International Services
Convention 81 New Zealand
Article 22 of the Constitution of the ILO
Report for the period 1 July 2007 to 31 May 2009
made by the Government of New Zealand on the
Labour Inspection Convention, 1947 (No 81)
- Please give a list of the legislation and administrative regulations, etc., which apply the provisions of the Convention. Where this has not already been done, please forward copies of the said legislation, etc., to the International Labour Organisation with this report.
Please give any available information concerning the extent to which these laws and regulations have been enacted or modified to permit of, or as a result of, ratification.
General Comment
A system of labour inspection is maintained by the New Zealand Government in respect of all workplaces, including industrial, commercial, and non-commercial workplaces, and all industries including agricultural, transport and mining industries. The Labour Inspectorate consists of two separate parts, both administered by the Workplace Group of the Department of Labour ("the Department"). This comprises:
- a Health and Safety Inspectorate; and
- a Labour Inspectorate.
The Health and Safety Inspectorate and the Labour Inspectorate coordinate and collaborate on inspection activity where the scope and nature of an inspection dictates that such collaboration is appropriate or necessary. The Health and Safety Inspectorate and the Labour Inspectorate are jointly referred to in this report as the "Labour Inspectorate."
The Department of Labour's Contact Centre is the first point of contact for information and assistance on workplace matters including employment relations and occupational health and safety. Calls to the Contact Centre are assessed, prioritised, and referred on to the appropriate parts of the Department as required.
The Department also maintains a Small Business Information Unit (SBIU), based in four locations in New Zealand. It works through small and medium enterprise (SME) business networks and umbrella organisations to raise awareness about health and safety and labour standards and to improve workplace practices.
Copies of the following pieces of relevant legislation can be accessed through the following weblink: www.legislation.govt.nz
- Employment Relations Amendment Act 2008
- Employment Relations (Flexible Working Arrangements) Amendment Act 2007
- Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
- Minimum Wage (New Entrants) Amendment Act 2007
- Holidays (Transfer of Public Holidays) Amendment Act 2008
- Minimum Wage Order 2009
Health and Safety Legislation
Since the last report changes to the Health and Safety in Employment Regulations have come into force. These changes mean that the age restrictions on hazardous work (below age 15) and night work (below age 16) that already apply to employees will now cover young people working as independent contractors.
These new regulations restrict young contract workers under 15 from working in high-hazard workplaces such as construction, logging and manufacturing sites, and from doing work that is likely to injure them such as working with machinery, driving heavy vehicles and lifting heavy loads. They also restrict young contract workers under 16 from working at night (between 10pm and 6am) unless the work is done in accordance with an approved code of practice.
Hazardous Substances and New Organisms (HSNO) Act 1996
The Regulatory Improvement Bill, currently with select committee, provides changes to the HSNO Act in respect of three provisions to improve alignment of HSE and HSNO Act enforcement:
- the transfer of HSNO enforcement in aerodromes from the Civil Aviation Authority to the Department (to reflect actual practice)
- extending existing section s97B, which allows HSE powers of entry to be used to enforce the HSNO Act, to HSE designated agencies (Maritime New Zealand and the Civil Aviation Authority)
- aligning the time to begin prosecution proceedings with the HSE Act.
HSNO Infringement Notice Regulations
The Department is also working with the Ministry for the Environment (MfE) on a Cabinet paper to introduce HSNO Infringement Notice regulations, as provided for in the HSNO Act but not yet implemented. Infringement notices are an important alternative enforcement tool to prosecutions. They can address small non-compliance occurrences while not overly burdening business. Infringement notices will be a crucial tool for the Department under the HSNO Compliance and Enforcement Strategy.
(B) Other labour relations changes:
Employment Relations Act 2000
A series of amendments have been made to the Employment Relations Act. The Act now requires facilities and breaks to be provided, where reasonable and practicable, for employees who wish to breastfeed in the workplace or during work periods. It also requires the provision of 10 minute paid rest periods and 30 minute meal breaks. This change has not added duties to the labour inspector's role.
