Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the Government’s report. It also notes the comments of the New Zealand Council of Trade Unions (NZCTU) received with the Government’s report. It requests the Government to provide information on the following points.

Article 3, clause (d), of the Convention and Article 4, paragraph 1. 1. Hazardous work. The Committee had previously noted that, by virtue of section 54(d) of the Health and Safety in Employment Regulations of 1995 (HSE Regulations), “every employer shall take all practicable steps to ensure that no employee under the age of 15 works in any area at a place of work under the control of that employer […] at any time when any work is being carried out in that area that is likely to cause harm to the health and safety of a person under the age of 15 years”. It had noted that the prohibition did not extend to children under 18 years of age.

The Committee notes the NZCTU’s statement that employment of young persons places an obligation on the employer to ensure the health and safety of employees. In this regard, the NZCTU affirms that it is satisfied that Government programmes on workplace health and safety are generally improving the awareness and responsiveness of employers to their responsibilities. Finally, the NZCTU states that it endorses the proposal that the Government review the HSE Regulations in order to further define the categories of work deemed hazardous and increase the restriction on such work.

The Committee notes the Government’s information that children under 18 years cannot work in any restricted area of licensed premises, such as bars, licensed restaurants or clubs. It also notes that section 26 of the Maritime Transport Act of 1994 prohibits the employment of a person under 18 years of age as a trimmer or fireman on steamships.

It further notes the Government’s indication that the types of hazardous work described in Paragraph 3 of Recommendation No. 190 are covered by the HSE Regulations, but only to those aged under 15 or 16 years. It notes the Government’s information that, employees under 15 years are not allowed to work in a number of sectors considered hazardous such as construction, logging and tree-felling operations, work where goods are being manufactured and prepared for sale, working with any machinery, lifting any weight or performing other tasks likely to be injurious to the employee’s health, working during the night (prohibited for children under 16 years), driving or riding any tractor or any vehicle (sections 54–58 of the HSE Regulations). The Committee also notes the Government’s information under Convention No. 59 that, while mines and quarrying are not specified as prohibited work, the combined effect of the HSE Regulations prohibits a young person from working or being present in a mine or a quarry. The Committee notes the Government’s information that the HSE Act addresses the health and safety of young persons over 15 years of age through a combination of duties imposed on the employer, including various requirements of training and supervision.

The Committee notes the Government’s information that it intends to review the HSE Regulations in order to prohibit hazardous work for employees aged under 16 years (raising the prohibition from 15 years). The Committee hopes that the HSE Regulations will soon be reviewed in order to ensure conformity with Article 3, clause (d), of the Convention, read in conjunction with Paragraph 4 of Worst Forms of Child Labour Recommendation, 1999 (No. 190), and requests the Government to provide information on any developments in this regard.

2. Self-employed children. The Committee had previously noted that the HSE Regulations, which contain provisions for the employment of children in hazardous occupations, only apply to a “place of work under the control of that employer” (section 54). It had also noted the Government’s information that the Minors Contracts Act of 1969 provides protection for minors (persons under the age of 18) entering a contract for service (self-employment). The Committee had requested the Government to provide information on any steps taken or envisaged to prohibit self-employed children from performing hazardous work.

The Committee notes the NZCTU’s statement that the Government’s action is overdue on introducing an amendment to the HSE Regulations to extend their coverage to child workers who are contractors rather than employees. The NZCTU adds that the New Zealand “Work Programme on Implementation of UNCROC 2004-2008” states that an amendment would be made to the HSE Regulations to give child contractors the rights to protection as child employees. This amendment was expected to be in place by June 2005. It was then reported that the proposed amendment would be included in a larger review of the Regulations. However, to date, progress with that review has not resulted in any change to the legal protections for child contractors.

The Committee notes the Government’s information that the Department of Labour will review the HSE Regulations in order to extend such Regulations to children working as independent contractors as well as self-employed children under 16 years of age. The Committee hopes the HSE Regulations will be soon reviewed in order to cover young self-employed persons. It requests the Government to provide information on any development in this regard.

