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

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

The Committee notes the observations of the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand, submitted with the Government’s report which was received on 30 September 2014.

Article 3(1) and (2) of the Convention. Additional duties entrusted to labour inspectors. The Committee previously noted the Government’s indication that labour inspectors sometimes work with immigration officials, but that the focus of this work for labour inspectors relates to occupational safety and health or employment breaches – not immigration status. The Government indicated that labour inspectors monitoring the Recognized Seasonal Employer (RSE) scheme worked very closely with immigration officials to ensure that the high employment standards of the programme are maintained.

The Committee notes the Government’s statement that there are five labour inspectors with specific responsibility for monitoring the RSE scheme. As the RSE scheme requires employers to provide certain terms and conditions in excess of minimum labour standards these labour inspectors audit the participating employers with respect to these higher requirements. The Government also indicates that the labour inspectorate undertakes joint work with Immigration New Zealand to combat the exploitation of migrant workers. The Committee once again asks that the Government provide information on the actions taken by labour inspectors if undocumented migrant workers are detected during the course of their inspection duties, as well as any measures taken to ensure the enforcement of employers’ obligations with regard to the statutory rights of these workers.

Article 3(1)(b). Educational activities conducted by the labour inspectorate. The Committee notes the statement of the NZCTU that, due to a low number of labour inspectors and the prioritisation of enforcement activities, the educative function of labour inspectors has been significantly reduced, and that this compromises the ability of inspectors to supply technical information and advice to employers and workers.

The Committee notes the response of the Government that the labour inspectorate has re-focused its resources on investigation and enforcement. The Government also indicates that the Ministry of Business, Innovation and Employment has resources dedicated to the provision of advice, information and education to employers and employees in addition to warranted inspectors. The Government also indicates that from 2013 onward, the work of health and safety inspectors was targeted towards compliance activities, rather than forums and information visits. In this regard, the Committee notes the significant decline in visits to provide information, with the number of forums and information visits undertaken by health and safety inspectors decreasing from 4,845 in 2011–12 to 685 in 2012–13. The Committee asks that the Government continue to provide information on the provision by labour inspectors of technical information and advice to employers and workers, and to provide information on any steps taken to reinforce the educational functions of labour inspectors.

Article 4. Coordination and cooperation among the different structures of labour inspection. The Committee notes the Government’s statement that it undertook a major reform of the health and safety sector, establishing a new workplace health and safety regulator in 2013 called WorkSafe New Zealand, which is a Crown Agent directed by a board of directors. The Government indicates that while the Ministry of Business, Innovation and Employment continues to administer the labour inspectorate, health and safety inspectors are now under the supervision of WorkSafe. The Government states that where the scope and nature of an inspection relates to both health and safety and labour matters, both types of inspectors coordinate their activities and collaborate as appropriate and necessary. The Committee asks that the Government continue to provide information on the measures taken to ensure coordination and collaboration between labour inspectors under the Ministry of Business, Innovation and Employment and the health and safety inspectors under WorkSafe.

Article 5(b). Collaboration between the labour inspection and employers’ and workers’ organizations. The Committee notes the statement of the NZCTU that both the labour inspectorate and WorkSafe have significant weaknesses in terms of tripartism and collaboration with workers’ and employers’ organizations. The NZCTU refers to the final report of April 2013 of the Independent Taskforce on Workplace Health and Safety, established by the Government, that indicated that one of the reasons the Department of Labour had been an ineffective regulatory body was that it had no shared responsibility at the governance level, including the absence of an active tripartite body, and that tripartism needed to be reflected in engagements between the Government and representatives of employers and workers, and in the governance of the regulators. The NZCTU indicates that while there have been improvements, including regular meetings between the General Manager of the labour inspectorate and the NZCTU, this is not sufficient. WorkSafe is not tripartite in its governance structure and the labour inspectorate remains non-tripartite.