An amendment was also made to enable employees, who provide care for any person to request a variation of their working arrangements. The employee may be refused their request on specified grounds. The labour inspector is required to provide appropriate assistance to resolve any disagreements in relation to the employer's duties to respond to the request. Mediation is available with failure to resolve the disagreement.
The Act was also changed to provide for an employment trial period of up to 90 days which is to be written into an agreement and agreed to by both employer and worker. During this time an employee cannot bring legal proceedings in relation to a dismissal. Other personal grievance actions provided in the Act remain available to the employee.
Minimum Wage Act 1983
The Act has been changed so that the minimum wage is not categorised solely by age group but by their status as new entrants in the workforce and their engagement in work-related training.
The Department reviews the minimum wage on an annual basis and the applicable rate is provided for by Minimum Wage Orders. The current Minimum Wage Order is the Minimum Wage Order 2009.
Holidays Act 1981
The Holidays Act has been amended to allow for agreement to be reached between the employer and employee about the day to be treated as a public holiday in the event that the employee works a roster across two calendar days. This is expected to reduce confusion and therefore complaint workload of the labour inspectorate.
- Article 28 of the Convention is as follows:
There shall be included in the annual reports to be submitted under article 22 of the Constitution of the International Labour Organisation full information concerning all laws and regulations by which effect is given to the provisions of this Convention.
In application of this Article, please indicate in detail for each of the following Articles of the Convention the provisions of the legislation, administrative regulations, etc., or other measures taken by the competent authorities, which ensure the application of the various provisions of the Convention.
If, in your country, ratification of the Convention gives the force of national law to its terms, please indicate by virtue of what constitutional provisions ratification has had this effect. Please also specify what action has been taken to make effective those provisions of the Convention which require a national authority to take certain specific steps for its implementation, such as measure to define its scope and the extent to which advantage may be taken of permissive exceptions provided for in it, measures to draw the attention of the parties concerned to its provisions, and arrangements for adequate inspection and penalties.
If the Committee of Experts or the Conference Committee on the Application of Standards has requested additional information or has made an observation on the measures adopted to apply the Convention, please supply the information asked for or indicate the action taken by your Government to settle the points in question.
PART I. LABOUR INSPECTION IN INDUSTRY
Article 1
Each Member of the International Labour Organisation for which this Convention is in force shall maintain a system of labour inspection in industrial workplaces.
There has been no change since the last report.
Article 2
1. The system of labour inspection in industrial workplaces shall apply to all workplaces in respect of which legal provisions relating to conditions of work and the protection of workers while engaged in their work are enforceable by labour inspectors.
2. National laws or regulations may exempt mining and transport undertakings or parts of such undertakings from the application of this Convention.
Please indicate any undertakings, or parts of undertakings, which have been exempted in virtue of the provisions of paragraph 2 of Article 2.
There has been no change since the last report.
Article 3
1. The functions of the system of labour inspection shall be:
(a) to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors;
(b) to supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions;
(c) to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions.
2. Any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.
Please indicate any duties entrusted to Labour Inspectors other than those provided for in paragraph 1 of this Article.
Generally the functions of Labour Inspectors remain unchanged since the last report. The amendment to the Employment Relations Act providing for agreed flexible working arrangements creates a new focus for the inspector on facilitating resolution to any problems arising out of the process undertaken by parties seeking to reach an agreement. There is no legal compliance action associated with the role of the inspector, which is primarily facilitative and the new function remains within the scope of their existing role. A complainant may access Mediation Services and the Employment Relations Authority if they are unable to resolve their problem. The role for the labour inspector is described by the Department of Labour, in respect of this role, as:
- to provide a time efficient, early intervention process for parties to identify any unrecognised options for providing the employee with flexible working arrangements;
- to support the parties to work together towards their own resolution; and
- to identify the limit to that assistance and the need to refer the matter back to the parties for further dispute resolution options.
Outside of the changes outlined above there have been no additional duties entrusted to Labour Inspectors, and nothing added to the role that would interfere with their primary duties, or to prejudice authority and impartiality.
The functions of Health and Safety Inspectors remain unchanged since the last report.
Article 4
1. So far as is compatible with the administrative practice of the Member, labour inspection shall be placed under the supervision and control of a central authority.