Article 5. Monitoring mechanisms. 1. Occupational safety and health service. The Committee had previously noted that the health and safety inspectors are responsible for ensuring compliance with the HSE Act of 1992 and the HSE Regulations of 1995, including the provisions regulating the employment of children.

It notes the Government’s information that, in reviewing how children and young persons are protected by the HSE Regulations, the Department of Labour intends to reinforce the application of the HSE Regulations by employers and employees including putting out general communication and reviewing departmental guidance regarding the employment of young people and the safety of young people visiting a workplace. It further notes the Government’s information that the Department of Labour intends to begin investigating workplace practices relating to persons between 16 and 18 years of age engaged in hazardous work.

The Committee notes the NZCTU’s statement that it sees the Department of Labour’s intention of investigating hazardous work practices of young persons between 16 and 18 years of age as a positive if overdue action. In this regard, the NZCTU recommends that input be sought from experts in child and youth development in order to assess the physical and psychological limits of young persons in relation to the work. The Committee notes the Government’s statement in reply to the NZCTU’s comments that it will take into account the NZCTU’s recommendation.

The Committee requests the Government to provide information on the follow-up to these measures envisaged by the Department of Labour and results achieved.

2. Child Labour Officials Advisory Committee (CLOAC). The Committee had previously noted that CLOAC was established in 2001 to raise public awareness and understanding of ILO Convention No. 182 and to encourage initiatives to identify and eliminate the worst forms of child labour. The Committee notes the Government’s information that it has been decided to replace CLOAC with a Children’s Employment Work Programme Advisory Group, which will be led by the Department of Labour. The Advisory Group will have a wider role than the CLOAC as it will cover children in all types of employment and not only the worst forms of child labour. The Advisory Group will be in charge, amongst others, of overseeing the strengthening of child workers’ protection. It will also review and respond to new issues relating to child labour, including its worst forms. The Committee requests the Government to provide information on the activities of the Children’s Employment Work Programme Advisory Group regarding children involved in the worst forms of child labour, and results achieved.

3. Prostitution Law Review Committee. The Committee had noted that the Prostitution Law Review Committee (PLR Committee) is responsible for assessing the impact of the Prostitution Reform Act (PRA) on the number of persons working as sex workers in the country, and on any prescribed matters relating to sex workers or prostitution. It had noted that the PLR Committee issued its first report in April 2005, according to which, it was estimated that there were around 200 sex workers under the age of 18 and 60 per cent of them were located in the street sector. The Committee notes the Government’s information that research for the PLR Committee’s review began in late 2006. The Ministry of Justice is currently gathering information from government agencies and territorial authorities about their responses to the PRA. Research is also being undertaken by the Christchurch School of Medicine to assess the impact of the PRA on the health and safety practices of sex workers. The research projects will investigate the extent of underage involvement in prostitution. The completed research projects will be presented by late 2007. The Committee requests the Government to provide information on the results of this research.

