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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the New Zealand Council of Trade Unions (NZCTU), communicated with the Government’s report. The Committee also notes the observations of Business New Zealand, received separately on 31 August 2021 and communicated with the Government’s report.

The Committee takes note of the information provided by the Government in reply to its previous requests concerning Articles 1(3) and 2(3) (scope of application), 9 (enforcement of laws and regulations), and 14 (measures to promote the inclusion of occupational safety and health (OSH) at all levels of education and training) of the Convention.

Articles 19 and 20 of the Convention. Cooperation between management and workers. Rights of workers and their representatives at the enterprise level. Following its previous comments on this matter, the Committee notes the indication in the report of the Government that work is underway to amend and remove an exemption in the Health and Safety at Work Act 2015 (HSWA). This exemption under sections 62(4) and 66(3) of the HSWA allows a “Person Conducting a Business or Undertaking” (PCBU) with fewer than 20 workers, in an industry not deemed to be high-risk, not to respond to a request to elect health and safety representatives or committees. The Committee notes the observations of the NZCTU indicating that they support such legislative amendments. The Committee further notes the observations of Business New Zealand that, currently, WorkSafe New Zealand can consider taking enforcement action if: (i) a PCBU does not have a deliberate, planned way to engage with workers or to support worker participation; (ii) workers do not have either a formal or informal way to engage and participate; (iii) there is no worker representation at work; (iv) worker engagement and participation are not working effectively; and (v) the PCBU is not tackling the problem effectively. The Committee requests the Government to continue to provide information on the progress made towards any amendment of the HSWA on this matter.

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

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.

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

Referring to its observation, the Committee wishes to raise the following additional points.

Articles 1(3) and 2(3) of the Convention. Scope and definitions. With reference to its previous comment, the Committee notes that the Defence Forces, which are generally excluded from accident investigations (section 26(2) of the Health and Safety in Employment Act, 1992 (HSE Act)), will be covered by section 6 of the Health and Safety Reform Bill (H&SR Bill), currently before Parliament, but that some exceptions are still envisaged in section 6(2). The Committee also notes the observation of the New Zealand Council of Trade Unions (NZCTU) indicating the exclusion, in section 13(1)(b) of the H&SR Bill, of home occupiers in relation to residential work and volunteer organizations that do not employ employees from the definition of the person conducting a business or undertaking who bears the OSH duties under the legislation. Recalling the broad scope of the Convention in Articles 1 and 2, the Committee requests the Government to continue to supply information regarding the exclusion in certain circumstances of the Defence Forces, residential workers and others from the application of the legislation giving effect to the Convention, to indicate the reasons for these residual exceptions, and to provide information on measures taken to ensure that those excluded are adequately protected.

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 that a new occupational safety and health (OSH) regime is envisaged in the H&SR Bill, which would centralise the standard setting activity and charge WorkSafe NZ with preparing a first tranche of general regulatory work and a second tranche concerning specific industry-related regulations. The Committee also notes that a “Working Safer” strategy has been issued by the Government, with the objective of implementing, evaluating and monitoring a research programme within WorkSafe NZ. The Committee requests the Government to continue to provide information on the preparation and implementation of regulations by WorkSafe NZ. It also requests the Government to provide further information on the research programme set up within WorkSafe NZ and the impact of this research.

Article 13. Protection of workers from undue consequences. With reference to its previous comment, the Committee notes the Government’s statement that the H&SR Bill will contain similar provisions as the HSE Act in relation to a worker’s right to refuse to perform work that may cause them serious harm. It also notes the Government’s indication that a programme to provide codes of practice and guidance to businesses on how to undertake their health and safety duties has been implemented. The Committee also notes the observation of the NZCTU, indicating that the whistleblowing procedures established in the Protected Disclosures Act are focused on the public sector, and that these procedures may not be appropriate in relation to health and safety. The NZCTU calls for a review of the legislation. The Committee requests the Government to provide further information on measures taken, in law and in practice, to ensure that all workers benefit from the protection provided for in this Article of the Convention.

Article 14. Measures to promote the inclusion of OSH at all levels of education and training. The Committee notes that the resources of WorkSafe New Zealand have been increased to enable the increase of occupational injury prevention and the preparation of a wider range of OSH related information, and that a project relating to the training of OSH professionals has been put in place. The Committee also notes that the observation of the NZCTU highlight the weaknesses in OSH education. The NZCTU indicates and that poor understanding and handling of issues relating to occupational diseases is a particularly important problem. The Committee requests the Government to provide information on the measures taken or envisaged to ensure that OSH is included in all levels of education and training as well as measures to strengthen training relating to occupational diseases. It also requests the Government to provide further details on the project aimed at training OSH professionals.