2. In the case of a federal State, the term central authority may mean either a federal authority or a central authority of a federated unit.
1. Please indicate the authority under whose supervision and control the system of labour inspection is placed.
2. In the case of federal States please indicate any arrangements that may exist for cooperation between federal and state authorities in regard to matters of labour inspection.
There has been no change since the last report.
Article 5
The competent authority shall make appropriate arrangements to promote:
(a) effective co-operation between the inspection services and other government services and public or private institutions engaged in similar activities; and
(b) collaboration between officials of the labour inspectorate and employers and workers or their organisations.
Please give particulars concerning the arrangements made to give effect to the provisions of this Article.
The New Zealand Government has agreed that the Health and Safety in Employment Act 1992 be the primary piece of legislation governing safety while work is carried out by electrical or gas workers, while responsibility for public and product safety remains with the energy sector acts, administered by the Ministry of Economic Development (MED).
To give effect to this decision, the Department will transfer the worker safety components (contained in the Electricity Regulations 1997 and the Gas Regulations 1993) to the HSE legislative framework.
In practice the Department works collaboratively with the MED to ensure that there is appropriate management of health and safety for people who are exposed to workplace hazards arising from the generation, reticulation or use of electricity or gas. The recent changes have included a memorandum of understanding between the departments which realigns lead agency roles and responsibilities.
Article 6
The inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences.
Please give details as to the status and conditions of service of the inspection staff.
Labour Inspectors are employees of the Department of Labour. They are employees just like other Department employees and employees in New Zealand generally. Their terms of employment are independent of changes of government and improper external influences.
Article 7
1. Subject to any conditions for recruitment to the public service which may be prescribed by national laws or regulations, labour inspectors shall be recruited with sole regard to their qualifications for the performance of their duties.
2. The means of ascertaining such qualifications shall be determined by the competent authority.
3. Labour inspectors shall be adequately trained for the performance of their duties.
1 and 2. Please indicate what conditions, if any, other than their qualifications for the performance of their duties, are applied in the recruitment of labour inspectors.
3. Please indicate, in so far as possible, the arrangements made to ensure the training of labour inspectors for the performance of their duties, including both:
(a) arrangements for their initial training at the time of appointment to the service; and
(b) arrangements for subsequent training.
When recruiting new Inspectors, the Department of Labour seeks appointees who have a background, or a demonstrated interest, in employment relationships, strong people and investigative skills, some legal training or experience involving the interpretation of legislation and formal agreements, and possibly with some background involving law enforcement.
The Department has created an internal Learning and Development Centre to ensure all staff, including Health and Safety and Labour Inspectors are competent in the full range of workplace inspection functions, including communication, problem resolution, and writing skills and peer coaching training. In addition, matters of a more specific regulatory nature are addressed through practice leadership teams comprising Chief Advisors, three labour inspection practice leaders and four health and safety practice leaders. This team provides induction training and ongoing skill development.
Article 8
Both men and women shall be eligible for appointment to the inspection staff; where necessary, special duties may be assigned to men and women inspectors.
Both men and woman are eligible for appointment to the Labour Inspectorate. Human Rights laws outlawing discrimination based on gender apply in New Zealand. In addition, the Department of Labour is an Equal Employment Opportunities employer.
Article 9
Each Member shall take the necessary measures to ensure that duly qualified technical experts and specialists, including specialists in medicine, engineering, electricity and chemistry, are associated in the work of inspection, in such manner as may be deemed most appropriate under national conditions, for the purpose of securing the enforcement of the legal provisions relating to the protection of the health and safety of workers while engaged in their work and of investigating the effects of processes, materials and methods of work on the health and safety of workers.
Please give details as to the measures taken to give effect to Article 9, including the extent to which the staff carrying out visits of inspection includes technical experts and specialists in the fields of specialisation mentioned, or in related technical fields.
If, and to the extent that, technical experts and specialists are not included in the staff carrying out visits of inspection, please give particulars as to the arrangements made to ensure that such experts and specialists are associated in the work of inspection.
See Article 7 for discussion generally on recruitment.
