their powers to monitor the compliance with labour legislation. According to the NZCTU, while a good relationship should be maintained with employers in order to ensure improvements in the work environment, the strong enforcement of occupational safety and health standards is also essential.

In its comments attached to the Government’s report, Business New Zealand refers to a certain degree of inconsistency in the decisions taken by labour inspectors upon observing a compliance failure, with some inspectors providing advice on remedying the matter, while others immediately impose a penalty. According to this organization, more emphasis should be placed on information than on punishment. In its report, the Government states that when visiting workplaces, inspectors are free to decide whether to impose a penalty or not, and that they take into account various factors such as the nature and the magnitude of the violation and whether there was any intent involved in causing it. However, to help avoid inconsistencies in labour inspector decision-making, it states that a strategic approach to health and safety prosecutions is currently being developed.

The Committee also notes with interest that, in response to the concerns of the NZCTU and to the increased demand for occupational safety and health services, additional funding has been allocated to the Department of Labour, notably to reinforce field inspection capacity and to provide information services. The Department of Labour has also undertaken to identify vulnerable workers and focus its efforts on targeted visits.

The Committee believes that the technical information and advice provided to employers and workers can only favour compliance with the legal provisions relating to conditions of work. The credibility of any inspection service depends, to a large extent, on its ability to advise employers and workers on the best way in which to apply the relevant legal provisions, but it also depends on its ability to apply effectively a sufficiently dissuasive system of penalties. Violations of relevant legal provisions or blatant disregard for the recommendations or compliance orders issued by labour inspectors can thus be dealt with by inspectors with the appropriate level of severity. It is important, however, to ensure that this power of labour inspectors to avoid the application of penalties is not used in a manner in which it was not initially intended. The Committee asks the Government to ensure that the prevention and advising activities performed by labour inspectors and directed at workers and employers, particularly in the field of occupational health and safety, are supplemented, in all cases where this is necessary in order to obtain compliance with the applicable legal provisions and the measures ordered by the labour inspector, by the imposition of penalties or the institution of legal proceedings.

Noting that the Government has also set up a panel to examine inspection decisions relating to enforcement action, the Committee requests the Government to provide in its next report information on the strategy adopted and the measures established for its implementation and their impact.

Article 10. Number of labour inspectors. The Committee notes with interest that six new posts have been created for labour inspectors within the framework of the Recognized Seasonal Employer Policy (RSE). It notes that these inspectors will be responsible for monitoring not only general conditions of work, but also health and safety conditions. According to the Government, this new approach reflects a longer term objective to have the labour and the health and safety inspectorates operate more collaboratively. The Committee would be grateful if the Government would communicate information on any progress made in this respect.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the detailed information provided in response to its previous requests, in particular in connection with the points raised by Business New Zealand. It also notes the information provided in response to the points raised by the New Zealand Council of Trade Unions (NZCTU) in a new observation sent with the report, and the legislation adopted during the period covered. The Committee notes with satisfaction the constructive dialogue established between the Government and the employers’ and workers’ organizations during the preparation of the Government’s reports on the application of the Convention.