Decisions of courts of law. Application of the Convention in practice. The Committee notes the information provided by the Government, including the number of prosecutions resulting in convictions and the key areas of prosecution, notably the failure to notify the Regulator of the occurrence of serious harm or accidents in the workplace. It also notes from the statistics provided with regard to the types of injuries sustained in workplaces that the majority occur in the agricultural, forestry, mining and construction sectors. Furthermore, the Committee notes the observation by the NZCTU alleging that the statistics provided by the Government are not adequate to give a general sense of the court decisions and of the application of the Convention in practice. The NZCTU requests the Government to provide summaries of significant decisions as part of the reporting process. The Committee requests the Government to continue to supply information on the application of the Convention in practice, including copies of relevant court cases, and to provide information on the measures taken or envisaged, in law and in practice, to address the number of accidents occurring in the agricultural, forestry, mining and construction sectors.

[The Government is asked to reply in detail to the present comments in 2016.]

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

The Committee notes that the report of the Government received on 30 September 2014 includes observations by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand, as well as the responses provided by the Government.

Legislation. The Committee notes that the work of the Independent Taskforce on Workplace Health and Safety and the Royal Commission on the Pike River Coal Mine Tragedy were followed-up in 2013 with the adoption of the WorkSafe New Zealand Act, which instituted WorkSafe New Zealand (WorkSafe NZ), a Crown Agent with greater resources than its predecessors. It also notes the adoption of the Mines Rescue Act and the indication that the Health and Safety Reform Bill (H&SR) is currently before Parliament. The Committee requests the Government to provide a copy of the H&SR Bill once it has been adopted and to continue to provide information on the measures undertaken with regard to the application of the Convention.

Articles 7 and 9 of the Convention. Enforcement of laws and regulations. The Committee notes the indication that the Government has increased the funding for WorkSafe NZ through the augmentation of the health and safety levy, and that according to the Statement of Intent issued by WorkSafe NZ for 2013–17, the functions and systems of the Crown will be expanded. The Committee also notes the observation of the NZCTU alleging the continued under-resourcing of the regulator’s enforcement function. The Committee requests the Government to continue to provide information on implementation of its plans to expand the functions and systems of WorkSafe NZ, with a view to ensuring the enforcement of occupational safety and health laws and regulations.

Article 19. Arrangements at the level of the undertaking. With reference to its previous comment, the Committee notes that section 78(1(c)) of the H&SR Bill requires a person conducting a business or undertaking to allow a health and safety representative to spend as much time as is reasonably necessary to perform their functions or to exercise their powers. The Committee also notes the observation of the NZCTU alleging that the provisions of the H&SR Bill are not sufficient, and must be backed by clear guidance and strong enforcement. The NZCTU also indicates that the H&SR Bill removes the statutory minimum number of days per year for health and safety representative training. The Committee notes the Government’s response in this regard that the Transport and Industrial Relations Committee will consider all submissions on the H&SR Bill carefully, including those of the NZCTU. The Committee requests the Government to continue to provide information on the measures taken to give effect to Article 19 with respect to the rights of health and safety representatives.

Article 20. Cooperation between management and workers. With reference to its previous comment, the Committee notes that the H&SR Bill proposes a regulatory regime where persons conducting a business or undertaking will have the duty to have a system of worker representation under which the election of a safety and health representative will be possible if the workers request it, or appointed at the initiative of the person conducting a business or undertaking (section 65 of the H&SR Bill). The Committee also notes the NZTCU’s reference to the report of the Independent Taskforce on Workplace Health, according to which there are low levels of employee participation in processes for identifying and managing workplace health and safety issues. The NZCTU states that the system proposed in the H&SR Bill may be used by certain employers as a justification for continuing poor health and safety practices in the workplace. The Committee requests the Government to provide further information on the measures taken or envisaged to ensure cooperation between management and workers in practice.

Article 21. Expenditure for workers. With reference to its previous comment, the Committee notes the Government’s indication that the right of contractor employees to benefit from cost-free OSH measures is not clearly established in the current legislation and that the Government will clarify this situation in the H&SR Bill. Section 14 of the H&SR Bill defines “worker” in a way that would include the employees of contractors. The Committee also notes the observation of the NZCTU alleging that the wording of the H&SR Bill may act as an incentive for persons conducting a business or undertaking to structure their contracting arrangements in order to use subcontractors instead of employees so as to avoid the application of section 28 of the H&SR Bill prohibiting persons conducting a business or undertaking from imposing costs on workers for protective equipment. With reference to the response of the Government indicating that the Transport and Industrial Relations Committee is considering the submissions of the NZCTU on this issue, the Committee requests the Government to provide further information on the measures taken, in law and in practice, to ensure that OSH measures do not involve any expenditure by workers.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2016.]