The introduction of the Recognised Seasonal Employer (RSE) Policy to assist mainly horticulture and viticulture businesses to plan for and meet seasonal labour requirements, has resulted in new Labour Inspector positions with specific training in health and safety and minimum employment standards, including knowledge of the relevant legislation. There is also a practice leader appointed to support the RSE inspectors' development and ensure national consistency.
The Department has also created two new roles to ensure that arrangements have been made so that health and safety technical experts and specialists are associated with the work of inspection without actually carrying out the work of inspection. These roles are Senior Advisor Standard Setting, of which there are 3 Full Time Equivalent employees (FTEs); and Technical Leader, of which there are 7 FTEs.
Article 10
The number of labour inspectors shall be sufficient to secure the effective discharge of the duties of the inspectorate and shall be determined with due regard for:
(a) the importance of the duties which inspectors have to perform, in particular--
(i) the number, nature, size and situation of the workplaces liable to inspection;
(ii) the number and classes of workers employed in such workplaces; and
(iii) the number and complexity of the legal provisions to be enforced;
(b) the material means placed at the disposal of the inspectors; and
(c) the practical conditions under which visits of inspection must be carried out in order to be effective.
Please indicate the strength of the inspection staff and give general information concerning the numbers of inspectors of different categories, including inspectors to whom special or technical functions may be assigned, and particulars of the geographical distribution of the inspection staff.
If this information is given in the reports transmitted to the International Labour Office in accordance with the provisions of Article 20, reference may be made to such reports in replying to this question.
(A) Health and Safety Inspectors
We refer you to the table below.
(B) Labour Inspectors
At July 2008 there were 33 FTE Labour Inspectors, including 5 positions allocated to the RSE scheme. This is an increase of one labour inspector since the last report. There were 156 Health and Safety Inspectors with an additional 12 specialist positions and four professional leaders, providing a total of 172 positions.
| Region (geographic, of New Zealand) | Total Labour Inspectors |
|---|---|
| Northern Region | 10 |
| Waikato-Eastern | 7 |
| Central | 7 |
| Southern | 6 |
| Professional Leadership/Management | 3 |
| Grand Total | 33 |
| Region (geographic, of New Zealand) | Total H&S Inspectors |
|---|---|
| Northern Region | 51 |
| Waikato-Eastern | 31 |
| Central | 36 |
| Southern | 38 |
| Grand Total | 156 |
| Position | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 |
|---|---|---|---|---|---|---|---|
| Labour Inspectors | 22 | 18 | 18 | 22 | 22 | 29 | 30 |
| Professional Leadership | 1 | 3 | 3 | 3 | 2 | 3 | |
| Total | 22 | 19 | 21 | 25 | 25 | 31 | 33 |
| Position | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 |
|---|---|---|---|---|---|---|---|
| H&S Inspectors | 161 | 168 | 166 | 157 | 144 | 141 | 156 |
| Departmental Medical Practitioner (FTE) | 2 | 2 | |||||
| Senior Advisor Standard Setting | 3 | ||||||
| Technical Leader | 7 | ||||||
| Professional Leadership | 4 | ||||||
| Total employed | 161 | 168 | 166 | 157 | 144 | 143 | 172 |
It should also be noted that Department of Labour employment relations mediators are an additional point of contact for problem resolution and this often entails minimum code complaints.
Inspectors are part of regional teams and managed regionally. Their duties and functions are changed only to the extent outlined in this report but the new structure brings Labour Inspectors, Health & Safety Inspectors and Mediators into a single group allowing greater connectivity when responding to employers, workers and the public in general.
Article 11
1. The competent authority shall make the necessary arrangements to furnish labour inspectors with:
(a) local offices, suitably equipped in accordance with the requirements of the service, and accessible to all persons concerned;
(b) the transport facilities necessary for the performance of their duties in cases where suitable public facilities do not exist; and
2. The competent authority shall make the necessary arrangements to reimburse to labour inspectors any travelling and incidental expenses which may be necessary for the performance of their duties.
Please indicate in general the arrangements made to give effect to the provisions of this Article.
There has been no change since the last Report.