1. Duality of the inspection system and differentiated approach for the development of a single preventive culture. The Government and the NZCTU believe that the new distribution of responsibilities and inspection activities between, on the one hand, occupational safety and health inspectors and, on the other, labour inspectors, has allowed for effective collaboration in working towards the common objective of prevention. The Committee notes, however, that, according to the NZCTU, there are still some inconsistencies in the respective approaches of both services to complaints, due, in part, to the different legislation being enforced. Therefore, complaints relating to health and safety give rise to proceedings and penalties, even when they are anonymous and made by the public, as is the case with complaints regarding building sites and large retail outlets. Labour inspectors, however, do not respond to anonymous complaints. They only examine wage and time records following complaints from workers, which are most often made when an employee is at the point of leaving his job. Moreover, they only very rarely prosecute offending employers, their priority being to seek recovery of underpayment of wages. According to the NZCTU, these complaints generally concern violations of provisions relating to changes to the minimum wage, and small and medium-sized enterprises should be provided with information, in simple language, on the application of these provisions during proactive visits, so as to prevent such situations arising. The Committee notes with satisfaction that this situation is in the process of being rectified, since, as indicated by the Government, in accordance with Article 3, paragraph 1(b), of the Convention, labour inspectors are invested, by virtue of new legislative texts on general conditions of work, with the duty to supply technical information and advice to employers and workers, and that, according to the Holidays Act of 2003, labour inspectors are also authorized to bring an action for a penalty against an employer for breaches of the Act and to recover arrears of pay on an employee’s behalf. The Committee notes the point of view expressed by the NZCTU on the need to take measures of a budgetary nature with a view to reinforcing the number of labour inspection staff, given the extra work resulting from the abundance of new legislative provisions. The Government, for its part, acknowledges that the reduction in proactive inspections is a reality and largely attributed to prolonged vacancies within the Labour Inspectorate. It indicates that inspections of general working conditions are only carried out in response to complaints or in establishments known for their failure to comply with the minimum standards, but that seminars are conducted to promote decent working conditions. The Committee would be grateful if the Government would provide, in its next report, information on any measures taken to reinforce the number of staff of the Labour Inspectorate, with a view to increasing the proactive visits aimed at instilling in the social partners a culture of respect for the relevant legislation, so as to prevent, insofar as is possible, situations that are detrimental to workers.

2. Article 3, paragraph 1, and Articles 7, 9, 13, 14, 16, 17 and 18. Preventive functions of the Labour Inspectorate in respect of safety and health. Whilst welcoming the proposal made by the National Occupational Health and Safety Advisory Committee (NOHSAC) that there should be a single agency to take full responsibility for the entire range of occupational health and safety issues, the NZCTU fears that, if the emphasis is put on the issue of illnesses of occupational origin, this could have the effect of minimizing activities to prevent occupational injury. The NZCTU recognizes, however, that the issue of action on occupational illnesses linked to exposure to chemical substances is of particular importance to workers engaged in manufacturing and transport industries. The Committee is pleased to note that a conference on occupational illnesses was hosted by the Employers and Manufacturers Association (EMA) in 2005, which illustrates the importance that employers are giving to this issue. According to the NZCTU, government agencies, including health and safety inspectors, should show greater awareness of the causes of occupational diseases and take the necessary measures to minimize the risks to workers. In this regard, the Committee notes with interest the measures taken by the Government, in response to the NZCTU’s request, to reinforce the capacity of occupational health and safety inspectors and to allow them to take recourse to the necessary technical and legal assistance for the assessment and appropriate treatment of situations in which there are chemical risks and risks of occupational illness. The Committee requests the Government to continue providing any information which will enable it to assess developments in respect of the level of application of the relevant Articles of the Convention.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s detailed report, which contains replies to its previous comments and the observations made by Business New Zealand (NZ New Zealand) and by the New Zealand Council of Trade Unions (NZCTU) concerning the application of the Convention, annexed thereto. The Committee also notes new observations from NZCTU received together with the Government’s reply on 17 November 2003. Noting that the Government did not fully reply to the points raised by Business NZ, and that it intended to provide further information related to the new point raised by NZCTU, the Committee would be grateful if the Government would supply any necessary information so as to allow it to examine the whole.

The Committee notes with interest the Government’s indication that since the last report the Labour Inspectorate has been placing more resources into proactive inspections and will continue to do so in the future (Article 16).

With reference to its previous comments, the Committee would be grateful if the Government would send a copy of the Crown Organizations (Criminal Liability) Act 2002 which, according to the information provided in the report, allows for the prosecution of crown organizations under the Health and Safety Employment Act 1992 (Article 17, paragraph 1, of the Convention).