Article 6. Programmes of action to eliminate the worst forms of child labour. National Plan of Action Against the Commercial Sexual Exploitation of Children. The Committee had previously noted that a National Plan of Action against the Commercial Sexual Exploitation of Children (NPA against CSEC) had been approved in 2001, focusing on child prostitution, child pornography, child sex tourism and child trafficking for sexual purposes. It had noted that the New Zealander Ministry of Justice was working with ECPAT (End Child Prostitution, Pornography and Trafficking) to complete a stock-take of initiatives undertaken by the Government and NGOs under the NPA against CSEC. The Committee notes with interest that, according to the Ministry of Justice’s report of May 2006 entitled “A five-year stocktake of the steps taken by the New Zealand Government and civil society to prevent the commercial sexual exploitation of children” (NPA against CSEC’s report), a number of initiatives have been taken by various stakeholders in order to: (a) identify the causes of vulnerability and patterns of exploitation among young people experiencing commercial exploitation; (b) ensure public, political, community and awareness on commercial sexual exploitation of children (CSEC); (c) ensure that there are comprehensive laws that cover all aspects of CSEC and that such laws are enforced; (d) ensure international cooperation in prosecution of offenders and protection of children; (e) ensure that children are not victimized by the legal system; (f) reduce factors that make children vulnerable to CSEC and ensure that children are educated to protect themselves from CSEC; (g) prevent literate children from being sexually exploited, through safe Internet use policies; (h) provide health care and sex education for young people; (i) provide services to protect children from CSEC (for example by receiving and responding to reports from the public of suspected CSEC); (j) enable children who have experienced CSEC to recover and reintegrate. According to the Government, the stock-take made it clear that there has been significant progress towards the 13 objectives of the NPA against CSEC. Noting that some of these activities are still ongoing, the Committee requests the Government to continue providing information on the implementation of these activities, and results achieved.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Committee had previously noted the Department of Child, Youth and Family Services (CYF) funded service providers to work with children and young people who may be living or working on the streets. For example, it funded a collaborative project aimed at providing social support for young people including women prostitutes. It had also noted that a Baptist action shelter “Awhina Teina” was officially opened on 30 April 2005 and that such shelter is deliberately distanced from CYF and the police in order to encourage the young women to use it. The Committee notes the Government’s information that in Auckland an NGO, Iosis, developed a programme to rehabilitate girls engaged in sexual activity. The programme details, such as security and referral procedures, were collectively developed by Iosis, the police, CYF, New Zealand Prostitute Collective, and other interested parties. Another NGO in Auckland operates a late-night patrol in order to assist girls engaged in commercial sexual activity in various ways, including providing them with alternatives to their current lifestyles. The Committee notes that the majority of these measures were undertaken in implementing the NPA against CSEC. The Committee requests the Government to continue providing information on the measures taken in order to assist for the removal of children from the commercial sexual exploitation and for their rehabilitation and social integration. It requests the Government to provide information on the number of children under the age of 18 years who have been withdrawn from commercial sexual exploitation and rehabilitated pursuant to the implementation of the NPA against CSEC.

Article 8. International cooperation and assistance. Child sex tourism. The Committee notes the Government’s information that New Zealand engages in formal or informal cooperation with other States to combat child sex tourism. It also notes the Government’s information that the New Zealand’s International Aid and Development Agency (NZAID) in 2006–07 made contributions to various UN agencies (such as the UNFPA, UNICEF, UNHCR, UNDP) which contribute to addressing child labour issues. It notes with interest the Government’s information that since 2003 New Zealand has contributed to a number of projects regarding the worst forms of child labour. These projects target: children involved in trafficking (Cambodia, Indonesia); children working on the street (Cambodia, Tanzania); children affected by armed conflict (Papua New Guinea, Sudan); orphans and other vulnerable children (Namibia, the United Republic of Tanzania, Zimbabwe); children involved in commercial sexual exploitation (India, Philippines).

Part III of the report form. Court decisions. The Committee notes that the Government has provided one court decision regarding the making and distributing of pornographic material depicting children and young persons in sexual activity, in contravention of sections 123 and 124 of the Films, Videos and Publications Classification Act (the Films Act) of 1993. It notes the Government’s statement that the district courts have demonstrated an acceptance that child sexual abuse images are not just pictures but represent real harm to real children. It also notes that the Government has provided under Convention No. 59 four court decisions regarding the performance of hazardous work by children in breach of the HSE Act and Regulations.

Parts IV and V of the report form. Application of the Convention in practice. Following its previous comments, the Committee notes the Government’s information that there have been 25 prosecutions under the Films Act since it was amended in 2005. Of these prosecutions, 17 resulted in penalties of imprisonment (between six months to three-and-a-half years). Moreover, as at February 2007, there have been 61 charges laid under sections 20–23 of the Prostitution Reform Act of 2003. Out of these charges, 48 were finalized and nine people have been convicted on a total of 19 charges (three of them were punished with penalties of imprisonment). Furthermore, there have been two prosecutions under the HSE Regulations and two under the HSE Act regarding the contravention of the duty of employers to ensure that young workers do not perform hazardous work. The Committee requests the Government to continue providing information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention and, in particular, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.