Article 12
1. Labour inspectors provided with proper credentials shall be empowered:
(a) to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection;
(b) to enter by day any premises which they may have reasonable cause to believe to be liable to inspection; and
(c) to carry out any examination, test or enquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed, and in particular:
(i) to interrogate, alone or in the presence of witnesses, the employer or the staff of the undertaking on any matters concerning the application of the legal provisions;
(ii) to require the production of any books, registers or other documents the keeping of which is prescribed by national laws or regulations relating to conditions of work, in order to see that they are in conformity with the legal provisions, and to copy such documents or make extracts from them;
(iii) to enforce the posting of notices required by the legal provisions; and
(iv) to take or remove for purposes of analysis samples of materials and substances used or handled, subject to the employer or his representative being notified of any samples or substances taken or removed for such purpose.
2. On the occasion of an inspection visit, inspectors shall notify the employer or his representative of their presence, unless they consider that such a notification may be prejudicial to the performance of their duties.
The Acts generally give the Labour Inspectorate the power to enforce the terms of the Acts, and specifically to determine if an employee is entitled to certain benefits under the Acts. This includes determination of an employee's rights to holiday pay, annual holidays, or leave from work while attending defence force training.
The Labour Inspectors consult with both employees and employers before making determinations. In all situations where an employment relationship problem exists, the focus is on resolving the problem between the parties.
In all other regards, there has been no change since the previous report.
Article 13
1. Labour inspectors shall be empowered to take steps with a view to remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to the health or safety of the workers.
2. In order to enable inspectors to take such steps they shall be empowered, subject to any right of appeal to a judicial or administrative authority which may be provided by law, to make or to have made orders requiring--
(a) such alterations to the installation or plant, to be carried out within a specified time limit, as may be necessary to secure compliance with the legal provisions relating to the health or safety of the workers; or
(b) measures with immediate executory force in the event of imminent danger to the health or safety of the workers.
3. Where the procedure prescribed in paragraph 2 is not compatible with the administrative or judicial practice of the Member, inspectors shall have the right to apply to the competent authority for the issue of orders or for the initiation of measures with immediate executory force.
Please indicate whether labour inspectors have the powers provided for in paragraph 2 of Article 13. If not, please give particulars concerning the procedure followed in accordance with paragraph 3.
There has been no change since the previous Report.
Article 14
The labour inspectorate shall be notified of industrial accidents and cases of occupational disease in such cases and in such manner as may be prescribed by national laws or regulations.
Please state in particular what measures have been taken to give effect to the provisions of this Article.
Employers, principles and the self employed must notify all serious harm to the Department. The Department also has access to Accident Compensation Corporation's (ACC) serious harm claims data under Section 286 of the Injury, Prevention, Rehabilitation and Compensation Act 2001 ("IPRC Act").
Article 15
Subject to such exceptions as may be made by national laws or regulations, labour inspectors:
(a) shall be prohibited from having any direct or indirect interest in the undertakings under their supervision;
(b) shall be bound on pain of appropriate penalties or disciplinary measures not to reveal, even after leaving the service, any manufacturing or commercial secrets or working processes which may come to their knowledge in the course of their duties; and
(c) shall treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and shall give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such a complaint.
There has been no change since the last report.
Article 16
Workplaces shall be inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.
Please indicate the measures taken to ensure adequate frequency and thoroughness of inspection.
The tables below set out statistics on complaints received by the Labour Inspectorate and Labour Inspectorate visits:
| 2004/5 | 2005/6 | 2006/7 | 2007/08 | 2008/09 YTD | |
|---|---|---|---|---|---|
| Formal Complaints | 1,773 | 1,694 | 1781 | 1832 | 1765 |
| Completed Investigations | 1,600 | 1,611 | 1781 | 1832 | 1765 |
YTD figures are 1 July 2008 to 28 Feb 2009
| 2004/5 | 2005/6 | 2006/7 | 2007/08 | 2008/09 YTD | |
|---|---|---|---|---|---|
| Forum and information visits | 258 | N/A | 531 | 574 | 373 |
| Workplace Assessments processes | 103 | Est. 150* | 129 | 172 | 398 |
| RSE - number of information visits associated with RSE | 64 | 135 | |||
| RSE - number of workplace assessments associated with RSE | 22 | 270 |
YTD figures are 1 July 2008 to 28 Feb 2009
| 2004/5 | 2005/6 | 2006/7 | 2007/08 | 2008/09 YTD | |
|---|---|---|---|---|---|
| Formal Complaints | 3,320 | 2,793 | 3,216 | 3,573 | 2,539 |
| Reported Incident | 7,198 | 6,981 | 6,529 | 7,264 | 5,441 |
| Visits to deliver information | 9,546 | 1,031 | 3,778 | 3,178 | 3,407 |
| Compliance assessment visits | 8,492 | 4,686 | 5,144 | 5,378 | 4,789 |
| Total Visits | 18038 | 5717 | 8922 | 8556 | 8196 |
YTD figures are 1 July 2008 to 31 Mar 2009.Please note: These numbers are under review as part of the Official Statistics project and as such as liable to change.
