Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Occupational Safety and Health Convention, 1981 (No. 155) - New Zealand (Ratification: 2007)

The Committee notes the observations made by the New Zealand Council of Trade Unions (NZCTU) and of Business New Zealand incorporated in the Government’s report.

Articles 1(3) and 2(3) of the Convention. Scope of application. The Committee notes the Government’s indication, in response to the Committee’s previous request that while the new Health and Safety at Work Act 2015 (HSWA) covers the New Zealand Defence Force and intelligence and security agency workers, some limitations remain, and that home occupiers employing or engaging someone to do residential work in or on their home continue to be exempt from the obligations of the HSWA. Concerning the scope of application, the Committee also notes the observations made by the NZCTU that both volunteer workers and workers, while working inside prisons, are exempt from Part III on rights of worker engagement, participation and representation. The Committee requests the Government to continue to provide information on the protection of those workers excluded from the application of the legislation giving effect to the Convention, and indicate any progress towards the wider application of the legislation on safety and health.

Articles 5 and 11. Main spheres of action under the national policy and progressive development of functions to give effect to the national policy. The Committee notes the Government’s indication, in response to its previous request, concerning the undertaking of research and evaluation with a view to targeting WorkSafe’s interventions and the adoption of regulations giving effect to the HSWA, which were developed through extensive consultation. The Government states that the consultation process will continue work on the second phase of the development of regulations.

Article 9 of the Convention. Enforcement of laws and regulations. The Committee notes the Government’s indications in its report, in response to the Committee’s previous request, concerning the increased penalties in the HSWA, as well as the Government’s reference to new enforcement tools and compliance mechanisms. Considering that New Zealand has ratified the Labour Inspection Convention, 1947 (No. 81), the Committee refers, as concerns Article 9 of Convention No. 155, to the detailed comments, adopted in 2018, concerning the application of Convention No. 81, specifically as regards Article 2 (scope of application of labour inspection), Article 3(1) and (2) (additional duties entrusted to labour inspectors), Article 3(1)(b) (educational activities conducted by the labour inspectorate), Article 4 (coordination and cooperation among the different structures of labour inspection), Article 5(b) (collaboration with employers’ and workers’ organizations), Article 10 (number of labour inspectors), Articles 17 and 18 (effective enforcement of legal provisions), Articles 20 and 21 (annual report on the work of the labour inspectorate).

Article 13. Protection of workers from undue consequences. The Committee notes the Government’s information, in reply to the Committee’s previous request, concerning the provisions in the HSWA providing protection to workers from discrimination and dismissal by a “Person Conducting a Business or Undertaking” (PCBU), for carrying out health and safety-related activities or raising health and safety issues or concerns.

Article 14. Measures to promote the inclusion of occupational safety and health (OSH) at all levels of education and training. The Committee notes the Government’s reference, in response to its previous request, to a number of activities, particularly the 2016–26 workplan to address workplace health risks, which involve the provision of education through professional development courses, formal OSH programmes and tertiary education. The Committee also notes the Government’s reference to an increase in the skills of health and safety professionals, including through the work of the Health and Safety Association of New Zealand (HASANZ) initiated in 2014 which aims to raise professional standards among its associated members of health and safety professionals. The Committee requests the Government to provide information on the impact of these activities on the understanding and handling of issues relating to occupational diseases.

Articles 19 and 20. Cooperation between management and workers. Rights of workers and their representatives at the enterprise level. The Committee notes the Government’s indication, in response to its previous request, concerning the provisions in the new HSWA with regard to safety and health representatives and committees. In this respect, the Committee notes the observations made by the NZCTU that while in general, the HSWA takes steps forward on most aspects of health and safety, it is worse than previous legislation in relation to worker engagement, participation and representation. In this regard, the NZCTU particularly refers to the possibility of employers not to provide for elections of health and safety representatives (section 62(4)) or health and safety committees (section 66(3)) in small and medium-sized enterprises (outside of certain high risk industries). The Committee also notes that the NZCTU challenges the model used to assess whether an industry is high risk. The Committee requests the Government to provide information on the application of Articles 19 and 20 in practice with respect to consultation at the undertaking on OSH issues and cooperation.

Article 21. Expenditure for workers. The Committee notes the Government’s indication, in reply to the Committee’s previous request that, in view of the wide definition of workers in the HSWA, which includes contractors, the right of contractor employees to benefit from cost-free OSH measures is now clearly established in the legislation. In this respect, the Committee refers to section 28 of the HSWA, which provides that any duties of PCBUs may not be contracted out, as well as to Regulation 15 of the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016, which provides that PCBUs who direct the carrying out of work at a workplace must provide personal protective equipment to workers (unless this has been provided by another PCBU). The Committee takes note of this information.