Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 2 of the Convention. Workers’ right to weekly rest. Further to its previous observation, the Committee notes the Government’s explanations that, under the Health and Safety in Employment Act 1992, as amended, employers have a duty to prevent harm occurring to employees while at work, including the effects arising from excessive work hours or insufficient rest periods, even where hours of work and weekly rest periods are not explicitly regulated. The Government states that, in the absence of prescriptive legislation, New Zealand’s approach to occupational safety and health is a comprehensive, principles-based and performance-based framework which recognizes the diversity and complexity of modern workplaces and work. The Government adds that the Health and Safety in Employment Act is a comprehensive and integrated code which sets out general duties that can be supplemented by regulations, approved codes of practice and guidelines. This framework guarantees that there are strong inducements in place to ensure that workers receive a weekly rest period while employers are required to take all practicable steps to guarantee the safety of employees while at work.

In addition, the Committee notes the comments made by Business New Zealand (BNZ) according to which daily rest periods are specified in collective or individual employment agreements while the requirement for at least 24 hours of weekly rest is implicit in the obligation to specify hours of work. According to the BNZ, these protective standards are likely to prove far more effective than the provision of a statutory 24-hour weekly rest period, which might be more honoured in the breach than the observance.

While taking due note of these explanations, the Committee feels obliged to observe that the provisions of the Health and Safety in Employment Act in relation to weekly rest are general and overly permissive and therefore fail to give effect to specific requirements of the Convention. The Committee wishes to recall that the scope and purpose of Article 2 of the Convention are clear; workers must be granted an uninterrupted weekly rest period comprising not less than 24 hours in the course of each period of seven days, and this rest period should, to the extent possible, be the same for all and should coincide with the day already designated by tradition or custom as day of weekly rest. The Convention is thus articulated around three basic principles: regularity (rest to be taken at seven-day intervals); continuity (rest of at least 24 consecutive hours); and uniformity (weekly break to be taken simultaneously by all workers). These are minimum standards, which governments are bound to apply and enforce, either through national laws or regulations, or by ensuring that collective agreements contain at least as favourable provisions. The Convention permits, of course, total or partial exceptions (including suspensions or diminutions) from the general weekly rest standard set out in Article 2, especially when the inherent need to keep certain establishments in operation (e.g. continuous processes, transport, hospitals, hotels, newspapers, etc.) or exceptional conditions (e.g. accidents, force majeure or urgent work to premises or equipment) so require. It seeks to guarantee, however, that total or partial exceptions to the normal weekly rest are authorized on as limited grounds as possible, and in any case only after due consideration having been given to all social and economic implications and needs.

The Committee considers that the workers’ right to a minimum period of weekly rest and leisure as prescribed by the Convention is of such cardinal importance for their health and well-being that needs to be regulated in a well‑circumscribed and thus binding form and cannot be left to the mere persuasion power of codes of practice and guidelines. As for BNZ’s comment referring to the Committee’s apparent inability to recognize that this is a Convention dating from 1921 and that overall industrial relations protections have moved markedly since then, the Committee recalls that the principles and objectives pursued by Convention No. 14 have been reaffirmed and strengthened by another ILO Convention (No. 106) concerning weekly rest in commerce and offices, which was adopted in 1957 and which has received to date 63 ratifications. In the light of the preceding observations, the Committee hopes that the Government will take all necessary steps in order to bring its legislation into conformity with the basic requirements of the Convention by giving specific legislative expression to the workers’ entitlement to 24 consecutive hours of rest every week.

Moreover, the Committee notes the comments made by the New Zealand Council of Trade Unions (NZCTU) concerning the problem of driver fatigue in the road transport sector principally due to existing legislation that allows up to 70 hours of work per week. The NZCTU acknowledges that government agencies work to address the issue, for instance, by developing a strategy to combat the issue of driver fatigue, announced in December 2007, but indicates that cumulative tiredness and stress from excessively long hours may not be resolved by short breaks. The Committee would appreciate receiving any comments the Government may wish to make in response to the observations of the NZCTU.

Finally, the Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided that the ratification of up to date Conventions, including the Weekly Rest (Industry) Convention, 1921 (No. 14), and the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106), should be encouraged because these instruments continue to respond to current needs (see GB.283/LILS/WP/PRS/1/2, paragraphs 17–18). The Committee accordingly invites the Government to contemplate ratifying Convention No. 106 and to keep the Office informed of any decisions taken or envisaged in this respect.

[The Government is asked to reply in detail to the present comments in 2010.]