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes with interest the comprehensive and detailed information provided by the Government in its first report, and notes that the Health and Safety in Employment Act 1992 (HSE Act), and its accompanying regulations, the Hazardous Substances and New Organisms Act 1996, and the Employment Relations Act 2000, ensure legislative conformity with a majority of the provisions of the Convention. The Committee also notes the observations by the New Zealand Council of Trade Unions (NZCTU) and Business New Zealand, and the responses provided thereto by the Government.

Article 1, paragraph 3; and Article 2, paragraph 3, of the Convention. Scope and definitions. The Committee notes the information provided by the Government indicating that the New Zealand Defence Forces are excluded from the HSE Act’s provisions relating to accident investigation and inspection of high defence areas; and that occupiers of a home do not have duties to people who perform residential work. The Committee asks the Government to indicate the reasons for such exclusions and the measures taken to give adequate protection to workers in excluded branches and towards a wider application of the Convention.

Article 5 and Article 11. Main spheres of action under the national policy and functions progressive to give effect to the national policy. The Committees notes the NZCTU’s comment indicating that the National Occupational Health and Safety Advisory Committee (NOHSAC), established to provide independent advice directly to the Minister of Labour on major occupational health and safety issues, identified significant gaps in guidance materials intended to encourage compliance with the performance-based framework of the HSE Act; a lack of resources; and a need for more support for the occupational safety and health (OSH) regulatory framework. The Committee notes the Government’s response indicating that increased resource was provided in 2007 for a range of health and safety initiatives including proactive support for businesses through standard setting and specialist support; and that a project has been established to review all standard and guidance material either produced or endorsed by the Government since 1992, with a view to developing a framework to inform the development of future material. The NZCTU further states that NOSHAC was disestablished in June 2009 due to funding cuts, and that its roles have not been taken up by another government agency. The Committee notes the information provided by the Government indicating that the decision to disestablish NOHSAC was made in order to redirect resources to address the issues identified by NOHSAC, and that the Government will continue to have the ability to commission research and academic input to help identify and address emerging workplace health and safety issues on an “as needed” basis. The Committee asks the Government to provide further information on the outcome of measures undertaken to address the issues identified by NOHSAC, and information on the research and academic input undertaken to identify and address emerging workplace health and safety issues.

Articles 7 and 9. Enforcement of laws and regulations. The Committees notes the NZCTU’s statement indicating that while one of the roles of the health and safety inspectorate is to provide training and information for employers and employees, there must also be a strong focus on monitoring and enforcement, which requires continued recruiting and employing of an appropriate number and range of skilled field staff to carry out proactive and reactive site inspections across all industry groups. The Committee notes the Government’s response indicating that the tripartite Workplace Health and Safety Council has raised issues at meetings on monitoring and enforcement issues and will continue to do so, and that while the enforcement role of the inspectorate is primarily aimed at promoting excellent health and safety practices in the workplace, monitoring, investigation, and enforcement of health and safety legislation are key components of the Government’s response to any failures of compliance with the HSE Act, especially where non-compliance is of a serious nature. The Committee further refers to its 2007 comments to the Government on the Labour Inspection Convention, 1947 (No. 81), asking 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 safety and health, 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 Committee hopes that the Government takes all appropriate measures to ensure a proper balance between preventive and advisory functions on the one hand, and enforcement functions on the other, of the labour inspectorate as discussed in paragraphs 96–102 of the 2009 General Survey concerning occupational safety and health.

Article 12, subparagraph (c). Responsibilities of those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use. The Committee notes the information provided by the Government indicating that the Department of Labour undertakes research to keep abreast of scientific and technical knowledge, and is required to provide policy research and advice to the Government on issues of OSH. The Committee asks the Government to provide further information on measures taken with a view to ensuring that those who design, manufacture, import, provide or transfer machinery, equipment and substances for occupational use undertake studies and research or otherwise keep abreast of the scientific and technical knowledge necessary to comply with subparagraphs (a) and (b) of Article 12.