Article 17
1. Persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning: Provided that exceptions may be made by national laws or regulations in respect of cases in which previous notice to carry out remedial or preventive measures is to be given.
2. It shall be left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings.
Since the last report the Department has completed a range of work to improve the consistency and transparency of enforcement of health and safety legislation in particular.
A policy statement, "Keeping Work Safe: The Department of Labour's Policy on Enforcing the Health and Safety in Employment Act 1992" was subject to public consultation during 2008 and published officially in early 2009. It is intended to provide businesses a greater level of certainty with regard to the responses they can expect as a result of engagements with health and safety inspectors.
The policy statement is supportive of modern and effective regulation, in particular it recognises that the unique circumstances of any event must be taken into account and the right approach to enforcement applied to achieve the desired outcome in those circumstances.
The policy statement is in turn supported by the development of internal policy/guidelines, a prosecutions panel, and various practice improvements to assist staff in applying discretion and enforcement decision making in a consistent and appropriate manner.
Article 18
Adequate penalties for violations of the legal provisions enforceable by labour inspectors and for obstructing labour inspectors in the performance of their duties shall be provided for by national laws or regulations and effectively enforced.
Please indicate the measures taken to give effect to the provisions of this Article.
There have been no changes since the last Report.
Article 19
1. Labour inspectors or local inspection offices, as the case may be, shall be required to submit to the central inspection authority periodical reports on the results of their inspection activities.
2. These reports shall be drawn up in such manner and deal with such subjects as may from time to time be prescribed by the central authority; they shall be submitted at least as frequently as may be prescribed by that authority and in any case not less frequently than once a year.
Please indicate the measures taken to give effect to the provisions of this Article.
If possible please attach sample copies of the reports of labour inspectors or local inspection offices.
The Labour Inspectorate reports on statistics such as provided in the comments on Articles 10 and 16 internally on a monthly basis. A quarterly report is provided to the Minister of Labour and the annual figures form part of the Department's Annual Report.
Article 20
1. The central inspection authority shall publish an annual general report on the work of the inspection services under its control.
2. Such annual reports shall be published within a reasonable time after the end of the year to which they relate and in any case within twelve months.
3. Copies of the annual reports shall be transmitted to the Director-General of the International Labour Office within a reasonable period after their publication and in any case within three months.
The Department of Labour publishes an annual report which includes statistics reported on by the Labour Inspectorate.
Article 21
The annual report published by the central inspection authority shall deal with the following and other relevant subjects in so far as they are under the control of the said authority:
(a) laws and regulations relevant to the work of the inspection service;
(b) staff of the labour inspection service;
(c) statistics of workplaces liable to inspection and the number of workers employed therein;
(d) statistics of inspection visits;
(e) statistics of violations and penalties imposed;
(f) statistics of industrial accidents; and
(g) statistics of occupational diseases.
The Annual Report of the Department of Labour for the year ended 30 June 2009, (which to date has not yet been released), provides the information listed above. The Department of Labour website (www.dol.govt.nz) lists statutes and regulations administered by the Department.
A copy of the Annual Report can be accessed through the following web link: http://www.dol.govt.nz/publications/general/gen-annual-report.asp
PART II. LABOUR INSPECTION IN COMMERCE
Article 22
Each Member of the International Labour Organisation for which this Part of this Convention is in force shall maintain a system of labour inspection in commercial workplaces.