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It also notes the comments of Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) and the Government’s response to these comments. 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. With reference to its previous comments, the Committee notes with interest the information in the Government’s report that the Crown Organizations (Criminal Liability) Bill 2001 is currently before Parliament, which allows for the prosecution of Crown Organizations under the Health and Safety in Employment Act. It also notes the comments of the NZCTU that despite its support to the object of the Bill, the NZCTU has made a submission to Parliament in terms that the Bill be amended to extend liability to include, at least, state sector chief executives. The Committee asks the Government to provide in its next report information on the progress made in this respect (Articles 1(2) and 17(1) of the Convention).

Extension to commercial undertakings. In its previous comments, the Committee asked the Government to supply information on the development relating to the possibility of ratifying Part II of the Convention. It notes the Government’s indication that the new Government has not yet had the opportunity to consider this issue. The Committee hopes that the Government will continue to supply information on any developments in this regard (Article 25, paragraph 2).

2. Regular versus complaint-based procedures. Referring to its previous comments concerning the NZCTU’s observation related to the Government’s supposed "hands-off policy" in the enforcement of employment right, the Committee recalls that it had stressed that a correct balance between regular versus complaint-based procedures must be struck to obtain the greatest success of the inspectorate’s work. The Committee notes the Government’s indication that in addition to complaint-based enforcement, regular active promotion and enforcement of the minimum code is also undertaken within reasonable resources on a weekly basis in industries. The Committee also takes note of comments made on this respect by the NZCTU and Business New Zealand. The NZCTU acknowledges the more active approach to minimum code compliance since the last report, while Business New Zealand indicates that the employer obligations and employee rights were not less enforced under the previous regime than they are under the regime currently applying.

Since the Government’s periodic report and subsequent annual reports for 2000 and 2001 contain no information on the statistics of regular or proactive workplace visits by the Labour Directorate; the number of workplaces liable to inspection; and the number of workers employed therein, the Committee is not in a position to evaluate those comments from the abovementioned organizations, nor to determine whether the balance between complaint-based versus routine inspection is struck and whether frequency of inspection visits is sufficient to ensure the effective application of the minimum employment codes. It therefore requests once again the Government to provide necessary information in its next report (Articles 10, 16 and 21 of the Convention).

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.

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

The Committee notes the Government's report. It also notes the observations by the New Zealand Employers' Federation (NZEF), those by the New Zealand Council of Trade Unions (NZCTU), and the Government's response to these observations. The observations of the NZEF relate to the activities of the Federation aimed at accident prevention and awareness-raising of employees on their rights under the New Zealand statutory minimum code. The NZCTU in its observations alleges, inter alia, that the number of labour inspectors remains inadequate; that the enforcement activities are reactive and insufficient to ensure that the rights provided for in the legislation are actually applied; that the manner in which investigations are carried out by the labour inspectorate frequently involves disclosure of the identity of the complainant; and that the number of prosecutions resulting in the imposition of penalties is small.

Taking into consideration also certain points raised in its previous comments, the Committee is addressing a direct request to the Government on the following matters: scope of the national system of labour inspection (public sector undertakings and extension to commercial undertakings); adequacy of the number of inspectors; regular versus complaint-based procedures; confidentiality of complaints; free entry of inspectors to premises; prosecution and sanctions; supervision and control by a central authority; and notification of occupational accidents and diseases.

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

Further to its observation under the Convention the Committee requests the Government to send to the ILO a copy of the 1995-96 Annual Labour Inspection Report, which the Government indicated as annexed to its report, but which was not received by the Office.

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).

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's detailed report for the period ending June 1995 and the enclosed extensive comments made by the New Zealand Council of Trade Unions (CTU) as well as the Government's reply to these comments. The Committee would be grateful if the Government would provide additional information on the points raised below.