Article 13. Protection of workers from undue consequences. The Committee notes that the NZCTU is aware that workers in some industries are discouraged by their employers from reporting accidents and incidents relating to occupational harm, and that there are instances where workers are pressured to continue working even where safety guards and other protections are missing. The NZCTU states that while the Government prosecutes severe incidents where accidents have occurred resulting in loss of life or severe impairment, it seldom takes proactive steps to inspect for safety breaches, and that the NZCTU has made submissions regarding the need to lower the threshold of serious harm in health and safety legislation. The Committee notes the Government’s response indicating that the inspectorate’s approach toward small and medium enterprises is focused on increased provision of information and sector engagement, together with stronger enforcement actions, where required, enabling more effective compliance overall; and that revision of the definition of serious harm is under active consideration by the Government. The Committee asks the Government to provide further information on measures taken to address the abovementioned issues identified by the NZCTU, and on changes to the definition of serious harm.

Article 14. Measures to promote the inclusion of occupational safety and health at all levels of education and training. The Committees notes the NZCTU’s statement that the 2009 government budget reduced funding for a number of areas of tertiary education, including regulatory compliance and health and safety qualifications, and that there have also been substantial cuts in training of workplace health and safety representatives. The Committee notes the Government’s indication that conformity with this Convention is not affected, as the rights and obligations of employers and workers remain unaffected by these shifts, and that the Government will look at future options for the resourcing of health and safety representative training. The Committee asks the Government to provide further information on the effect reduced funding has had on the promotion of OSH at all levels of education and training, and to indicate measures taken to continue to give effect to Article 14.

Article 17. Two or more undertakings engaged in activities simultaneously at one workplace. The Committee notes the information provided by the Government indicating that, being a performance-based piece of legislation, the HSE Act addresses coordination and collaboration on health and safety in workplaces with two or more undertakings through a combination of duties on various parties, as well as the express requirement for employers to take all practicable steps to ensure the safety of employees at work. The Committee also notes with interest the information indicating that the Government is in the process of amending legislation to create a specific duty to collaborate where business undertakings share a workplace at the same time. The Committee asks the Government to provide a copy of the amended legislation once it has been adopted.

Article 19. Arrangements at the level of the undertaking. The Committee notes the NZCTU’s statement that there is no specific provision for health and safety representatives to have adequate work time or resources to carry out their duties under the HSE Act, and that in practice many representatives carry out their health and safety duties in addition to their regular work duties and in their own time. The Committee notes the Government’s response indicating that paid leave for adequate health and safety training is provided for under section 19E of the HSE Act, and that implicit in the employer’s duty is that health and safety representatives should be provided with reasonable opportunities to carry out their health and safety responsibilities. The Committee asks the Government to indicate measures taken to address the issues identified above by the NZCTU, and to provide further information on the application in practice of section 19E of the HSE Act.

Article 20. Cooperation between management and workers. The Committee notes Business New Zealand’s concern that the HSE Act’s requirement to have a health and safety representative, or committee, constitutes a disincentive for workers in general to involve themselves in health and safety matters. The Committee notes the Government’s response indicating that Part 2A of the HSE Act creates a duty for employers to provide reasonable opportunities for workers to participate effectively in ongoing processes for the improvement of health and safety in their place of work. The Committee asks the Government to provide further information on the application of this Article in practice, with reference to Business New Zealand’s concerns regarding the cooperation between management and workers.

Article 21. Expenditure for workers. The Committee notes the information provided by the Government indicating that under section 10(2)(b) of the HSE Act, employers are required to take all practical steps to provide, make accessible to, and ensure the use by the workers, of suitable clothing and equipment to protect them from any harm that may be caused by, or may arise out of, the hazard. The Committees also notes that the NZCTU is aware that many contracted workers are not provided with protective clothing or equipment, and if they supply such items, they are expected to pay for them. The Committee notes the Government’s response indicating that the duty under section 10(2)(b) does not apply to a principal in relation to contracted workers, and that while a principal is still responsible for the safety of contracted workers, this does not include the provision of such clothing and equipment. The Committee asks the Government to provide further information on the cost-free nature of all occupational safety and health measures, not just protective clothing and equipment; and to provide further information on the application of this Article in practice, with particular reference to contracted workers.

Part III and Part V of the report form. Decisions of courts of law; and application in practice. The Committee notes that the Government has not provided information on these Parts of the report form. The Committee asks the Government to include information on whether courts of law, or other tribunals, have given decisions involving questions of principle relating to the application of the Convention; to give a general appreciation of the manner in which the Convention is applied in the country; and to attach extracts from inspection reports and, where such exists, information on the number of workers covered by the legislation; the number and nature of the contraventions reported; and the number, nature and cause of accidents reported.