The Committee notes the Government’s response that the labour inspectorate engages with employer and employee groups and that WorkSafe’s board of directors is also made up of both business and worker interests. The Committee asks that the Government continue to provide information on the arrangements made for collaboration between the labour inspection services and employers’ and workers’ organizations, as well as any steps taken or envisaged to strengthen this collaboration.

Article 10. Sufficient number of labour inspectors. The Committee notes the statement of the NZCTU that the number of labour and health and safety inspectors remains insufficient to effectively discharge their mandate. The NZCTU indicates that the ratio of labour inspector to workers is approximately one inspector to 14,162 workers, which does not befit the country’s status as an industrial market economy and has placed considerable strain on the inspectorate. This is exacerbated by the country’s low population density and the considerable number of workers in remote workplaces such as farms, orchards and forests. The splitting of the monitoring of employment standards and health and safety standards, while necessary given the country’s poor health and safety record, has compounded this by doubling the amount of time (including travel) needed to inspect a workplace for breaches of employment and health and safety standards. The NZCTU further indicates that, given this poor record, it is concerning to note the 26 per cent drop in the number of health and safety inspectors between 2008 and 2013 (from 160 to 119 inspectors). It refers to the final report of April 2013 of the Independent Taskforce on Workplace Health and Safety, which stated that the projected increase of the number of health and safety inspectors to 180 in 2014–15 was not sufficient to achieve significant and sustained improvements in workplace health and safety. This report recommended increasing funding for inspectors to achieve a ratio of 1.07 inspectors per 10,000 workers by 2015–16.

The Committee notes the Government’s statement that in July 2013, the Cabinet approved additional funding that will result in WorkSafe having 200 health and safety inspector positions by mid-2016, and that it has an interim goal of having 180 such inspectors by mid-2015. The Committee also notes that the number of labour inspectors in employment matters has increased from 33 (in 2011) to 41 inspectors. The Committee asks that the Government pursue its efforts to increase the number of labour inspectors, in order to ensure that there is a sufficient number to secure the effective discharge of the duties of the inspectorate. It also asks that the Government continue to provide information on the measures taken in this regard, including the recruitment of inspectors to fill the newly created posts.

Articles 17 and 18. Effective enforcement of legal provisions. The Committee notes the Government’s statement that work is currently underway to develop a new intervention approach for WorkSafe. It also notes that the Government released a consultation paper on the enforcement of employment standards, which considered increasing the powers of labour inspectors to improve the performance of their enforcement function, as well as increasing the applicable penalties for labour violations to increase their deterrent effect. The Government indicates that public consultation on this paper closed in July 2014, and that it is currently reviewing the feedback received. The Committee asks that the Government continue to provide information on measures taken to improve the enforcement of labour standards. In this regard, it asks that the Government provide information on the outcome of the public consultations held, including any measures taken to strengthen the powers of labour inspectors or to increase the relevant penalties.

Articles 20 and 21. Publication and content of the annual report on the work of the labour inspectorate. The Committee notes the Government’s statement that the Ministry of Business, Innovation and Employment publishes an annual report, which contains information pertaining to labour inspection. The Committee notes the comments of the NZCTU that the data contained in this report is too broadly stated, and that the labour inspectorate should publish a separate account of its activities on a yearly basis, disaggregating the type of complaint received along with the type of workplace and resolution. In this regard, the Committee notes that this annual report of the Ministry contains information on the number of investigations and workplace assessments undertaken, but does not provide information on the staff of the labour inspection system, the workplaces liable to inspection and the number of workers employed therein, the number of violations detected and penalties imposed. It also observes that this report does not contain statistics on occupational accidents and diseases, but notes in this respect the Government’s statement that due to the creation of WorkSafe, information relating to safety and health will be included in its annual report in the future. The Committee asks that the Government take the necessary measures to ensure that in the future, the annual reports of the authorities responsible for labour inspection contain complete information on all the subjects listed in Article 21(a)–(g), including the number of inspectors, the number of workplaces liable to inspection and the number of workers employed therein, as well as data on the violations detected and the number and nature of the penalties imposed.