Articles 1, 2 and 3, paragraph 1(a) and (c), of the Convention. The Committee notes the comments of the CTU which indicates that existing legislation that is enforced by the Inspectorate, far from being a comprehensive set of protections is scattered, fragmented, obsolete, poorly drafted and riddled with ambiguities or obscurity and that the effective application of the legislation is undermined. The CTU states that key elements of the legal provisions cited by the Government in its report as enforceable by the labour inspectorate are not enforced in the public sector or not at all. The Committee notes the Government's reply that the issue of the nature of the legislation enforced by the Labour Inspectorate is outside the scope of Convention No. 81, and as its ratification of this Convention extends only to Part I (Industry) it considers the Convention to be not applicable to the public sector.

The Committee acknowledges that New Zealand's ratification of Convention No. 81 excluded Part II on Labour inspection in commerce but that Articles 1 and 2 of the Convention require the maintenance of a system of labour inspection in industrial workplaces. It would therefore be grateful if the Government would indicate whether the Convention is fully applied to existing public sector industrial undertakings, and if not to provide information on the measures taken or envisaged to extend the scope of the system of labour inspection to this sector as provided for by the Convention. The Committee would also be grateful if the Government would provide additional information on whether both the safety and health and the general labour inspectorates still have the function of bringing to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions, and whether they carry out in practice such a function.

Article 3, paragraph 1(b), and Article 5(b). The Committee notes the CTU's comments that the Health and Safety Inspectorate does not produce and widely distribute a coherent and comprehensive body of information on the best means of compliance with the legal provisions. While the CTU acknowledges that there was a degree of informal and somewhat sporadic interaction on health and safety matters, no formal arrangements existed for collaboration between the inspectorates and employers, workers and their organizations. The Government's report indicates that despite the absence of formal arrangements it was government policy to consult the affected parties, workers, employers, or their organizations and that frequent liaison was maintained both at the national and at the local levels with these organizations. In its reply to the CTU 's comments the Government in addition states that the Information Centre currently answers approximately 10,000 to 12,000 telephone inquiries per month, ensuring employees and employers ready access to information about their statutory employment rights and updated and comprehensive information pamphlets are widely made available from various sources.

The Committee would be grateful if the Government would provide further information regarding the balance struck between advisory and supervisory functions of the inspectorates and on the steps taken to promote collaboration with employers and workers or their organizations in respect of priority setting and on the choice of the most effective approaches to these matters.

Article 5(a) and Article 14. The Committee notes that according to the CTU there is a lack of cooperation between the Inspectorate and the Accident Rehabilitation and Compensation Insurance Corporation (ARCIC) in that the ARCIC refuses to share information in its possession resulting in very significant disparity in accident statistics. The CTU considers that employers are clearly under-reporting accidents to the Inspectorate and this lack of cooperation is creating a significant obstacle to the effective enforcement of health and safety legislation.

The Committee hopes the Government will provide full particulars regarding the measures taken or envisaged to promote effective cooperation between the inspection services and other government services and public or private institutions engaged in similar activities. The Committee also hopes the Government will provide full particulars regarding the measures taken to give effect to the requirements of Article 14 of the Convention that the labour inspectorate be notified of industrial accidents and cases of occupational disease.

Articles 10 and 16. The CTU considers that 224 operational staff in the Health and Safety Inspectorate for 207,000 worksites was too small to adequately deliver an appropriate degree of oversight. It also considers that the composition of the operational staff was heavily weighted towards the traditional areas of health and safety enforcement such as in factories, construction and forestry and that there are only 19 operational staff in the general inspectorate for the enforcement of the bulk of the legal provisions on general conditions of work. The CTU is of the view that the Inspectorate has adopted a passive, reactive, complaint-based approach to enforcement instead of an active and vigorous one. It further states that the Inspectorate requires a specific complaint to be made by an identified complainant and does not act on anonymous information. Moreover the CTU considers the most rapid reaction time by the Inspectorate to such complaints was one month and that others had to wait up to seven months. The Government replies that it does not refuse to act on anonymous complaints but that it requires a reasonable amount of information in order to begin an investigation. The Government considers the situation for 1995 has considerably improved in that the average waiting time ranged from being immediate to two months.

