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

Labour Inspection Convention, 1947 (No. 81) - New Zealand (Ratification: 1959)

The Committee notes the Government’s report and the comments of Business New Zealand annexed to the report.

Articles 3(1) and (2) and 5(a) of the Convention. Additional duties entrusted to labour inspectors. The Committee notes that, in reply to its previous comments, the Government indicates that the role and functions of occupational safety and health (OSH) inspectors and labour inspectors are limited to the enforcement of legislation on OSH and employment and do not extend to the combating of illegal immigration. The Government adds that labour inspectors do sometimes work with immigration officials but the focus of this work for labour inspectors relates to OSH or employment breaches – not immigration status.

The Government adds that the Recognized Seasonal Employer (RSE) scheme is a programme aimed at ensuring legal migrant employment with approved and audited employers. The RSE labour inspectors work very closely with immigration officials in ensuring that the high employment standards of the programme are maintained. The Committee also notes that, according to Business New Zealand, section 351 of the Immigration Act 2009 makes it an offence for an employer to exploit an undocumented migrant worker.

The Committee requests the Government to provide more information on the activities carried out by the labour inspectorate in the framework of the RSE in cooperation with immigration officials and to provide data on the impact of these activities in ensuring compliance with legal provisions concerning conditions of work and the protection of workers. The Committee would also be grateful if the Government would specify any action taken by labour inspectors if undocumented migrant workers are detected in the framework of the RSE, for instance, in order to sanction the employer and ensure the discharge of his/her obligations with regard to the statutory rights of these workers, such as the payment of wages and any other benefits owed for work accomplished in the framework of the employment relationship.

Articles 10, 16, 17, 18 and 21. Number of labour inspectors, inspection visits and effective enforcement. The Committee notes that the number of OSH inspectors has decreased (from 156 in 2008 to 145 in 2010), while the number of labour inspectors in employment matters has remained the same since 2008 (33 inspectors). It further notes that, over the last two years, the number of regular OSH inspections has decreased, while the number of labour inspections in employment matters has increased.

In reply to the Committee’s previous comments in this regard, the Government indicates that, as the number of labour inspectors in employment matters was only 18 in 2004, it has increased significantly since then. The Government also indicates that it does not envisage an increase in the number of OSH or labour inspectors at present, due in part to constraints on Government spending. The Government indicates that to improve outcomes within the limits of current resources, labour inspectors are developing more sophisticated approaches to filtering and targeting of work so that current resources can be wielded to more effect.

The Committee also notes that, according to the statements made by the Government delegates to the 100th International Labour Conference (June 2011), a system-based model is being introduced in order to allow greater flexibility for inspectors, empower them to assist workplaces to improve their systems, while addressing individual concerns and provide proactive services targeted at clearly identified patterns of non-compliance in a more strategic manner. The objective is to promote increased voluntary compliance, and shift workplaces towards best practice. The Department of Labour has recently launched a Harm Reduction Programme in OSH which, rather than simply responding to incidents and notifications, focuses on trying to eliminate the harm or risk by working to change the underlying behaviour. According to the Government, targeting inspection services on areas or issues of highest risk is crucial, since, it could take up to five years for the Department of Labour to visit all workplaces.

The Committee also notes the information provided in the Government’s report on the amendments introduced to the Employment Relations Act (ERA) in 2010, so as to ensure sustainable compliance and greater deterrence in cases where there is ongoing or severe non-compliance. In this regard, the Committee notes the introduction of two new instruments, the so-called “enforceable undertaking” and “improvement notice” which labour inspectors can apply in the cases of non-compliance and eventually enforce, if breaches persist. The Committee also notes the doubling of the maximum penalties (from 5,000 New Zealand dollars ($NZ) to $NZ10,000 for individual employers and from $NZ10,000 to $NZ20,000 for companies) in case of non-compliance, and the possibility to impose penalty interest rates in certain cases of long-standing and repeated non-compliance involving the recovery of money. It notes with interest that, according to the Government, a more structured approach to determining penalties by the district courts and a significant increase in the level of fines and reparations awarded in OSH prosecutions has resulted from the action of the Department of Labour which has repeatedly sought increased fines from judgments on OSH cases. It also notes with interest that by virtue of article 134A of the ERA as amended in 2010, the Employment Relations Authority is empowered to award a penalty against a person for obstructing or delaying an authority investigation.

The Committee requests the Government to provide further information on the functioning of the new enforcement system in practice and to provide an assessment of its impact on levels of compliance with legal provisions on conditions of work and the protection of workers as well as on the number of industrial accidents and cases of occupational disease. It also requests the Government to indicate the impact of this system on staffing levels at the labour inspectorate given that the new system seems to require inspection visits by labour inspectors in order not only to provide information and advice but also to verify compliance with “enforceable undertakings” and “improvement notices” so as to ensure effective enforcement.

The Committee also requests the Government to indicate the manner in which labour inspectors exercise in practice the discretion provided for in Article 17 of the Convention to give warning and advice instead of instituting or recommending proceedings.

The Committee would be grateful if the Government would indicate the manner in which it is ensured, through the implementation of the so-called “improvement notices” and “enforceable undertakings” that labour inspectors apply the appropriate measures to achieve compliance with labour legislation and strike a reasonable balance between their educational and enforcement functions. Please provide a copy of any relevant internal instructions, including the operational guidelines and business rules referred to in the Government’s report.

Articles 20 and 21. Publication and content of the annual report on the work of the labour inspectorate. The Committee notes that the Government, in reply to its previous comment, acknowledges that the annual reports on the work of the labour inspectorate which are published on the website of the Department of Labour do not compile all the information listed under Article 21(a)–(g), but indicates that information not contained in the annual reports, such as information on prosecutions, industrial accidents and relevant legislation, can be found in other parts of the website. The Committee reminds the Government that annual reports on the work of the labour inspection services are an invaluable source of practical information and data not only for the other public bodies and the ILO supervisory bodies, but also the employers’ or workers’ organizations who may make, on this basis, comments on ways to improve the functioning of the labour inspection system. Noting the Government’s intention to take action to address this issue in the future, the Committee requests the Government to keep the ILO informed of any progress in this regard.