There is no change since the last report.
Article 23
The system of labour inspection in commercial workplaces shall apply to workplaces in respect of which legal provisions relating to conditions of work and the protection of workers while engaged in their work are enforceable by labour inspectors.
There is no change since the last report.
Article 24
The system of labour inspection in commercial workplaces shall comply with the requirements of Articles 3 to 21 of this Convention in so far as they are applicable.
If no declaration has been made in accordance with paragraph 1 of Article 25, please indicate, in so far as such information has not already been given, the extent to and the manner in which the provisions of Articles 3 to 21 are applied in respect of labour inspection in commercial workplaces.
There is no change since the last report.
PART III. MISCELLANEOUS PROVISIONS
Article 25
1. Any Member of the International Labour Organisation which ratifies this Convention may, by a declaration appended to its ratification, exclude Part II from its acceptance of the Convention.
2. Any Member which has made such a declaration may at any time cancel that declaration by a subsequent declaration.
3. Every Member for which a declaration made under paragraph 1 of this Article is in force shall indicate each year in its annual report upon the application of this Convention the position of its law and practice in regard to the provisions of Part II of this Convention and the extent to which effect has been given, or is proposed to be given, to the said provisions.
If a declaration has been made under paragraph 1 of this Article and is still in force, please indicate, in accordance with paragraph 3 of this Article:
(a) the position of the law and practice in regard to the provisions of Part II (Articles 22 to 24 of the Convention); and
(b) the extent to which effect has been given, or is proposed to be given, to the said provisions.
There is no change since the last report.
Article 26
In any case in which it is doubtful whether any undertaking, part or service of an undertaking or workplace is an undertaking, part, service or workplace to which this Convention applies, the question shall be settled by the competent authority.
Please give particulars concerning the decisions, if any, made by the competent authority in relation to this Article.
This Article is not relevant for New Zealand.
Article 27
In this Convention the term legal provisions includes, in addition to laws and regulations, arbitration awards and collective agreements upon which the force of law is conferred and which are enforceable by labour inspectors.
This Article is not relevant for New Zealand.
Article 28
There shall be included in the annual reports to be submitted under Article 22 of the Constitution of the International Labour Organisation full information concerning all laws and regulations by which effect is given to the provisions of this Convention.
Changes to relevant laws are set out in Section I.
Article 29
1. In the case of a Member the territory of which includes large areas where, by reason of the sparseness of the population or the stage of development of the area, the competent authority considers it impracticable to enforce the provisions of this Convention, the authority may exempt such areas from the application of this Convention either generally or with such exceptions in respect of particular undertakings or occupations as it thinks fit.
2. Each Member shall indicate in its first annual report upon the application of this Convention submitted under Article 22 of the Constitution of the International Labour Organisation any areas in respect of which it proposes to have recourse to the provisions of the present Article and shall give the reasons for which it proposes to have recourse thereto; no Member shall, after the date of its first annual report, have recourse to the provisions of the present Article except in respect of areas so indicated.
3. Each Member having recourse to the provisions of the present Article shall indicate in subsequent annual reports any areas in respect of which it renounces the right to have recourse to the provisions of the present Article.
1 and 2. If this is the first annual report of your Government upon the application of the Convention please indicate any areas which, in virtue of the authorisation given in paragraph 1 of Article 29, have been excluded, in whole or in part, from the application of the Convention, together with the reason or reasons for their exclusion.
3. If this is a report subsequent to an annual report please indicate any areas in respect of which the right to have recourse to the provisions of this Article may have been renounced.
Not relevant for New Zealand.
- Please state to what authority or authorities the application of the above-mentioned legislation and administrative regulations, etc., is entrusted and the methods for supervising and enforcing that application. In particular, please supply information on the organisation and working of inspection.