The Committee considers that, even with the additional support of the newly set up Information Centre, the number of staff of the general labour inspectorate (19) is too low for the number of worksites involved (207,000) and that the Government's inspection policy should not be limited to responding to complaints only. The Committee requests the Government to take appropriate measures to increase the number of the operative staff sufficiently to ensure that workplaces are inspected as often and as thoroughly as is necessary. The Committee requests the Government to furnish additional information on any improvements made in the reaction time of the Inspectorate to complaints.

Article 12, paragraph 1(a). The Committee notes from the Government's report that section 144(1)(a) of the Employment Contracts Act 1991 and sections 31(1) and 35 of the Health and Safety in Employment Act 1992 provide only for inspectors or departmental medical practitioners who act as inspectors, to enter, at any reasonable hour, any premise or place of work (under section 144(1)(a) other than a dwelling-house where any person is employed or where the inspector has a reasonable cause to believe that a person is employed) at any reasonable hour.

The Committee wishes to point out that paragraph 1(a) of Article 12 of this Convention requires that inspectors should be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. The Committee draws the Government's attention to the importance it attaches to the recognition of the power of inspectors to enter establishments that are liable to inspection at any hour of the day or night. The Committee hopes the Government will provide information on how full effect is given to the requirements of the Convention in this regard.

Article 15(c). The Committee notes the CTU's comments that the confidentiality of the source of any complaint is not respected when an inspector only acts on a specific written complaint made by an identified complainant concerning breaches in respect of identified individuals. In most cases the CTU maintains the complainant and the individual are the same person. Except for the health and safety area, employers become immediately aware that the inspector's visit is in response to a complaint and that the identity of the complainant is almost always immediately apparent. The Government replies that the Inspectorate preserves the confidentiality of the complainant where possible, but that it cannot conduct an entire investigation without identifying the client. It gives the example of the impossibility of recovering holiday pay due to an individual without that individual's name being used.

The Committee draws the Government's attention to existing alternative means of investigations by generalizing the inquiry and examination of the undertakings' records to permit dealing with not only the complaint but also to possibly uncovering similar others cases. The Government is requested to furnish full particulars on any improvements made in this respect.

Article 17, paragraph 1. The Committee notes from the CTU's comments and the Government's reply that Crown agencies were not liable to prompt legal proceedings for violations of legal provisions. As mentioned in the Committee's comments under Articles 1, 2 and 3, paragraph 1(a) and (c), above, contrary to the Government's position the Convention applies to the public sector. The Committee requests the Government to take the necessary measures to give effect to this Article of the Convention.

Article 21. The Committee notes from the CTU's comments and the Government's acknowledgement that there was a lack of compliance with the requirements of this Article. The Committee hopes the Government will in the future communicate annual inspection reports containing all the particulars listed by this Article, in particular statistics of workplaces liable to inspection and the number of workers employed therein (Article 21(c)), statistics of violations and penalties imposed (Article 21(e)), statistics of industrial accidents (Article 21(f)), and statistics of occupational diseases (Article 21(g)).

Article 25, paragraph 2. The Committee notes from the comments of the CTU that in New Zealand there is no law or administrative practice that distinguishes between industrial and commercial undertakings for purposes of labour inspection and that it considers it timely for the Government to consider extending the application of the Convention to commercial undertakings as envisaged by this Article of the Convention. The Committee would be grateful if the Government would provide information in this regard.

The Committee points out that various services are available from the Office on labour inspection matters and in particular the provision of advice and information on relevant comparative experiences and solutions regarding questions raised in this observation.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Articles 14 and 21(g) of the Convention. The Committee notes from the Government's reply to its previous comments that an exercise is under way to develop a comprehensive database which will allow the Occupational Safety and Health Service of the Labour Department to develop a better understanding of the distribution of work-related accidents and occupational diseases by industry, process and operation and to provide information permitting the fulfilment of the requirements of these provisions of the Convention.

The Committee requests the Government to provide information on any developments resulting from this exercise.