The application of the Convention and the administration of the relevant legislation is vested in the Department of Labour under the direction of the Minister of Labour, with the exception of health and safety inspection in the maritime and aviation sectors, which is under the supervision and control of the Maritime New Zealand and the Civil Aviation Authority respectively. Additional information on section activities is included in the text and appendices of the Department's annual report. As per the information provided in the answer to Article 10, health and safety inspection functions are sometimes carried out by the New Zealand Police as well. Police Officers working in the Commercial Vehicle Investigation Unit are appointed as HSE Inspectors by the Secretary of Labour.
- Please give a general appreciation of the manner in which the Convention is applied, and information on any practical difficulties encountered in the application of the Convention.
No practical difficulties have been encountered with the application of the Convention.
- Please indicate the representative organisations of employers and workers to which copies of the present report have been communicated in accordance with article 23, paragraph 2, of the Constitution of the International Labour Organisation. If copies of the report have not been communicated to representative organisations of employers and/or workers, or if they have been communicated to bodies other than such organisations, please supply information on any particular circumstances existing in your country which explain the procedure followed.
- Please indicate whether you have received from the organisations of employers or workers concerned any observations, either of a general kind or in connection with the present or the previous report, regarding the practical application of the provisions of the Convention or the application of the legislation or other measure implementing the Convention. If so, please communicate the observations received, together with any comments that you consider useful.
Copies of this report have been forwarded to:
Business New Zealand
The New Zealand Council of Trade Unions
Responses to comments made by the Committee of Experts on the Application of Conventions and Recommendations, submitted in 2008
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.
The Prosecution Panel was set up to review the Department's prosecution decision making processes to ensure consistency. An Enforcement Policy was being developed concurrently to address implementation needs - this has now been officially released following consultation.
Answer: The Enforcement Policy outlines the Department's compliance and enforcement principles and the role of the Department and its approach to enforcement decision making. The Policy also explains the various enforcement tools that the Department may employ and provides specific guidance relating to enforcement. To view the Department of Labour's Policy on Enforcing Health and Safety in Employment, please visit the following link: http://www.dol.govt.nz/publications/research/keeping-work-safe/index.asp
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.
Answer: The Department implemented a prosecution panel as a temporary arrangement. It was intended to be a means of learning about consistency in decision making and enforcement processes. The learning from that panel has now been evaluated and new methods will be developed to provide an ongoing process for reviewing decision making and supporting improved consistency in investigation practices.
The Committee notes with interest that six new posts have been created for labour inspectors within the framework of the Recognised 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.
Answer: Five new Labour Inspector positions have been appointed under the Recognised Seasonal Employer Policy to assist mainly horticulture and viticulture businesses plan for and meet seasonal labour requirements at times where labour demand exceeds the labour currently available in the New Zealand workforce. As part of the compliance activity associated with the policy, the inspectors have expanded responsibilities around health safety, normally undertaken by separate health and safety inspectors. The role was primarily facilitative in the first year, ensuring that employers met minimum standards and employees' rights were protected. Mediators and health and safety inspectors were engaged where specialist expertise was required. It is envisaged as the policy matures, that traditional compliance tools will be required for those employers continuing to fail to meet minimum requirements of the legislation.
Response to ILO General Observation 2007/78
The Committee hopes that measures to promote effective cooperation between the labour inspection services and the justice system will be taken with a view to encouraging due diligence and attention in the treatment by judicial bodies of violations reported by labour inspectorates, as well as disputes in the same fields referred directly to them by workers and their organisations. The Committee also hopes that a system for the recording of judicial decisions that is accessible to the labour inspectorate will enable the central authority to make use of this information in pursuance of its objectives and to include it in the annual report, as envisaged in Article 21 (e). Governments are requested to provide information on the measures adopted or envisaged to achieve the above objectives, together with any relevant documentation.
Answer: The Department provides a database of employment and health and safety cases which is available to all inspectors on the Department's intranet. The Department also provides staff to assist inspectors requiring legal information. This information is provided to commercial publishers, and commercial databases that are available for inspectors are purchased. A specialist share-point web site is also available for posting and discussing relevant cases across the labour inspectorate.
As referred to in Article 21 above, violations and penalties are available through a web site link provided in the annual report.
The Department encourages due diligence and attention in the treatment by judicial bodies of violations through a Departmental legal unit that directly supports labour inspectors in disputes that are referred to judicial bodies and the courts.